NATIONAL MARINE FISHERIES SERVICE 

### ENDANGERED SPECIES ACT

. . BIOLOGICAL OPINION

Agency : Anny Corps of Engineers (ACOE), Philadelphia District

Activity Considered : Deepening of the Delaware River Federal Naviglltion Channel (ReiJ)itiation)

. FINERJ2011100574

Conducted by:

Date Issued:

Approved by:

.



### . Table of Contents

. <

1.0 rnTRODUCTION 4

2'.0 PROJECT HISTORy

, ; , : 4

2.1 Delaware River Channel 4

2.2 ESA Consultation on ACOE Maintenance of the Existing Channel 5

2.3 Channel Deepening Proposal andConsultation History : 8

3.0 DESCRIPTION OF THE PROPOSED ACTION : , .. 10

3.1 Action Area · i 10

.. 3.2 Proposed Deepening Project

.i



## . 11

,

. 3.3 Dredged Material Disposal · , : 16

·3.4 Maintenance Dredging · : ; 19

4.0 STATUS OF LISTED SPECIES IN THE ACTION AREA. 19

4.1 Overview of Status of Sea Turtles 20

4.2 l'Jorthwest Atlantic DPS of loggerhead sea turtle : 21

4.3 Status of Kemp's Ridley Sea Turtles 34

4.4 Status of Green Sea Turtles

, 38 /

4.5 Status of Leatherback Sea Turtles :

.. ; 42

4.6 Shortnose Sturgeon \ : 50

4.7 Status of Atlantic sturgeon ; ,' ;.; 64

J,.2

Status and Distribution of Shortnose Sturgeon in the Delaware River

................. 58

4.7 Status of Atlantic sturgeon

................................ ............ 64

4.8 Gulf of Maine DPS of Atlantic sturgeon

................................ ... 73

4.9 New York Bight DPS of Atlantic sturgeon

................................ . 77

4.10 Chesapeake Bay DPS of Atlantic sturgeon

................................ . 79

4.11 Carolina DPS of Atlantic sturgeon

................................ ....... 81

4.12 South Atlantic DPS of Atlantic sturgeon

................................ ... 86

4.13 Summary o f Available Information on Use of Action Area by Listed Species

......... 91

5.0 ENVIRONMENTAL BASELINE

................................ ......... 101

5.2 State or Private Actions in the Action Area

................................ 106

5.3 Other Impacts of Human Activities in the Action Area

....................... 109

6.0 C LIMATE CHANGE

................................ ................... 112

6.1 Background Information on Global climate change

.......................... 112

6.2 Species Specific Information on Climate Change Effects

...................... 114

6.3 Effects of Climate Change in the Action Area

.............................. 119

6.4 Effects of Climate Change in the Action Area to Atlantic and sho rtnose sturgeon

..... 120

6.5 Effects of Climate Change in the Action Area on Sea Turtles

................... 122

7.0 EFFECTS OF THE ACTION

................................ ............ 123

7.1 Hopper Dredge

................................ ................... 124

7.2 Hydraulic Cutterhead Dredge

................................ ......... 140

7.3 Dredged Material Disposal

................................ ........... 145

7.4 Blasting and Mechanical Dredging

................................ ..... 146

7.5 Maintenance Dredging

................................ .............. 151

7.6 Effects on Benthic Resources and Foraging

............................... 152

7.7 Dredge and D isposal Vessel Traffic

................................ ..... 154

7.8 Effects of Deepening on Substrate/Habitat Type

............................ 1 56

7.9 Effects of Deepening on Salinity

................................ ....... 157

7.10 Effects of Deepening on Dissolved Oxygen

................................ 162

7.11 Effects to Atlantic sturgeon spawning

................................ ... 163

7.12 Increased Use of Channel by Vessels

................................ .... 164

8.0 CUMULATIVE EFFECTS

................................ ............. 165

9.0 INTEGRATION AND SYNTHESIS OF EFFECTS

............................. 167

9.1 Shortnose sturgeon

................................ ................ 168

9.2 Atlantic sturgeon

................................ .................. 1723

9.2.1 Determination of DPS Composition

................................ ... 172

9.2.2 Gulf of Maine DPS

................................ ............... 172

9.2.3 New York Bight DPS

................................ ............. 175

9.2.4 Chesapeake Bay DPS

................................ ............. 179

9.2.5 South Atlantic DPS

................................ .............. 182

9.2.6 Carolina DPS

................................ ................... 185

9.3 Green sea turtles

................................ .................. 185

9 .4 Leatherback sea turtles

................................ ............. 185

9.5 Kemp’s ridley sea turtles

................................ ............ 185

9.6 Northwest Atlantic DPS of Loggerhead sea turtles

.......................... 188

10.0 CONCLUSION

................................ ..................... 193

11.0 INCIDENTAL TAKE STATEMENT

................................ ....... 193

11.1 Amount or Extent of Incidental Take

................................ .... 194

11.2 Reasonable an d prudent measures

................................ ...... 195

11.3 Terms and conditions

................................ ............... 197

12.0 CONSERVATION RECOMMENDATIONS

................................ . 203

13.0 REINITIATION OF CONSULTATION

................................ ..... 204

14.0 LITERATURE CITED

................................ ................ 205

APPENDIX A

. ................................ .......................... 247

APPENDIX B.

................................ ........................... 253

Appendix C

................................ ............................. 256

APPENDIX D

................................ ........................... 258

APPENDIX E

................................ ........................... 263

Appendix F.

................................ ............................ 2644

1.0 I NTRODUCTION This constitutes the biological opinion (Opinion) of NOAA’s National Marin e Fisheries Service (NMFS) issued pursuant to Section 7 of the Endangered Species Act (ESA) of 1973, as amended,

on the effects of the U

. S

. Army Corps of Engineers ongoing deepening of the Delawar e River Federal navigation channel from Philadelphia to the Sea. This Opinion is based on information provided in the Biological Assessment (BA) dated January 2009 ; a supplement to the BA dated February 9, 2009 ; a further supplement dated March 2011 ; an Environmental Assessment (EA) dated April 2009 ; a supplement to the EA dated September 2011 ; NMFS October 25, 1996 Opinion on dredging in the Philadelphia District of the Army Corps of Engineers (ACOE) ; a May 25, 1999 supplement to th e 1996 Opinion ; the February 2, 2001 Opinion on the Delaware River Main
Channel Bla sting Project ; our July 2009 Opinion on the deepening project ; and

, scientific papers

and o ther sources of information as cited in this Opinion . A complete administrative record of this consultation will be kept at the NMFS Northeast Regional Office.

2 .0 PROJECT HISTORY

2.1 Delaware River Channel The existing Delaware River Philadelphia to the Sea Federal navigation project was a uthorized by Congress in 1910 and modified in 1930, ’35, ’38, ’45, ’54 and ’58. This 96.5 mile long channel is

authorized f

or depths of 37 to 40 feet. The existing project provides for a channel from deep water in Delaware Bay to a point in the B ay, near Ship John Light, 40 feet deep 1 and 1,000 feet wide; thence to the Philadelphia Naval Base, 40 feet deep and 800 feet wide, with a 1 ,200

- foot width at Bulkhead Bar and a 1,000

- foot width at other channel bends; thence to Allegheny Avenue Philadelphia, PA; 40 feet deep and 500 feet wide through Horseshoe Bend and 40 feet deep and 400 feet wide through Philadelphia Harbor along t he west side of the channel. The east side of the channel in Philadelphia Harbor has a depth of 37 feet and a width of 600 feet. The 40

- foot channel from the former Naval Base to the sea was completed in 1942. The channel from the former Naval

Base to A llegheny Avenue was completed in 1962. There are 19 anchorages on the Delaware River. The Mantua Creek, Marcus Hook, Deepwater Point, Reedy Point, Gloucester and Port Richmond anchorages are authorized under the Philadelphia to the S ea project. The remai ning 13 are natural, deep

- water anchorages. The authorized anchorage dimensions are as follows: Mantua
Creek: 40’ x 2,300’ x 11,500’ (mean); Marcus Hook: 40’ x 2,300’ x 13,650’ (mean); Deepwater
Point: 40’ x 2,300’ x 5,200’ (mean); Reedy Point: 40’ x 2,30 0’ x 8,000’ (mean); Port Richmond:

37’ x 500’ (mean) x 6,400’; and, Gloucester: 30’ x 400’ (mean) x 3,500’. Mantua Creek anchorage is currently maintained to about 60% of the authorized width and a 37

- foot depth. The Marcus Hook anchorage, enlarged in 19 64, is maintained to the authorized dimensions. The anchorage at Port Richmond is about 35 feet deep, as are the Reedy Point and Deepwater Point anchorages. The Gloucester anchorage requires no dredging and is currently deeper than authorized. See Figur e 1 for map of the project location.

The existing authorized channel is maintained by the ACOE at 40 feet and is routinely dredged. There are wide variations in the amount of dredging required to maintain the Philadelphia to the S ea project. Some range s are nearly self

- maintaining and others experience rapid shoaling. The 40

- foot

1 All depths refer to mean low water.5

channel requires annual maintenance dredging in the amount of approximately 3,455,000 cubic yards. Of this amount, the majority of material is removed from the Marcus Hook (4 4%), Deepwater Point (18%) and New Castle (23%) ranges. The remaining 15 percent of material is spread throughout the other 37 channel ranges. The historic annual maintenance quantities for the Marcus Hook and Mantua Creek anchorages are 487,000 and 157, 000 cubic yards, respectively.

There are currently seven upland sites in the riverine portion of the project and one open

- water site, located in Delaware Bay, that are used for dredged material disposal

. The seven confined upland sites are National Park, Oldmans, Pedricktown North, Pedricktown South, Penns Neck, Killcohook
and Artificial Island. The open water site in Delaware Bay is located in the vicinity of Buoy 10.

This site is only approved for placement of sand and is only used for disposal of mat erial removed from the Bay (reaches D and E)

.

2.2 ESA Consultation on ACOE Maintenance of the Existing Channel In September 1986

, the Philadelphia District initiated formal consultation under Section 7 of the ESA, with regard to maintenance dredging of D elaware River Federal Navigation Projects from Trenton to the Sea, and potential impacts to the Federally endangered shortnose sturgeon ( Acipenser
brevirostrum ). “A Biological Assessment of Shortnose Sturgeon ( Acipenser brevirostrum ) Population in the Upp er Tidal Delaware River: Potential Impacts of Maintenance Dredging” was provided to NMFS with the initiation request. It was determined by the ACOE that maintenance dredging activities in the southern reaches of the Delaware River, specifically from Phila delphia to the Sea, were not likely to adversely affect shortnose sturgeon. In a letter dated June 17, 1994 we provided concurrence with this determination.

In September 1995, consultation was re initiated regarding potential impacts associated with

dre dging projects permitted, funded or conducted by the Philadelphia District. This batched consultation was to consider effects of the following actions on NMFS listed species: maintenance of the Philadelphia to Trenton Federal navigation channel, maintena nce of the Philadelphia to the Sea Federal navigation channel, several beach nourishment projects which used sand dredged from Delaware Bay and authorized borrow areas located along the New Jersey and Delaware coasts, and dredging projects conducted by pri vate applicants and authorized by the ACOE through their regulatory authority under Section 10 of the Rivers and Harbors Act. “ A Biological Assessment of Federally Listed Threatened and Endangered Species of Sea Turtles, Whales, and the Shortnose Sturgeon within Philadelphia District Boundaries: Potential Impacts of Dredging Activities” was provided to us for review. A n Opinion was issued by us on November 26, 1996 which considered effects of all projects conducted or authorized by the ACOE in the Philade lphia District. The Opinion concluded that the District’s dredging program , including maintenance of the Philadelphia to the Sea and Philadelphia to Trenton navigation projects, may adversely affect sea turtles and shortnose sturgeon, but was not likely t o jeopardize the continued existence of any threatened or endangered species under our jurisdiction. The Opinion included an Incidental Take Statement (ITS) which exempted the annual take by injury or mortality of three shortnose sturgeon. This Opinion w as amended with a revised ITS on May 25, 1999. The amended take statement issued on May 25, 1999 exempts the annual take of up to four shortnose sturgeon and four loggerhead sea

turtles or one Kemp’s ridley or one green sea turtle.**:B~,r,H~~oi~,** youn\y:'
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2.3 Channel Deepening Proposal and Consultation History

In 1983, the Philadelphia district was directed by Congress to begin feasibility studies regarding modifying the existing 40

- foot Delaware R iver main shipping channel. In 1992, a final feasibility report recommended that the channel be deepened to 45 feet. Congress authorized the deepening project for construction in 1992. The p roject would involve deepening the main channel of the

D elaware River from 40 to 45 feet from Philadelphia Harbor, PA an d the Joseph A. Balzano Marine Terminal (formerly the Beckett Street Terminal ) , Camden, NJ t o the mouth of the Delaware Bay as
well as the widening of 12 of the 16 bends in the channel and deepening the Marcus Hook Anchorage. It was anticipated that the p roject would result in the r emoval of approximately 26

million c ubic yards (CY) of material.

An E nvironmental I mpact S tatement (EIS) for this project was issued in 1992, a supplemental EIS
was issued in 1997 and a Record of Decision ( ROD) was signed in 1998. We provided comments
to the ACOE on the EIS and SEIS in letters dated March 1, 1995, February 14, 1997 and September 29, 1997.

In May 2000

, the Philadelphia District submitted a BA and request for consultation considering the effects of proposed rock blasting in the Marcus Hook range of the main channel deepening project on shortnose sturgeon . On January 31, 2001

, we issued an Opinion which concluded that rock blasting conducted from December 1 to March 15 may adversely affect, but is not likely to jeopardize the continued existence of shortnose sturgeon . The Opinion included an I TS that exempts the lethal take of 2 shortnose sturgeon and an unquantifiable amount of non

- lethal take.
The ITS included reasonable and prudent measures and terms and conditions including a time of year restriction, reporting requirements, and other measures to minimize the potential for injury or mortality of shortnose sturgeon during blasting operations.

Planning for t he deepening project was suspended in 2002 as a result of a review by the Government Accountability Office (GAO ) regarding the economic benefits of the project and the environmental impacts. In May 2007, the Philadelphia Regional Port Authority (PRPA) took over sponsorship of this project from the Del aware River Port Authority. In June 2008, the ACOE and the PRPA executed a Project Partnership Agreement for construction of the Delaware Main Stem and Channel Deepening Project from 40 feet to 45 feet. In December 2008, we were notified that the project was reactivated . A Public Notice was posted on the Philadelphia District's (District) website on December 18, 2008

, announcing that the District would conduct an environmental review of all applicable, existing and new information generated subsequent to the 1997 SEIS. We commented on that notice in a letter dated December 30, 2008. Also in this letter, we indicated that upon review of the project materials, it appeared that reinitiation of the 1996 and 2001 consultation s was appropriate.

Reinitiation of consultation is required if: “(a) the amount or extent of taking specified in the ITS is exceeded; (b) new information reveals effects of these actions that may affect listed species or critical habitat in a manner or to an extent not previously consi dered; (c) any of the identified actions are subsequently modified in a manner that causes an effect to the listed species that was not considered in the BO; or (d) a new species is listed or critical habitat designated that may be affected by the identifi ed actions” (50 CFR 402.16).9

As noted above, o n November 26, 1996, we issued a Biological Opinion to the Philadelphia

District , which concluded that maintenance dredging operations within the Philadelphia District were not likely to jeopardize the continu ed existence of any threatened or endangered species listed under NMFS’ jurisdiction. Following the exceedence of the ITS in 1998, o n May 25, 1999, in response to the authorized take level being exceeded, consultation was reiniti ated and we amended

the ex isting consultation with a revised ITS

. C onsultation on the blasting portion of the project had

been completed in February 2001. As noted in our December 2008 letter, there was new information that indicated that the proposed deepening may have effects t o listed species in a manner or to an extent not previously considered. This information included new information on the distribution and seasonal movements of shortnose sturgeon in the Delaware River as well as new information on the vulnerability of the species to capture in mechanical dredges and entrainment in hydraulic hopper dredges. Additionally, the project had been modified from the proposal outlined in the 1992 EIS and 1997 SEIS. Modifications include d changes to the amount of

material to be re moved in the initial dredge cycle as well as in maintenance dredging, plans for beneficial reuse of the material, and the anticipated schedule for completion.

On January 26, 2009, we received a letter from the ACOE requesting the initiation of consultat ion regarding the effects of the proposed deepening on listed species. Supplemental information was provided by the ACOE on February 9, 2009. Also sent in February 2009 was a letter from the ACOE clarifying that the scope of the proposed action under con sultation was the initial dredge cycle necessary to deepen the channel to 45 feet , including blasting at Marcus Hook, collectively referred to as the “construction” phase of the project, and 10 years of ACOE planned maintenance dredging. On March 12, 2009 , a revised project schedule was provided to us by the ACOE and on April 3, 2009 a final Environmental Assessment (EA) was distributed by the ACOE. Consultation was initiated on February 9, 2009.

A Biological Opinion was signed by NMFS on July 17 , 20 09 . In this Opinion, NMFS considered the effects of the proposed deepening project, including blasting and dredging, on listed sea turtles and shortnose sturgeon. By issuing the 2009 Opinion, we withdrew the 2001 Opinion on blasting. The first phase of th e deepening, in Reach C, occurred from March

– September 2010. No interactions with any NMFS listed species were observed.

In October 2010, we published two proposed rules to list five Distinct Population Segments (DPS) of Atlantic sturgeon. During the winter of 2010

- 2011, we discussed potential impacts of the deepening project on Atlantic sturgeon with the ACOE. In March 2011, ACOE completed a supplemental BA considering effects of the deepening on the proposed New York Bight DPS of Atlantic sturgeon. This BA was transmitted to us along with a request to conduct a conference to consider the effects of the proposed deepening on Atlantic sturgeon. In June 2011, the ACOE published a draft supplemental EA. In an August 15, 2011, letter we provide the AC OE with technical assistance regarding upcoming dredging of Reach B. The ACOE published a final EA in September 2011. Dredging in reach B was carried out in November and December 2011 , with no observations of interactions with any NMFS listed species . I n March 2012, we received ACOE reports on the tracking of tagged Atlantic and shortnose sturgeon during the dredging as well as a
report on pre

- and post

- dredge substrate sampling.

On April 6, 2012 , NMFS published two final rules listing five DPS s of At lantic sturgeon as10

threatened or endangered. As described in a letter dated May 3 , 2012, we reinitiated the 20 09 consultation to consider effects of the deepening project on Atlantic sturgeon. Consultation was reinitiated on April 6, 2012.

We provided a draft of this Opinion to the ACOE on June 22, 2012. Comments were received on July 2 and July 3, 2012. These comments have been addressed as appropriate. By issuing this Opinion

, we withdraw the Opinion dated July 17 , 20 09

.

3.0 DESCRIPTION OF TH E PROPOSED ACTION

3.1 Action Area The action area is defined in 50 CFR 402.02 as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” The action area for this

consultation inclu des the area affected by dredging and disposal activities as well as the area transited by project vessels. The action area, therefore, includes the entirety of the Philadelphia to the Sea Federal navigation channel, including the authorized anchorages an d bends to be widened. Additionally, the action area includes the beneficial use disposal areas at Kelly Island and Broadkill Beach. Further, the action area includes the areas where project vessels will transit to offload dredged material at the upland disposal areas, which is limited to the navigation channel and adjacent berthing areas. The action area will also encompass the underwater area where dredging will result in increased suspended sediment and where sound pressure waves associated with

blast ing will be experienced. The size of the sediment plume will vary depending on the type of dredge used and is detailed below. Effects of blasting are expected to be limited to an area with a
radius of 500 feet around the detonation site. The action area is illustrated in Figure 1, and is largely consistent with the Philadelphia to the S ea navigation channel.

3.1.1 Physical Characteristics of the Action Area The Delaware River Estuary is 132 miles long and extends from Cape May and Cape Henlopen to

T renton, New Jersey. The region of the estuary that is referred to as Delaware Bay is 45 miles long and extends from the Capes to a line between stone markers located at Liston Point, Delaware and Hope Creek, New Jersey (Polis et al. 1973). The estuary va ries in width from 11 miles at the Capes; to 27 miles at its widest point (near Miah Maull Shoal). Water depth in the bay is less than 30 feet deep in 80 percent of the bay and is less than 10 feet deep in much of the tidal river area.

Artificial Islan d is located approximately two miles upstream of the hypothetical line demarking the head of Delaware Bay. The tidal river in this area narrows upstream of Artificial Island and makes a bend of nearly 60 degrees. Both the narrowing and bend are accentuat ed by the presence of Artificial Island. More than half of the typical river width in this area is relatively shallow, less than 18 feet (5.5 meters), while the deeper part, including the dredged channel has depths of up to 40 feet (12.1 meters). The Del aware River between the fall line at Trenton (RM 138 (rkm 222) ) and Philadelphia (RM 100 (rkm 161) ) is tidal freshwater with semidiurnal tides. Mean tidal range at Philadelphia 5.9 ft (1.8 m) (U.S. Army Engineer District, 1975); water pH generally is abou t 6

- 8.

Tidal flow as measured near the Delaware Memorial Bridge (RM 67 (rkm 108) ), 20 miles above Artificial Island, was measured at 399,710 cfs (11,320 cubic meters per second) (USGS, 1966). Tidal flow of this magnitude is 17 times as great as the total average freshwater flow rate into the11

estuary. Proceeding toward the mouth of the estuary, tidal flow increasingly dominates freshwater downstream flow; proceeding upstream from the Delaware Memorial Bridge, the ratio of tidal flow
to net downstream flow becomes smaller as tidal influence decreases.

3.2 Proposed Deepening Project The deepening project as authorized by Congress (shown on Figure 1) provides for modifying the existing Delaware River Federal Navigation channel Philadelphia to the Sea Projec t from 40 to 45 feet at Mean Low Water with an allowable dredging overdepth of one foot, following the existing channel alignment from Delaware Bay to Philadelphia Harbor, Pennsylvania and the Joseph A.

Balzano Terminal, Camden, New Jersey. The channel si de slopes are 3 horizontal to 1 vertical. The project also includes deepening of an existing Federal access channel at a 45

- foot depth to the Joseph A. Balzano Terminal, Camden, New Jersey. The channel is divided into six reaches as
shown in Table 1. Th e lowermost end of reach E is located approximately 5 miles (8 km) from the theoretical line between Cape Henlopen and Cape May Point.

Reach River Miles River Kilometers

AA 102

- 97.1 164

- 156.3

A 97

- 85.1 156.2

- 137.1

B 85

- 67.1 137

- 108.1

C 67

- 55.1 108

- 8 8.6

D 55

- 41.1 88.5

- 66.1

E 41

- 5 66

- 8

Table 1. Description of Delaware River Channel Reaches

The existing channel is maintained at a depth of 40 feet deep at mean low water. Only portions of the channel that are currently between 40 feet and 45 feet at mean low water will be dredged for the deepening project. The surface area of the Delaware estuary from the Ben Franklin Bridge to the capes (excluding tidal tributaries) is approximately 700 square miles. The Philadelphia to the S ea Federal navigatio n channel has a surface area of 15.3 square miles, or approximately 2.2 percent of the total estuary surface area. For the 45

- foot deepening project, 8.5 square miles would be dredged; this is 1.2 percent of the total estuary surface area and 55 percent o f the existing channel. The remaining 6.8 square miles of the existing channel is already 45 feet deep or deeper. See Table

2 (below) for a description of the amount of material to be removed from each channel range.

The channel width (same as the exis ting 40

- foot project) is 400 feet in Philadelphia Harbor (length of 2.5 miles); 800 feet from the Philadelphia Navy Yard to Bombay Hook (length of 55.7 miles); and 1,000 feet from Bombay Hook to the mouth of Delaware Bay (length of 44.3 miles). The projec t includes 1 2 bend widenings at various ranges as listed below as well as provision of a two space anchorage to a depth of 45 feet at Marcus Hook, Pennsylvania. The existing turning basin adjacent to the former Philadelphia Naval Shipyard will not be deep ened as part of the 45 foot project.

Also included as part of the Federal project is the relocation and addition of navigation buoys at the

1 2 modified channel bends. Ten new buoys are proposed: Philadelphia Harbor (2), Tinicum Range12

(1), Eddystone Range (1), Bellevue Range (3), Cherry Island Range (1), Bulkhead Bar Range (1), and Liston Range (1).

The following channel bends will be modified:

1. LISTON

- BAKER: Maximum width increase on the east edge of 250 feet, over a distance of 4,500 feet south of the apex, and extending 3,900 feet north from the apex (BW2

– channel station 275 + 057);

2. MIAH MAULL

- CROSS LEDGE: 200 foot width increase at the apex of the west side of the bend;

3. BAKER

- REEDY ISLAND: 100

- foot width increase at the west edge apex of the bend o ver a distance of 3500 feet both north of and south of the apex (BW3

- channel station 265 + 035);

4. REEDY ISLAND

- NEW CASTLE: Maximum widening of 400 feet at the west apex of the bend, tapering to zero over a distance of 3,200 feet south of the apex and to z ero over a distance of 4,000 feet north of the apex (BW4

- channel station 238 +982);

5. NEW CASTLE

- BULKHEAD BAR AND BULKHEAD BAR

- DEEPWATER: The west edge of Bulkhead Bar range is extended by 300 feet to the south and 300 feet to the north; the widening taper s to zero at a distance of approximately 3,000 feet south of the south end of Bulkhead Bar and 3,000 feet north of the north end of Bulkhead bar (BW5

- channel
station 212 + 592 and 209 + 201);

6. DEEPWATER

- CHERRY ISLAND: A maximum channel widening of 375 fee t is required at the western apex of the bend. The widening tapers to zero at a distance of about 2,000 feet both north and south of the apex (BW6

- channel station 186 + 331);

7. BELLEVUE

- MARCUS HOOK: The east apex of the bend requires a 150 foot widening

ov er existing conditions, along a total length of approximately 4,000 feet (BW7

- channel station 141 + 459);

8. CHESTER

- EDDYSTONE: The southwest apex of the bend requires a maximum 225 foot widening, with a transition to zero at the northeast end of Eddystone range, over a linear distance of approximately 6,000 feet (BW8

- channel station 104 + 545);

9. EDDYSTONE

- TINICUM: The northeast apex of this bend requires a 200 foot widening, with a transition to zero at a distance of about 1,200 feet northeast and southwes t of the bend apex (BW9

- channel station 97 + 983);

10. TINICUM

- BILLINGSPORT: The north channel edge of Billingsport was widened by 200 feet. At the northern apex of the Tinicum

- Billingsport bend, this results in a maximum widening of approximately 400 feet, with a transition to zero at a distance of about 2,000 feet west of the apex (BW10

- channel station 79 + 567 );

11. BILLINGSPORT

- MIFFLIN: The south apex of the bend was widened a maximum of 200 feet to the south, and transitioned to zero at a distance of appr oximately 3,000 feet northeast of the apex (BW11

- channel station 72 + 574);13

12. EAGLE POINT

- HORSESHOE BEND: The northwest edge of Horseshoe Bend requires a maximum widening of 490 feet to the north. The widening transitions to zero at a distance of approxim ately 4,000 lineal feet west of the west end of Horseshoe Bend, and at a distance of 1,500 lineal feet north of the north end of the bend (BW12

- channel station 44 + 820 to 41 + 217).

The current dredged material disposal plan for the riverine portion of the project will utilize the existing upland Federal disposal sites (National Park, Oldmans, Pedricktown North, Pedricktown South, Killcohook, Reedy Point South, and Artificial Island). In Delaware Bay, material will be used for beneficial use projects a t Kelly Island and Broadkill Beach.

3.2.1 Initial Dredging Cycle For the initial deepening, approximately 16 million cubic yards (cy) of material would be dredged and placed by hydraulic cutter

- suction (pipeline) and hopper dredges in confined upland di sposal

facilities in the Delaware River portion of the project area and for beneficial uses in Delaware Bay (See Table 1). In addition, approximately 77,000 cubic yards of rock would be removed in the vicinity of Marcus Hook, Pennsylvania and placed in th e Fort Mifflin confined disposal facility in Philadelphia. Blasting would be used in this area , followed by removal of rocky material with a mechanical dredge.

Initial construction began in March 2010. Initial construction is currently scheduled to co ntinue through January 2017. To date, the first and the second phase of dredging has been completed (Reach C and a portion of Reach B) . A summary of the proposed dredging remaining to be completed is shown in Table 2

. As noted in Table 2 , several differ ent types of dredges will be used for deepening activities. The “Type of Dredge” column indicates the type of dredge (or dredges) most likely to be used for each contract; however, with few exceptions, the actual type of dredge
used for each contract wil l be determined by the dredging c ontractor.

Table 2

. Summary of initial dredging quantities (remaining work as of May 2012)

Channel Reach River
Mile Duration (Months) Volume

(CY) Type of

Dredge Scheduled

Dates 2

Contract 3

– Reach A 97

- 84.42 6.1 1,666,600 Cutterhead, hopper or

mechanical August 2012

– February

2013

Contract 4

- Reach D 57.71

- 41.57 5.78 2,051,100 Cutterhead

or hopper December 2012

– June

2013

Contract 5

- Reach E (Broadkill Beach) 15.6 3.00 1,598,700 hopper (2) September

– December

201 3

Contract 6

– Reach AA 99.3

- 97.1 2.88 994,000 Cutterhead, hopper or
mechanical August

– November 2014

Contact 7

– Rock 76.4

- 77,000 Mechanical December 2014

–

2 Schedule is subject to change based on available funding

.14

Removal: Blasting and Clean Up Dredging 84.6 February 2015

Contract 8

- Reach E (Kelly Is land) 30.8

- 36.4 4.50 2,483,000 hopper (2) April

- August 2015

Contract 9

- Reach B 85

- 67 0.89 3,485,469 cutterhead August 2016

– January
2017

Reach E is considered to be in Delaware Bay. Figure 2 shows the c urrently proposed c onstruction

schedule and the type of dredge that would be used for different sections of the river for the Deepening Project as provided by the ACOE. The ACOE has indicated that the dredging plan was, to the extent practicable, developed to be in compliance with the Delaware Riv er Basin Fish and Wildlife Management Cooperative recommended dredging restrictions for protection of fishery resources in the Delaware River and Bay. Time periods shaded grey are the recommended periods for hopper dredging, cutterhead pipeline dredging, bucket dredging, sand placement and blasting.

Self

- Propelled Hopper Dredges Hopper dredges are typically self

- propelled seagoing vessels. They are equipped with propulsion machinery, sediment containers (i.e., hoppers), dredge pumps, and other speciali zed equipment required to excavate sediments from the channel bottom. Hopper dredges have propulsion power adequate for required free

- running speed and dredging against strong currents.

A hopper dredge removes material from the bottom of the channel in thin layers, usually 2

- 12 inches, depending on the density and cohesiveness of the dredged material (Taylor, 1990). Pumps within the hull, but sometimes mounted on the dragarm, create a region of low pressure around the dragheads; this forces water and se diment up the dragarm and into the hopper. The more closely the draghead is maintained in contact with the sediment, the more efficient the dredging (i.e., the greater the concentration of sediment pumped into the hopper). In the hopper, the slurry mixtu re of sediment and water is managed to settle out the dredged material solids and overflow the supernatant water. When a full load is achieved, the vessel suspends dredging, the dragarms are heaved aboard, and the dredge travels to the placement site wher e dredged material is disposed of. A hopper dredge is likely to be used in reaches A, D and E but could also be used in Reach AA

.

Bucket Dredges The bucket dredge is a mechanical device that utilizes a bucket to excavate the material to be dredged. Th e dredged material is placed in scows or hopper barges that are towed or pushed to the placement site. Bucket dredges include the clamshell, orange

- peel, and dragline types. The crane that operates the bucket can be mounted on a flat

- bottomed barge, on f ixed

- shore installations, or on a crawler mount. In most cases, spuds, or anchors and spuds are used to position the plant. Because the bucket dredge loads scows or hopper barges, work is suspended when a fully loaded barge is moved away and replaced wit h another empty scow or barge. Spuds are typically employed to maintain the position of a floating bucket dredge plant. A mechanical dredge will be used to remove debris following blasting in reach B. The ACOE has also indicated that a bucket dredge

may be used in Reach AA due to the presence of rocky substrate.15

Hydraulic Cutterhead Pipeline Dredges The cutterhead dredge is essentially a barge hull with a moveable rotating cutter apparatus surrounding the intake of a suction pipe (Taylor, 1990). By combining the mechanical cutting action with the hydraulic suction, the hydraulic cutterhead has the capability of efficiently dredging a wide range of material, including clay, silt, sand, and gravel.

The largest hydraulic cutterhead dredges have 30 to 42 inch diameter pumps with 15,000 to 20,000 horsepower. The dredge used for this project is expected to have a pump and pipeline with approximately 30” diameter. These dredges are capable of pumping certain types of material through as much as 5

- 6 miles of pipeline, though up to 3 miles is more typical. The cutterhead pipeline plant employs spuds and anchors in a manner similar to floating mechanical dredges. A cutterhead dredge is likely to be used in reaches AA, A, B, C, and D.

Rock Blasting Appr oximately 77,000 cubic yards of bedrock from 18 acres in reach B near Marcus Hook, PA (RM 76.4 to 84.6) would be removed to deepen the navigation channel to a depth of 45 feet below mean lower low water. Rock will be placed in the Fort Mifflin dredged mat erial disposal site located in Philadelphia. In order to remove the rock by blasting, holes drilled into the rock will be packed with explosive at the bottom of the holes and the remainder of the drill

- hole filled with inert stemming material to the surfa ce in order to direct the force of the blast into the rock. The depth and placement of the holes along with the size and blast timing delays of the charges will be carefully controlled so that the amount of rock that is broken and energy levels released d uring the blasting operations is limited to the level required to break up the bedrock . The project would be conducted by repeatedly drilling, blasting, and excavating relatively small areas until the required
cross section of bedrock is removed. Blastin g operations will occur between December 1 and March 15, with approximately 2 to 6 blasts conducted per day. The broken and pulverized rock along with over lying sands and silts will be removed by a mechanical dredge. Blasting is scheduled

to occur in the winter of 2014

- 2015.

The ACOE has built several measures into the proposed action designed to minimize the effects of blasting on fish. These include plans to:

 Minimize the size of explosive charges per delay (time lag during detonation ) and the n umber of days of explosive exposure;

 Subdivide the explosives deployment, using suitable detonating caps with delays or delay

connectors for detonation cord , to reduce the seismic energy and total pressure changes induced by the blasting ;

 Use decking (expl osives separated by delays) in drill holes to reduce total pressure changes ;

 Use angular stemming material in the blasting hole s above the explosive charges ( specifically sized angular rock fragments backfilled in the drill holes to contain the explosive energy and reducing the unwanted effects of a pressure wave s emanating from the blast and flyrock ) ;

 Use scare charges for each blast; and,

 Monitor impacts to fish from blasting.

Specifically, for each blast, the ACOE proposes to monitor an area with a r adius of 500 feet surrounding the detonation site with sonar or other imaging techniques designed to document fish in this area. Surveys will begin 20 minutes prior to the blast and if any fish are observed in the16

monitoring zone, blasting will be delayed until the fish leave the area. Additionally, two scare charges shall be used at each blast. The scare charges shall be detonated in close proximity to each blast. Each individual scare charge shall not exceed a TNT

- equivalent weight of 0.1 lb. The

det onation of the first scare charge will be 45 seconds prior to the blast, with the second scare charge detonated 30 seconds prior to the blast. The ACOE will also monitor blast pressures and upper limits will be imposed on each series of 5 blasts so that a verage peak pressure shall not exceed 70 pounds per square inch (psi) at a distance of 140 feet and maximum peak pressure shall not exceed 120 psi at a distance of 140 feet. The ACOE is also considering the use of trawlers to relocate fish away from the bl asting site.

3.3 Dredged Material Disposal As stated above, it is anticipated that approximately 16 million y 3 of material will be removed from the channel over a five year period during initial construction. All material removed from reaches AA, A, B , C, and D, regardless of dredge type, will be disposed of at an upland location. Material removed from reach E will be used at a beneficial use site (see below). Approximately 4 million y 3

of suitable material removed from the channel in reach E will be used for wetland restoration or beach nourishment. Descriptions of the proposed beneficial use sites are provided below.

3.3.1 Kelly Island (Delaware) As stated by the ACOE, the main purposes of the Kelly Island wetland restoration project are to

resto re intertidal wetlands using dredged sediment from the deepening of the Delaware River navigation channel, stem erosion of the Kelly Island shoreline estimated at 20 feet per year, provide extensive sandy beach for spawning horseshoe crabs, and provide con tinued protection to the
entrance of the Mahon River.

The site will be constructed as an impoundment and remain as such until the sediments consolidate and vegetation becomes established. At that time, the State of Delaware will decide whether to open th e site up to unregulated tidal inundation. The option to convert back to an impoundment will be maintained. Following construction, the site will be monitored to insure that the goals of the project are met and that no adverse impacts occur, particularly impacts to oyster beds.

Features of the project include:

• Sixty acres of wetlands where the substrate will consist of an estimated 55,000 cubic yards of silt and 645,000 cubic yards of sand.

• An offshore containment dike made of 1.7 million cubic yards of sand that will provide up to 5,000 linear feet of sandy beach. The crest of the dike will be at +10 ft MLW providing substantial spawning habitat for horseshoe crabs.

• A geotextile tube within the core of the offshore dike that provides overwash protection and contingency protection against breaching.

• Timber groins to limit sand transport along the beach.

• Option for water level control or free tidal exchange with the bay.

Construction of the sand dikes will begin at the south end gaining access to the site from the Mahon River channel. Once the dikes are constructed, the interior will be filled. Filling will take approximately 4 months. The total time to construct Kelly Island is 6 months with construction scheduled to occur between April and September.17

Once the containment area/beach is constructed, fine

- grained sediment will be placed first followed by placement of sand. The volume of sediment to be placed in the site will ultimately achieve a surface elevation of +5 feet MLW which is at the upper p art of the tidal range. After construction, and possibly for several years, the water levels in the site will be controlled. The offshore dike will
have a crest elevation of +10 feet MLW. This elevation is coincident with the water level for a

return in terval between 10 and 25 years. It is only during rare events that this sand dike will be overtopped. As noted in the BA, the dike is expected to provide up to 5,000 linear feet of spawning
habitat for horseshoe crabs.

The crest width of the dike will b e 200 feet at its narrowest and 350 feet at its widest. The volume of sand in the cross section of the dike will be constant, i.e. 845 cubic yards per linear yard. Therefore, the crest width of the dike in shallow water will be greater than in deeper wate r. The total volume of sand required for the offshore dike is 1.7 million cubic yards (which includes a quantity sufficient to offset an estimated one foot of settlement). The offshore slope of the dike is estimated to be initially 1:20, and after the fi rst year of “weathering” it should equilibrate to a milder 1:40 slope.

The southern end of the offshore dike will terminate on the island. The elevation of the crest of the dike will transition from +10 feet MLW to the +7 feet MLW (approximate) elevation of the existing marsh. The dike will extend onto the island far enough to prevent southerly waves at high water levels from damaging any portion of the interior of the project. The dike will also extend beyond its
connection with the landward dike.

The northern end of the offshore dike will extend approximately 300 feet beyond Deepwater Point roughly parallel to the shoreline. The outlet works for the project will be placed at Deepwater Point, and so the offshore dike will protect that location. A geo textile tube will be placed within the offshore dike as a factor of safety against a breach in the dike due to an extreme event and overwash. The crest of the tube will be placed to a crest elevation of +7 feet MLW. The tube will

then be buried under an additional three feet of sand bringing the crest of the dike up to elevation +10 feet MLW. The protection that the tube provides should allow time for maintenance or repair work to be planned and executed if a breach should develop due to overwash.

A lan dward dike will be constructed along the edge of the existing marsh with a crest elevation of
+8 feet MLW. The dike crest width will be 20

- 30 feet. The dike will prevent dredged material from flowing across or settling in the existing marsh. The dike wi ll be built

- up by trucking sand from the larger offshore dike to the landward dike during construction. The dike will not be constructed by hydraulic placement of sand. The dike will be left in place after construction to impound the site. In the future , if the State of Delaware decides that the site should function with unregulated tidal exchange with the bay, the landward dike may be removed. However, if the capability to impound the site at some future date is necessary, then the landward dike should not be
removed.

Sheetpile groins made of either timber or vinyl will be placed along the perimeter of the offshore dike to help limit longshore transport. Although the cross

- section of the dike is designed to sustain sediment losses for many years witho ut losing any of its function, groins will increase the longevity18

of the project, reduce potential maintenance, and add a factor of safety against the risk that sand will be transported south along the project into the Mahon River entrance. The groins wil l extend seaward from the crest of the dike about 240 feet. They will extend landward from the crest of the dike about 50 feet. Therefore, their total length is 290 feet. The groins will follow the initial profile of the dike having a 1:20 slope from the crest of the berm to MLW. The crests of the groins will be nominally about 2 feet above the sand berm initial cross

- section. The groins will be spaced about 750 feet apart. At both ends of the project, terminal timber sheet

- pile groins will be construc ted that are 450 feet long. The groins will be constructed after the sand berm is constructed.

The outlet works for the marsh will be placed through a cross

- shore sand dike at the north end of the project extending from the tip of Deepwater Point to the offshore dike. The elevation of the crest of

the cross

- shore dike will be +8 feet MLW which is sufficient to prevent even the annual highest high tide from overtopping the dike. This elevation also provides sufficient freeboard so that water
levels in th e site can be held high if needed. The cross

- shore dike does not need additional elevation to prevent wave overtopping because it is protected from waves by the offshore dike. A geotextile tube like the one described for the offshore sand dike will be pl aced in the core of the

cross

- shore dike. The flows through the outlet works during dredging depend mainly on the depth
of water above the weir crests.

The outlet works will have outflow pipes that pass through the core of the cross

- shore dike. The

cros s

- section of the cross

- shore dike will be held to a minimum to minimize the length of outlet pipe required. The actual crest width of the dike will depend on the stability of the foundation upon
which the dike is built. The dike will be filled until a st able cross

- section is achieved. The dike will be constructed by moving sand from the offshore dike with heavy equipment so that steeper side slopes can be achieved which will minimize the dike cross

- section.

The outlet works provided at the north end of the project will control release of water during dredging. Several drop inlets are planned. The capacity of the outlet works will depend on the size of the dredge pump and discharge line, the frequency of hopper discharges (cycle time), and water

control requirements for post

- construction marsh management. But the potential to release water at a rate as high as 75

- 100 cfs may be required.

An outlet works at the southern end of the project will not be necessary for dredging purposes. However, tidal connec tion to the southern end of the site may be desired after the marsh develops and natural flow patterns emerge. Any additional tidal connection will be achieved, for example, through small tidal guts through the existing marsh to the Mahon River and not th rough the offshore
dike.

3.3.2 Broadkill Beach (Delaware) The Delaware Bay Coastline, DE & NJ

– Broadkill Beach, DE project was authorized for construction by Title I, Section 101 (a) (11) of the Water Resources Development Act of 1999. The
Delaware D epartment of Natural Resources and Environmental Control is the non

- Federal project sponsor. The project area is located along the Delaware Bay Coastline at Broadkill Beach, Sussex County, Delaware. The authorized plan for this project has the following components:

 A berm extending seaward 100 feet from the design line at an elevation of +8 ft NGVD. The beachfill extends from Alaska Avenue southward for 13,100 linear feet. Tapers of 1,000 feet19

extending from the northern project limit and 500 feet extendi ng from the southern project limit brings the total project length to 14,600 linear feet.

 On top of the berm lies a dune with a top elevation of +16 ft NGVD and a top width of 25
feet.

 A total initial volume of 1,598,700 cubic yards of sand fill would be p laced along the area. This fill volume includes initial design fill requirements and advanced nourishment.

 Periodic nourishment of 358,400 cubic yards of sand fill would be placed every 5 years.

 Planting of 174,800 square yards of dune grass and 21,800 lin ear feet of sand fence are included for dune stability.

 Vehicular access to the beach would be provided at Route 16 in the center of Broadkill Beach. Sand fence would be used to create a path 12 feet wide along both sides of the dune at a skewed angle to t he dune alignment. This would allow vehicles to climb along the side of the dune at a flatter slope than 5H:1V.

 Pedestrian access paths would be located at each street end in a similar fashion as the vehicular access. However, the access paths would be sma ller in width and at a somewhat steeper slope.

Dredging and disposal at Broadkill Beach will be executed as Contract 5 and scheduled for September

– December 201 3 . Beach grading will be done by bulldozer and is expected to take six months to complete dur ing the fall and winter

.

3.4 Maintenance Dredging The required maintenance dredging of the 45

- foot channel will increase by 862,000 cubic yards per year (cy/yr) from the current 3,455,000 average cy/yr for the 40

- foot channel for a total of 4,317,000 cy

/yr. Only areas shallower than 45 feet will be dredged during maintenance activities. Maintenance dredging in the river (Reaches AA

– C) usually takes place over an approximately 2 month period between August and December primarily using a hydraulic cutt erhead dredge; however, a hopper dredge may occasionally be used for this work. Approximately 3,845,000 cy of material will be removed from the river annually, with the majority of material removed from the Marcus Hook, Deepwater and New Castle ranges. A ll material excavated from the river portion of the project will continue to be placed in existing approved upland disposal areas. The timing and duration of maintenance dredging in the bay varies but typically occurs in the summer and fall. On

average, a pproximately 472,000 cy of material will be removed from the bay annually. Dredging in this area is done using a hopper dredge with open water disposal (at Buoy 10). As explained above, the proposed action under consideration in this consultation include s 10 years of annual maintenance dredging (through 2027)

.

4.0 STATUS OF LISTED SPECIES IN THE ACTION AREA Several species listed under NMFS’ jurisdiction occur in the action area for this consultation. While listed whales occur seasonally off the Atlan tic coast of Delaware and occasional transient right and humpback whales have been documented near the mouth of Delaware Bay , no listed
whales are known to occur in the action area . As such, no whale species will be further discussed in this Opinion.

N MFS has determined that the action being considered in this biological opinion may affect the20

following endangered or threatened species under NMFS’ jurisdiction:

Sea Turtles
Northwest Atlantic DPS of Loggerhead sea turtle ( Caretta caretta ) Threatened

L eatherback sea turtle ( Dermochelys coriacea ) Endangered Kemp’s ridley sea turtle ( Lepidochelys kempi ) Endangered Green sea turtle ( Chelonia mydas ) E ndangered/Threatened 3

Fish Shortnose sturgeon (

Acipenser brevirostrum ) Endanger ed Gulf of Maine DPS of Atlantic sturgeon ( Acipenser oxyrinchus oxyrinchus ) Threatened New York Bight DPS of Atlantic sturgeon Endangered Chesapeake Bay DPS of Atlantic sturgeon Endangered South Atlantic DPS of Atlantic sturgeon Endangered Carolina DPS of Atlantic sturgeon Endangered

This section will focus on the status of the various species within the action area, summarizing information necessary to establish the environmental baseline and to assess the effects of the proposed ac tion.

4.1 Overview of S tatus of Sea Turtles With the exception of loggerheads, sea turtles are listed under the ESA at the species level rather than as subspecies or distinct population segments (DPS). Therefore, information on the range

wide status of leatherback, Kemp’s ridley and green sea turtles is included to provide the status of each species overall. Information on the status of loggerheads will only be presented for the DPS affected by this action. Additional background information on the ran ge

- wide status of these species can be found in a number of published documents, including sea turtle status reviews and biological reports (NMFS and USFWS 1995; Hirth 1997; Marine Turtle Expert Working Group [TEWG] 1998, 2000, 2007, 2009; NMFS and USFWS 2 007a, 2007b, 2007c, 2007d; Conant et al. 2009), and recovery plans for the loggerhead sea turtle (NMFS and USFWS 2008), Kemp’s ridley sea turtle (NMFS et al. 2011), leatherback sea turtle (NMFS and USFWS 1992, 1998a), Kemp’s ridley sea turtle (NMFS et al. 2011) and green sea turtle (NMFS and USFWS 1991, 1998b).

2010 BP Deepwater Horizon Oil Spill The April 20, 2010, explosion of the Deepwater Horizon oil rig affected sea turtles in the Gulf of
Mexico. There is an on

- going assessment of the long

- term eff ects of the spill on Gulf of Mexico marine life, including sea turtle populations. Following the spill, juvenile Kemp’s ridley, green, and loggerhead sea turtles were found in Sargassum algae mats in the convergence zones, where

currents meet and oil coll ected. Sea turtles found in these areas were often coated in oil and/or had ingested oil. Approximately 536 live adult and juvenile sea turtles were recovered from the Gulf

3 Pursuant to NMFS regulations at 50 CFR 223.205, the prohibitio ns of Section 9 of the Endangered Species Act apply to all green turtles, whether endangered or threatened.21

and brought into rehabilitation centers; of these, 456 were visibly oiled (these and the following numbers were obtained from http://www.nmfs.noaa.gov/pr/health/oilspill/). To date, 469 of the live recovered sea turtles have been successfully returned to the wild, 25 died during rehabilitation, and 42 are still in care but will hopefu lly be returned to the wild eventually. During the clean

- up period, 613 dead sea turtles were recovered in coastal waters or on beaches in Mississippi, Alabama, Louisiana, and the Florida Panhandle. As of February 2011, 478 of these dead turtles had

bee n examined. Many of the examined sea turtles showed indications that they had died as a result of interactions with trawl gear, most likely used in the shrimp fishery, and not as a result of exposure to or ingestion of oil.

During the spring and summer of 2010, nearly 300 sea turtle nests were relocated from the northern Gulf to the east coast of Florida with the goal of preventing hatchlings from entering the oiled waters of the northern Gulf. From these relocated nests, 14,676 sea turtles, including 14,235 loggerheads, 125 Kemp’s ridleys, and 316 greens, were ultimately released from Florida beaches.

A thorough assessment of the long

- term effects of the spill on sea turtles has not yet been completed. However, the spill resulted in the direct mort ality of many sea turtles and may have had sublethal effects or caused environmental damage that will impact other sea turtles into the future. The population level effects of the spill and associated response activity are likely to remain
unknown for som e period into the future.

4.2 Northwest Atlantic DPS of loggerhead sea turtle The loggerhead is the most abundant species of sea turtle in U.S. waters. Loggerhead sea turtles are found in temperate and subtropical waters and occupy a range of habitats including offshore waters, continental shelves, bays, estuaries, and lagoons. They are also exposed to a variety of natural and anthropogenic threats in the terrestrial and marine environment.

Listing History Loggerhead sea turtles were listed as t hreatened throughout their global range on July 28, 1978. Since that time, several status reviews have been conducted to review the status of the species and make recommendations regarding its ESA listing status. Based on a 2007 5

- year status review of

t he species, which discussed a variety of threats to loggerheads including climate change, NMFS and FWS determined that loggerhead sea turtles should not be delisted or reclassified as endangered. However, it was also determined that an analysis and review of the species should be conducted in the future to determine whether DPSs should be identified for the loggerhead (NMFS and USFWS 2007a). Genetic differences exist between loggerhead sea turtles that nest and forage in the different ocean basins (Bowen 2003; Bowen and Karl 2007). Differences in the maternally inherited mitochondrial DNA also exist between loggerhead nesting groups that occur within the same ocean basin (TEWG 2000; Pearce 2001; Bowen 2003; Bowen et al. 2005; Shamblin 2007; TEWG 2009; NMF S and USFWS 2008). Site fidelity of females to one or more nesting beaches in an area is believed to account for these genetic differences (TEWG 2000; Bowen 2003).

In part to evaluate those genetic differences, in 2008, NMFS and FWS established a Loggerh ead Biological Review Team (BRT) to assess the global loggerhead population structure to determine whether DPSs exist and, if so, the status of each DPS. The BRT evaluated genetic data, tagging and telemetry data, demographic information, oceanographic fe atures, and geographic barriers to22

determine whether population segments exist. The BRT report was completed in August 2009 (Conant et al. 2009). In this report, the BRT identified the following nine DPSs as being discrete from other conspecific populati on segments and significant to the species: (1) North Pacific Ocean, (2) South Pacific Ocean, (3) North Indian Ocean, (4) Southeast Indo

- Pacific Ocean, (5) Southwest Indian Ocean, (6) Northwest Atlantic Ocean, (7) Northeast Atlantic Ocean, (8) Mediterranea n Sea, and (9) South Atlantic Ocean.

The BRT concluded that although some DPSs are indicating increasing trends at nesting beaches (Southwest Indian Ocean and South Atlantic Ocean), available information about anthropogenic threats to juveniles and adul ts in neritic and oceanic environments indicate possible unsustainable additional mortalities. According to an analysis using expert opinion in a matrix model framework, the BRT report stated that all loggerhead DPSs have the potential to decline in the f oreseeable future. Based on the threat matrix analysis, the potential for future decline was reported as greatest for the North Indian Ocean, Northwest Atlantic Ocean, Northeast Atlantic Ocean, Mediterranean Sea, and South Atlantic Ocean DPSs (Conant et a l. 2009). The BRT concluded that the North Pacific Ocean, South Pacific Ocean, North Indian Ocean, Southeast Indo

- Pacific Ocean, Northwest Atlantic Ocean, Northeast Atlantic Ocean, and Mediterranean Sea DPSs were at risk of extinction.

The BRT concluded that although the Southwest Indian Ocean and South Atlantic Ocean DPSs were likely not currently at immediate risk of extinction, the extinction risk was likely to increase in
the foreseeable future.

On March 16, 2010, NMFS and USFWS published a proposed rule (75 FR 12598) to divide the worldwide population of loggerhead sea turtles into nine DPSs, as described in the 2009 Status
Review. Two of the DPSs were proposed to be listed as threatened and seven of the DPSs, including the Northwest Atlantic Ocean DPS, were proposed to be listed as endangered. NMFS and the USFWS accepted comments on the proposed rule through September 13, 2010 (75 FR 30769, June 2, 2010). On March 22, 2011 (76 FR 15932), NMFS and USFWS extended the date by which

a final determinat ion on the listing action will be made to no later than September 16, 2011. This action was taken to address the interpretation of the existing data on status and trends and its
relevance to the assessment of risk of extinction for the Northwest Atlantic Ocean DPS, as well as the magnitude and immediacy of the fisheries bycatch threat and measures to reduce this threat. New information or analyses to help clarify these issues were requested by April 11, 2011.

On September 22, 2011, NMFS and USFWS issue d a final rule (76 FR 58868), determining that the loggerhead sea turtle is composed of nine DPSs (as defined in Conant et al ., 2009) that constitute species that may be listed as threatened or endangered under the ESA. Five DPSs were listed as endangered (North Pacific Ocean, South Pacific Ocean, North Indian Ocean, Northeast Atlantic Ocean, and Mediterranean Sea), and four DPSs were listed as threatened (Northwest Atlantic Ocean, South Atlantic Ocean, Southeast Indo

- Pacific Ocean, and Southwest Indian Oc ean). Note that the Northwest Atlantic Ocean (NWA) DPS and the Southeast Indo

- Pacific Ocean DPS were originally proposed as endangered. The NWA DPS was determined to be threatened based on review of nesting data available after the proposed rule was publ ished, information provided in public comments on the proposed rule, and further discussions within the agencies. The two primary factors considered were population abundance and population trend. NMFS and USFWS found that an endangered status for the NW A DPS was not warranted given the large size of the nesting population, the overall nesting population remains widespread, the trend for the nesting23

population appears to be stabilizing, and substantial conservation efforts are underway to address

threats. This final listing rule became effective on October 24, 2011.

The September 2011 final rule also noted that critical habitat for the two DPSs occurring within the U.S. (NWA DPS and North Pacific DPS) will be designated in a future rulemaking. Informa tion from the public related to the identification of critical habitat, essential physical or biological features for this species, and other relevant impacts of a critical habitat designation was solicited. Currently, no critical habitat is designated fo r any DPS of loggerhead sea turtles, and therefore, no critical habitat for any DPS occurs in the action area.

Presence of Loggerhead Sea Turtles in the Action Area The effects of this proposed action are only experienced within the Atlantic Ocean. NM FS has considered the available information on the distribution of the 9 DPSs to determine the origin of any loggerhead sea turtles that may occur in the action area. As noted in Conant et al. (2009), the range of the four DPSs occurring in the Atlantic O cean are as follows: NWA DPS

– north of the equator, south of 60° N latitude, and west of 40° W longitude; Northeast Atlantic Ocean (NEA) DPS

– north of the equator, south of 60° N latitude, east of 40° W longitude, and west of 5° 36’ W longitude;

South A tlantic DPS

– south of the equator, north of 60° S latitude, west of 20° E longitude, and east of 60° W longitude; Mediterranean DPS

– the Mediterranean Sea east of 5° 36’ W longitude. These boundaries were determined based on oceanographic features, logg erhead sightings, thermal tolerance, fishery bycatch data, and information on loggerhead distribution from satellite telemetry and flipper tagging studies. While adults are highly structured with no overlap, there may be some degree of overlap by juvenile s of the NWA, NEA, and Mediterranean DPSs on oceanic foraging grounds (Laurent et al. 1993, 1998; Bolten et al. 1998; LaCasella et al. 2005; Carreras et al. 2006,

Monzón

- Argüello et al. 2006; Revelles et al. 2007). Previous literature (Bowen et al. 2004) has suggested that there is the potential, albeit small, for some juveniles from the Mediterranean DPS to be present in U.S. Atlantic coastal foraging grounds. These conclusions must be interpreted with caution however, as they may be representing a share d common haplotype and lack of representative sampling at Eastern Atlantic rookeries rather than an actual presence of
Mediterranean DPS turtles in US Atlantic coastal waters. A re

- analysis of the data by the Atlantic loggerhead Turtle Expert Working Grou p has found that that it is unlikely that U.S. fishing fleets are interacting with either the Northeast Atlantic loggerhead DPS or the Mediterranean loggerhead DPS (Peter Dutton, NMFS, Marine Turtle Genetics Program, Program Leader, personal communication, September 10, 2011). Given that the action area is a subset of the area fished by US fleets, it is reasonable to assume that based on this new analysis, no individuals from the Mediterranean DPS or Northeast Atlantic DPS would be present in the action ar ea. Sea turtles of the South Atlantic DPS do not inhabit the action area of this consultation (Conant et al. 2009). As such, the remainder of this consultation will only focus on the NWA DPS, listed as threatened.

Distribution and Life History

Ehrhar t et al. (2003) provided a summary of the literature identifying known nesting habitats and foraging areas for loggerheads within the Atlantic Ocean. Detailed information is also provided in
the 5

- year status review for loggerheads (NMFS and USFWS 2007a), the TEWG report (2009), and the final revised recovery plan for loggerheads in the Northwest Atlantic Ocean (NMFS and USFWS 2008), which is a second revision to the original recovery plan that was approved in 1984 and subsequently revised in 1991.24

In t he western Atlantic, waters as far north as 41  N to 42  N latitude are used for foraging by juveniles, as well as adults (Shoop 1987; Shoop and Kenney 1992; Ehrhart et al. 2003; Mitchell et al. 2003). In U.S. Atlantic waters, loggerheads commonly occur t hroughout the inner continental shelf from Florida to Cape Cod, Massachusetts and in the Gulf of Mexico from Florida to Texas, although their presence varies with the seasons due to changes in water temperature (Shoop and Kenney 1992; Epperly et al. 1995a, 1995b; Braun and Epperly 1996; Braun

- McNeill et al. 2008;

Mitchell et al. 2003). Loggerheads have been observed in waters with surface temperatures of 7  C

to 30  C, but water temperatures ≥11  C are most favorable (Shoop and Kenney 1992; Epperly et al.
199 5b). The presence of loggerhead sea turtles in U.S. Atlantic waters is also influenced by water depth. Aerial surveys of continental shelf waters north of Cape Hatteras, North Carolina indicated that loggerhead sea turtles were most commonly sighted in w aters with bottom depths ranging from 22 m to 49 m deep (Shoop and Kenney 1992). However, more recent survey and satellite tracking data support that they occur in waters from the beach to beyond the continental shelf (Mitchell et al. 2003; Braun

- McNeill and Epperly 2004; Mansfield 2006; Blumenthal et al. 2006; Hawkes et al. 2006; McClellan and Read 2007; Mansfield et al. 2009).

Loggerhead sea turtles occur year round in ocean waters off North Carolina, South Carolina, Georgia, and Florida. In these ar eas of the South Atlantic Bight, water temperature is influenced by the proximity of the Gulf Stream. As coastal water temperatures warm in the spring, loggerheads begin to migrate to inshore waters of the Southeast United States ( e.g. , Pamlico and Core S ounds) and also move up the U.S. Atlantic coast (Epperly et al. 1995a, 1995b, 1995c; Braun

- McNeill and Epperly 2004), occurring in Virginia foraging areas as early as April/May and on the most northern foraging grounds in the Gulf of Maine in June (Shoop a nd Kenney 1992). The trend is reversed in the fall as water temperatures cool. The large majority leave the Gulf of Maine by mid

- September but some turtles may remain in Mid

- Atlantic and Northeast areas until late fall. By December, loggerheads have mig rated from inshore and more northern coastal waters to waters offshore of North Carolina, particularly off of Cape Hatteras, and waters further south where the influence of the Gulf Stream provides temperatures favorable to sea turtles (Shoop and Kenney 19 92; Epperly et al. 1995b).

Recent studies have established that the loggerhead’s life history is more complex than previously believed. Rather than making discrete developmental shifts from oceanic to neritic environments, research is showing that both adults and (presumed) neritic stage juveniles continue to use the oceanic environment and will move back and forth between the two habitats (Witzell 2002;

Blumenthal et al. 2006; Hawkes et al. 2006; McClellan and Read 2007; Mansfield et al. 2009).
One of the studies tracked the movements of adult post

- nesting females and found that differences in habitat use were related to body size with larger adults staying in coastal waters and smaller adults traveling to oceanic waters (Hawkes et al. 2006). A tracki ng study of large juveniles found that the habitat preferences of this life stage were also diverse with some remaining in neritic waters and others moving off into oceanic waters (McClellan and Read 2007). However, unlike the
Hawkes et al. (2006) study, there was no significant difference in the body size of turtles that remained in neritic waters versus oceanic waters (McClellan and Read 2007).

Pelagic and benthic juveniles are omnivorous and forage on crabs, mollusks, jellyfish, and25

vegetation at or ne ar the surface (Dodd 1988; NMFS and USFWS 2008). Sub

- adult and adult loggerheads are primarily coastal dwelling and typically prey on benthic invertebrates such as mollusks and decapod crustaceans in hard bottom habitats (NMFS and USFWS 2008).

As presen ted below, Table 3 from the 2008 loggerhead recovery plan (Table 3 in this Opinion) highlights the key life history parameters for loggerheads nesting in the United States.26

Population Dynamics and Status By far, the majority of Atlantic nesting occu rs on beaches of the southeastern United States (NMFS and USFWS 2007a). For the past decade or so, the scientific literature has recognized five distinct nesting groups, or subpopulations, of loggerhead sea turtles in the Northwest Atlantic, divided

geogr aphically as follows: (1) a northern group of nesting females that nest from North Carolina to

northeast Florida at about 29  N latitude; (2) a south Florida group of nesting females that nest from

29  N latitude on the east coast to Sarasota on the west c oast; (3) a Florida Panhandle group of nesting females that nest around Eglin Air Force Base and the beaches near Panama City, Florida; (4) a Yucatán group of nesting females that nest on beaches of the eastern Yucatán Peninsula, Mexico; and (5) a Dry Tort ugas group that nests on beaches of the islands of the Dry Tortugas, near Key West, Florida and on Cal Sal Bank (TEWG 2009). Genetic analyses of mitochondrial DNA, which a sea turtle inherits from its mother, indicate that there are genetic differences be tween loggerheads that nest at and originate from the beaches used by each of the five identified nesting groups of females (TEWG 2009). However, analyses of microsatellite loci from nuclear DNA, which represents the genetic contribution from both parents , indicates little to no genetic differences between loggerheads originating from nesting beaches of the five Northwest Atlantic nesting groups (Pearce and Bowen 2001; Bowen 2003; Bowen et al. 2005; Shamblin 2007). These results suggest that female logger heads have site fidelity to nesting beaches within a particular area, while males provide an avenue of gene flow between nesting groups by mating with females that originate from different nesting groups (Bowen 2003; Bowen et al. 2005). The extent of such gene flow, however, is unclear (Shamblin 2007).

The lack of genetic structure makes it difficult to designate specific boundaries for the nesting subpopulations based on genetic differences alone. Therefore, the Loggerhead Recovery Team recently used a combination of geographic distribution of nesting densities, geographic separation, and geopolitical boundaries, in addition to genetic differences, to reassess the designation of these subpopulations to identify recovery units in the 2008 recovery plan.

In the 2008 recovery plan, the Loggerhead Recovery Team designated five recovery units for the Northwest Atlantic population of loggerhead sea turtles based on the aforementioned nesting groups and inclusive of a few other nesting areas not mentioned a bove. The first four of these recovery units represent nesting assemblages located in the Southeast United States. The fifth recovery unit is composed of all other nesting assemblages of loggerheads within the Greater Caribbean, outside
the United States , but which occur within U.S. waters during some portion of their lives. The five recovery units representing nesting assemblages are: (1) the Northern Recovery Unit (NRU: Florida/Georgia border through southern Virginia), (2) the Peninsular Florida Recov ery Unit (PFRU: Florida/Georgia border through Pinellas County, Florida), (3) the Dry Tortugas Recovery Unit (DTRU: islands located west of Key West, Florida), (4) the Northern Gulf of Mexico Recovery Unit (NGMRU: Franklin County, Florida through Texas), a nd (5) the Greater Caribbean Recovery Unit (GCRU: Mexico through French Guiana, Bahamas, Lesser Antilles, and Greater Antilles).

The Recovery Team evaluated the status and trends of the Northwest Atlantic loggerhead population for each of the five recov ery units, using nesting data available as of October 2008 (NMFS and USFWS 2008). The level and consistency of nesting coverage varies among recovery units, with coverage in Florida generally being the most consistent and thorough over time. Since27

1989, nest count surveys in Florida have occurred in the form of statewide surveys (a near complete census of entire Florida nesting) and index beach surveys (Witherington et al. 2009). Index beaches
were established to standardize data collection methods and m aintain a constant level of effort on key nesting beaches over time.

Note that NMFS and USFWS (2008), Witherington et al. (2009), and TEWG (2009) analyzed the status of the nesting assemblages within the NWA DPS using standardized data collected over

pe riods ranging from 10

- 23 years. These analyses used different analytical approaches, but found the same finding that there had been a significant, overall nesting decline within the NWA DPS. However, with the addition of nesting data from 2008

- 2010, the trend line changes showing a very slight negative trend, but the rate of decline is not statistically different from zero (76 FR 58868, September 22, 2011). The nesting data presented in the Recovery Plan (through 2008) is described below, with updated tr end information through 2010 for two recovery units.

From the beginning of standardized index surveys in 1989 until 1998, the PFRU, the largest nesting assemblage in the Northwest Atlantic by an order of magnitude, had a significant increase in the

number of nests. However, from 1998 through 2008, there was a 41% decrease in annual nest counts from index beaches, which represent an average of 70% of the statewide nesting activity (NMFS and USFWS 2008). From 1989

- 2008, the PFRU had an overall declining ne sting trend of 26% (95% CI:

- 42% to

- 5%; NMFS and USFWS 2008). With the addition of nesting data through 2010, the nesting trend for the PFRU does not show a nesting decline statistically different from zero (76 FR 58868, September 22, 2011). The NRU, th e second largest nesting assemblage of loggerheads in the United States, has been declining at a rate of 1.3% annually since 1983 (NMFS and USFWS 2008). The NRU dataset included 11 beaches with an uninterrupted time series of coverage of at least 20 years ; these beaches represent approximately 27% of NRU nesting (in 2008). Through 2008, there was strong statistical data to suggest the NRU has experienced a long

- term decline, but with the inclusion of nesting data through 2010, nesting for the NRU is showi ng possible signs of stabilizing (76 FR 58868, September 22, 2011). Evaluation of long

- term nesting trends for the NGMRU is difficult because of changed and expanded beach coverage. However, the NGMRU has shown a significant declining trend of 4.7% annua lly since index nesting beach surveys were initiated in 1997 (NMFS and USFWS 2008). No statistical trends in nesting abundance can be determined for the DTRU because of the lack of long

- term data. Similarly, statistically valid analyses of long

- term nest ing trends for the entire GCRU are not available because there are few long

- term standardized nesting surveys representative of the region. Additionally, changing survey effort at monitored beaches and scattered and low

- level nesting by loggerheads at man y locations currently precludes comprehensive analyses (NMFS and USFWS 2008).

Sea turtle census nesting surveys are important in that they provide information on the relative abundance of nesting each year, and the contribution of each nesting group to total nesting of the species. Nest counts can also be used to estimate the number of reproductively mature females nesting annually. The 2008 recovery plan compiled information on mean number of loggerhead nests and the approximated counts of nesting fem ales per year for four of the five identified recovery units ( i.e ., nesting groups). They are: (1) for the NRU, a mean of 5,215 loggerhead nests per year (from 1989

- 2008) with approximately 1,272 females nesting per year; (2) for the PFRU, a mean of 64,51 3 nests per year (from 1989

- 2007) with approximately 15,735 females nesting per28

year; (3) for the DTRU, a mean of 246 nests per year (from 1995

- 2004, excluding 2002) with approximately 60 females nesting per year; and (4) for the NGMRU, a mean of 906 nests per year (from 1995

- 2007) with approximately 221 females nesting per year. For the GCRU, the only estimate available for the number of loggerhead nests per year is from Quintana Roo, Yucatán, Mexico, where a range of 903

- 2,331 nests per year was estimate d from 1987

- 2001 (NMFS and USFWS 2007a). There are no annual nest estimates available for the Yucatán since 2001 or for any other regions in the GCRU, nor are there any estimates of the number of nesting females per year for any nesting assemblage in this recovery unit. Note that the above values for average nesting females per year were based upon 4.1 nests per female per Murphy and Hopkins (1984).

Genetic studies of juvenile and a few adult loggerhead sea turtles collected from Northwest Atlantic

for aging areas (beach strandings, a power plant in Florida, and North Carolina fisheries) show that the loggerheads that occupy East Coast U.S. waters originate from these Northwest Atlantic nesting groups; primarily from the nearby nesting beaches of souther n Florida, as well as the northern Florida to North Carolina beaches, and finally from the beaches of the Yucatán Peninsula, Mexico (Rankin

- Baransky et al. 2001; Witzell et al. 2002; Bass et al. 2004; Bowen et al. 2004). The

contribution of these three ne sting assemblages varies somewhat among the foraging habitats and age classes surveyed along the east coast. The distribution is not random and bears a significant relationship to the proximity and size of adjacent nesting colonies (Bowen et al. 2004). Ba ss et al. (2004) attribute the variety in the proportions of sea turtles from loggerhead turtle nesting assemblages documented in different east coast foraging habitats to a complex interplay of currents and the relative size and proximity of nesting beach es.

Unlike nesting surveys, in

- water studies of sea turtles typically sample both sexes and multiple age
classes. In

- water studies have been conducted in some areas of the Northwest Atlantic and provide data by which to assess the relative abundance of l oggerhead sea turtles and changes in abundance over time (Maier et al. 2004; Morreale et al. 2005; Mansfield 2006; Ehrhart et al. 2007; Epperly et al. 2007). The TEWG (2009) used raw data from six in

- water study sites to conduct trend analyse s. They identified an increasing trend in the abundance of loggerheads from three of the four sites located in the Southeast United States, one site showed no discernible trend, and the two sites located in the northeast United States showed a decreasing trend in abundance of loggerheads. The 2008 loggerhead recovery plan also includes a full discussion of in

- water population studies for which trend data have been reported, and a brief summary will be provided here.

Maier et al. (2004) used fishery

- ind ependent trawl data to establish a regional index of loggerhead abundance for the southeast coast of the United States (Winyah Bay, South Carolina to St. Augustine, Florida) during the period 2000

- 2003. A comparison of loggerhead catch data from this

stud y with historical values suggested that in

- water populations of loggerhead sea turtles along the southeast U.S. coast appear to be larger, possibly an order of magnitude higher than they were 25 years ago, but the authors caution a direct comparison betwee n the two studies given differences in sampling methodology (Maier et al. 2004). A comparison of catch rates for sea turtles in pound net gear fished in the Pamlico

- Albemarle Estuarine Complex of North Carolina between the years
1995

- 1997 and 2001

- 2003 fo und a significant increase in catch rates for loggerhead sea turtles for the latter period (Epperly et al. 2007). A long

- term, on

- going study of loggerhead abundance in the Indian River Lagoon System of Florida found a significant increase in the relative abundance of loggerheads over the last 4 years of the study (Ehrhart et al. 2007). However, there was no29

discernible trend in loggerhead abundance during the 24

- year time period of the study (1982

- 2006) (Ehrhart et al. 2007). At St. Lucie Power Plant, d ata collected from 1977

- 2004 show an increasing trend of loggerheads at the power plant intake structures (FPL and Quantum Resources 2005).

In contrast to these studies, Morreale et al. (2005) observed a decline in the percentage and relative

numbers of loggerhead sea turtles incidentally captured in pound net gear fished around Long Island, New York during the period 2002

- 2004 in comparison to the period 1987

- 1992, with only two loggerheads (of a total 54 turtles) observed captured in pound net gear dur ing the period 2002

- 2004. This is in contrast to the previous decade’s study where numbers of individual loggerheads ranged from 11 to 28 per year (Morreale et al. 2005). No additional loggerheads were reported captured in pound net gear in New York thro ugh 2007, although two were found cold

- stunned on Long Island bay beaches in the fall of 2007 (Memo to the File, L. Lankshear, December 2007). Potential explanations for this decline include major shifts in loggerhead foraging areas and/or

increased morta lity in pelagic or early benthic stage/age classes (Morreale et al. 2005). Using aerial surveys, Mansfield (2006) also found a decline in the densities of loggerhead sea turtles in Chesapeake Bay over the period 2001

- 2004 compared to aerial survey data co llected in the 1980s. Significantly fewer loggerheads ( p <0.05) were observed in both the spring (May

- June) and the summer (July

- August) of 2001

- 2004 compared to those observed during aerial surveys in the 1980s (Mansfield 2006). A comparison of median de nsities from the 1980s to the 2000s suggested that there had been a 63.2% reduction in densities during the spring residency period and a 74.9% reduction in densities during the summer residency period (Mansfield 2006). The decline in observed loggerhead populations in Chesapeake Bay may be related to a significant decline in prey, namely horseshoe crabs and blue crabs, with loggerheads redistributing outside of Bay waters (NMFS and USFWS 2008).

As with other turtle species, population estimates for log gerhead sea turtles are difficult to determine, largely given their life history characteristics. However, a recent loggerhead assessment using a demographic matrix model estimated that the loggerhead adult female population in the
western North Atlantic ranges from 16,847 to 89,649, with a median size of 30,050 (NMFS SEFSC 2009). The model results for population trajectory suggest that the population is most likely declining, but this result was very sensitive to the choice of the position of the paramet ers within their range and hypothesized distributions. The pelagic stage survival parameter had the largest effect on the model results. As a result of the large uncertainty in our knowledge of loggerhead life history, at this point predicting the future populations or population trajectories of loggerhead sea turtles with precision is very uncertain. It should also be noted that additional analyses are underway which will incorporate any newly available information.

As part of the Atlantic Marine Ass essment Program for Protected Species (AMAPPS), line transect aerial abundance surveys and turtle telemetry studies were conducted along the Atlantic coast in the
summer of 2010. AMAPPS is a multi

- agency initiative to assess marine mammal, sea turtle, and seabird abundance and distribution in the Atlantic. Aerial surveys were conducted from Cape Canaveral, Florida to the Gulf of St. Lawrence, Canada. Satellite tags on juvenile loggerheads were deployed in two locations

– off the coasts of northern Flori da to South Carolina (n=30) and off the New Jersey and Delaware coasts (n=14). As presented in NMFS NEFSC (2011), the 2010 survey found a preliminary total surface abundance estimate within the entire study area of about 60,000 loggerheads (CV=0.13) or 85 ,000 if a portion of unidentified hard

- shelled sea turtles were30

included (CV=0.10). Surfacing times were generated from the satellite tag data collected during the aerial survey period, resulting in a 7% (5%

- 11% inter

- quartile range) median surface time i n the South Atlantic area and a 67% (57%

- 77% inter

- quartile range) median surface time to the north. The calculated preliminary regional abundance estimate is about 588,000 loggerheads along the U.S. Atlantic coast, with an inter

- quartile range of 382,000

- 817,000 (NMFS NEFSC 2011). The estimate increases to approximately 801,000 (inter

- quartile range of 521,000

- 1,111,000) when based on known loggerheads and a portion of unidentified turtle sightings. The density of loggerheads was generally lower in the north than the south; based on number of turtle groups detected, 64% were seen south of Cape Hatteras, North Carolina, 30% in the southern Mid

- Atlantic Bight, and 6%

in the northern Mid

- Atlantic Bight. Although they have been seen farther north in previou s studies ( e.g. , Shoop and Kenney 1992), no loggerheads were observed during the aerial surveys conducted in the summer of 2010 in the more northern zone encompassing Georges Bank, Cape Cod Bay, and
the Gulf of Maine. These estimates of loggerhead abundan ce over the U.S. Atlantic continental shelf are considered very preliminary. A more thorough analysis will be completed pending the results of further studies related to improving estimates of regional and seasonal variation in loggerhead surface time (by increasing the sample size and geographical area of tagging) and other information needed to improve the biases inherent in aerial surveys of sea turtles ( e.g. , research on depth of detection and species misidentification rate). This survey effort repres ents the most comprehensive assessment of sea turtle abundance and distribution in many years. Additional aerial surveys and research to improve the abundance estimates are anticipated in 2011

- 2014, depending
on available funds.

Threats The diversity of a sea turtle’s life history leaves them susceptible to many natural and human impacts, including impacts while they are on land, in the neritic environment, and in the oceanic
environment. The 5

- year status review and 2008 recovery plan provide a summary of natural as well as anthropogenic threats to loggerhead sea turtles (NMFS and USFWS 2007a, 2008). Amongst those of natural origin, hurricanes are known to be destructive to sea turtle nests. Sand accretion, rainfall, and wave action that result from t hese storms can appreciably reduce hatchling success. Other sources of natural mortality include cold

- stunning, biotoxin exposure, and native species predation.

Anthropogenic factors that impact hatchlings and adult females on land, or the success of n esting and hatching include: beach erosion, beach armoring, and nourishment; artificial lighting; beach cleaning; beach pollution; increased human presence; recreational beach equipment; vehicular and pedestrian traffic; coastal development/construction; e xotic dune and beach vegetation; removal of native vegetation; and poaching. An increased human presence at some nesting beaches or close to nesting beaches has led to secondary threats such as the introduction of exotic fire ants, feral hogs, dogs, and a n increased presence of native species ( e.g. , raccoons, armadillos, and opossums), which raid nests and feed on turtle eggs (NMFS and USFWS 2007a, 2008). Although sea turtle nesting beaches are protected along large expanses of the Northwest Atlantic coas t (in areas like Merritt Island, Archie Carr, and Hobe Sound National Wildlife Refuges), other areas along these coasts have limited or no protection. Sea turtle nesting and hatching success on unprotected high density East Florida nesting beaches from In dian River to Broward County are affected by all of the above
threats.31

Loggerheads are affected by a completely different set of anthropogenic threats in the marine environment. These include oil and gas exploration, coastal development, and transporta tion; marine pollution; underwater explosions; hopper dredging; offshore artificial lighting; power plant entrainment and/or impingement; entanglement in debris; ingestion of marine debris; marina and dock construction and operation; boat collisions; poach ing; and fishery interactions.

A 1990 National Research Council (NRC) report concluded that for juveniles, subadults, and breeding adults in coastal waters, the most important source of human caused mortality in U.S. Atlantic waters was fishery interact ions. The sizes and reproductive values of sea turtles taken by fisheries vary significantly, depending on the location and season of the fishery, and size

- selectivity resulting from gear characteristics. Therefore, it is possible for fisheries that inte ract with fewer, more reproductively valuable turtles to have a greater detrimental effect on the population than one that takes greater numbers of less reproductively valuable turtles (Wallace et al. 2008). The Loggerhead Biological Review Team determine d that the greatest threats to the NWA DPS of loggerheads result from cumulative fishery bycatch in neritic and oceanic habitats (Conant et al. 2009). Attaining a more thorough understanding of the characteristics, as well as the quantity of sea turtle by catch across all fisheries is of great importance.

Finkbeiner et al. (2011) compiled cumulative sea turtle bycatch information in U.S. fisheries from 1990 through 2007, before and after implementation of bycatch mitigation measures. Information
was obtai ned from peer reviewed publications and NMFS documents (e.g., Biological Opinions and bycatch reports). In the Atlantic, a mean estimate of 137,700 bycatch interactions, of which 4,500 were mortalities, occurred annually (since implementation of bycatch m itigation measures). Kemp’s ridleys interacted with fisheries most frequently, with the highest level of mean annual mortality (2,700), followed by loggerheads (1,400), greens (300), and leatherbacks (40). The Southeast/Gulf of Mexico shrimp trawl fisher y was responsible for the vast majority of U.S. interactions (up to 98%) and mortalities (more than 80%). While this provides an initial cumulative bycatch assessment, there are a number of caveats that should be considered when interpreting this

informat ion, such as sampling inconsistencies and limitations.

Of the many fisheries known to adversely affect loggerheads, the U.S. South Atlantic and Gulf of Mexico shrimp fisheries were considered to pose the greatest threat of mortality to neritic juvenile

an d adult age classes of loggerheads (NRC 1990, Finkbeiner et al. 2011). Significant changes to the South Atlantic and Gulf of Mexico shrimp fisheries have occurred since 1990, and the effects of these shrimp fisheries on ESA

- listed species, including logge rhead sea turtles, have been assessed several times through section 7 consultation. There is also a lengthy regulatory history with regard to the use of Turtle Excluder Devices (TEDs) in the U.S. South Atlantic and Gulf of Mexico shrimp fisheries (Epperly and Teas 2002; NMFS 2002a; Lewison et al. 2003). The current section 7 consultation on the U.S. South Atlantic and Gulf of Mexico shrimp fisheries was completed in 2002 and estimated the total annual level of take for loggerhead sea turtles to be 163,160 interactions (the total number of turtles that enter a shrimp trawl, which may then escape through the TED or fail to escape and be captured) with 3,948 of those takes being lethal (NMFS 2002a).

In addition to improvements in TED designs and TED enforc ement, interactions between loggerheads and the shrimp fishery have also been declining because of reductions in fishing effort unrelated to fisheries management actions. The 2002 Opinion take estimates are based in part on32

fishery effort levels. In rece nt years, low shrimp prices, rising fuel costs, competition with imported products, and the impacts of recent hurricanes in the Gulf of Mexico have all impacted the shrimp fleets; in some cases reducing fishing effort by as much as 50% for offshore waters of the Gulf of Mexico (GMFMC 2007). As a result, loggerhead interactions and mortalities in the Gulf of Mexico have been substantially less than projected in the 2002 Opinion. Currently, the estimated annual number of interactions between loggerheads and shrimp trawls in the Gulf of Mexico shrimp fishery is 23,336, with 647 (2.8%) of those interactions resulting in mortality ( Memo from Dr. B. Ponwith, Southeast Fisheries Science Center to Dr. R. Crabtree, Southeast Region, PRD, December 2008 ).
Section 7 consultation on the Shrimp FMP has recently been reinitiated and a new Biological Opinion is forthcoming.

Loggerhead sea turtles are also known to interact with non

- shrimp trawl, gillnet, longline, dredge, pound net, pot/trap, and hook and line fisheries. The NRC (1990) report stated that other U.S. Atlantic fisheries collectively accounted for 500 to 5,000 loggerhead deaths each year, but recognized that there was considerable uncertainty in the estimate. The reduction of sea turtle captures in fishing operations is identified in recovery plans and 5

- year status reviews as a priority for the recovery of all sea turtle species. In the threats analysis of the loggerhead recovery plan, trawl bycatch is identified as the greatest source of mortality. While loggerhead bycatch in U.S.

Mid

- Atlantic bottom otter trawl gear was previously estimated for the period 1996

- 2004 (Murray 2006, 2008), a recent bycatch analysis estimated the number of loggerhead sea turtle interactions
with U.S. Mid

- Atlantic bottom trawl gear from 2005

- 2008 (Warden 2011a). Northeast Fisheries Observer Program data from 1994

- 2008 were used to develop a model of interaction rates and those predicted rates were applied to 2005

- 2008 commercial fishing data to estimate the number of

interacti ons for the trawl fleet. The number of predicted average annual loggerhead interactions for

2005

- 2008 was 292 (CV=0.13, 95% CI=221

- 369), with an additional 61 loggerheads (CV=0.17,
95% CI=41

- 83) interacting with trawls but being released through a TED. O f the 292 average annual observable loggerhead interactions, approximately 44 of those were adult equivalents. Warden (2011b) found that latitude, depth and SST were associated with the interaction rate, with the rates being highest south of 37°N latitude in waters < 50 m deep and SST > 15°C. This estimate is a decrease from the average annual loggerhead bycatch in bottom otter trawls during 1996

- 2004, estimated to be 616 sea turtles (CV=0.23, 95% CI over the 9

- year period: 367

- 890) (Murray 2006, 2008).

There have been several published estimates of the number of loggerheads taken annually as a result of the dredge fishery for Atlantic sea scallops, ranging from a low of zero in 2005 (Murray 2007) to a high of 749 in 2003 (Murray 2004). Murray (2011) re cently re

- evaluated loggerhead sea turtle interactions in scallop dredge gear from 2001

- 2008. In that paper, the average number of annual
observable interactions of hard

- shelled sea turtles in the Mid

- Atlantic scallop dredge fishery prior to the implement ation of chain mats (January 1, 2001 through September 25, 2006) was estimated to be 288 turtles (CV = 0.14, 95% CI: 209

- 363) [equivalent to 49 adults], 218 of which were loggerheads [equivalent to 37 adults]. After the implementation of chain mats, the a verage annual
number of observable interactions was estimated to be 20 hard

- shelled sea turtles (CV = 0.48, 95%

CI: 3

- 42), 19 of which were loggerheads. If the rate of observable interactions from dredges without chain mats had been applied to trips with chain mats, the estimated number of observable

and inferred interactions of hard

- shelled sea turtles after chain mats were implemented would have been 125 turtles per year (CV = 0.15, 95% CI: 88

- 163) [equivalent to 22 adults], 95 of which were33

loggerheads [equivalent to 16 adults]. Interaction rates of hard

- shelled turtles were correlated with sea surface temperature, depth, and use of a chain mat. Results from this recent analysis suggest that chain mats and fishing effort reductions have contributed to t he decline in estimated loggerhead sea turtle interactions with scallop dredge gear after 2006 (Murray 2011).

An estimate of the number of loggerheads taken annually in U.S. Mid

- Atlantic gillnet fisheries has also recently been published (Murray 2009a, b). From 1995

- 2006, the annual bycatch of loggerheads in U.S. Mid

- Atlantic gillnet gear was estimated to average 350 turtles (CV=0.20, 95%
CI over the 12

- year period: 234 to 504). Bycatch rates were correlated with latitude, sea surface temperature, and mesh size. The highest predicted bycatch rates occurred in warm waters of the

southern Mid

- Atlantic in large

- mesh gillnets (Murray 2009a).

The U.S. tuna and swordfish longline fisheries that are managed under the Highly Migratory Species (HMS) FMP are estimated to capture 1,905 loggerheads (no more than 339 mortalities) for
each 3

- year period starting in 2007 (NMFS 2004a). NMFS has mandated gear changes for the HMS fishery to reduce sea turtle bycatch and the likelihood of death from those incidental t akes that would still occur (Garrison and Stokes 2010). In 2010, there were 40 observed interactions between loggerhead sea turtles and longline gear used in the HMS fishery (Garrison and Stokes 2011a, 2011b). All of the loggerheads were released alive, with the vast majority released with all gear removed. While 2010 total estimates are not yet available, in 2009, 242.9 (95% CI: 167.9

- 351.2) loggerhead sea turtles are estimated to have been taken in the longline fisheries managed under the
HMS FMP based on the observed takes (Garrison and Stokes 2010). The 2009 estimate is considerably lower than those in 2006 and 2007 and is consistent with historical averages since 2001 (Garrison and Stokes 2010). This fishery represents just one of several longline fisheries operating in the Atlantic Ocean. Lewison et al. (2004) estimated that 150,000

- 200,000 loggerheads were taken in all Atlantic longline fisheries in 2000 (including the U.S. Atlantic tuna and swordfish longline fisheries as well as others).

Doc umented takes also occur in other fishery gear types and by non

- fishery mortality sources ( e.g. , hopper dredges, power plants, vessel collisions), but quantitative estimates are unavailable. Past and future impacts of global climate change are considered in Section 6.0 below.

Summary of Status for Loggerhead Sea Turtles Loggerheads are a long

- lived species and reach sexual maturity relatively late at around 32

- 35 years in the Northwest Atlantic (NMFS and USFWS 2008). The species continues to be affecte d by many factors occurring on nesting beaches and in the water. These include poaching, habitat loss, and nesting predation that affects eggs, hatchlings, and nesting females on land, as well as fishery interactions, vessel interactions, marine pollution , and non

- fishery ( e.g ., dredging) operations affecting all sexes and age classes in the water (NRC 1990; NMFS and USFWS 2007a, 2008). As a result, loggerheads still face many of the original threats that were the cause of their listing under
the ESA.

As mentioned previously, a final revised recovery plan for loggerhead sea turtles in the Northwest Atlantic was recently published by NMFS and FWS in December 2008. The revised recovery plan is significant in that it identifies five unique recovery units, which comprise the population of loggerheads in the Northwest Atlantic, and describes specific recovery criteria for each recovery34

unit . The recovery plan noted a decline in annual nest counts for three of the five recovery units for loggerheads in the N orthwest Atlantic, including the PFRU, which is the largest (in terms of number of nests laid) in the Atlantic Ocean. The nesting trends for the other two recovery units could not be determined due to an absence of long term data.

NMFS convened a new L oggerhead Turtle Expert Working Group (TEWG) to review all available information on Atlantic loggerheads in order to evaluate the status of this species in the Atlantic. A final report from the Loggerhead TEWG was published in July 2009. In this report, the TEWG indicated that it could not determine whether the decreasing annual numbers of nests among the Northwest Atlantic loggerhead subpopulations were due to stochastic processes resulting in fewer nests, a decreasing average reproductive output of adul t females, decreasing numbers of adult females, or a combination of these factors. Many factors are responsible for past or present loggerhead mortality that could impact current nest numbers; however, no single mortality factor stands out as a likely pri mary factor. It is likely that several factors compound to create the current decline, including incidental capture (in fisheries, power plant intakes, and dredging operations), lower adult female survival rates, increases in the proportion of first

- time nesters, continued directed harvest, and increases in mortality due to disease. Regardless, the TEWG stated that “it is clear that the current levels of hatchling output will result in depressed recruitment to subsequent life stages over the coming decade s” (TEWG 2009). However, the report does not provide information on the rate or amount of expected decrease in recruitment but goes on to state that the ability to assess the current status of loggerhead subpopulations is limited due to a lack of

fundamen tal life history information and specific census and mortality data.

While several documents reported the decline in nesting numbers in the NWA DPS (NMFS and USFWS 2008, TEWG 2009), when nest counts through 2010 are analyzed, the nesting trends from
198 9

- 2010 are not significantly different than zero for all recovery units within the NWA DPS for which there are enough data to analyze (76 FR 58868, September 22, 2011). The SEFSC (2009) estimated the number of adult females in the NWA DPS at 30,000, and i f a 1:1 adult sex ratio is assumed, the result is 60,000 adults in this DPS. Based on the reviews of nesting data, as well as information on population abundance and trends, NMFS and USFWS determined in the September 2011 listing rule that the NWA DPS sho uld be listed as threatened. They found that an endangered status for the NWA DPS was not warranted given the large size of the nesting population, the overall nesting population remains widespread, the trend for the nesting population appears to be

stabi lizing, and substantial conservation efforts are underway to address threats.

4. 3 Status of Kemp’s Ridley Sea Turtles

Distribution and Life History The Kemp’s ridley is one of the least abundant of the world’s sea turtle species. In contrast to loggerhead, leatherback, and green sea turtles, which are found in multiple oceans of the world, Kemp’s ridleys typically occur only in the Gulf of Mexico and the northwestern Atlantic Ocean (NMFS et al. 2011).

Kemp’s ridleys mature at 10

- 17 years (Caillouet et al. 1995; Schmid and Witzell 1997; Snover et al. 2007; NMFS and USFWS 2007c). Nesting occurs from April through July each year with hatchlings emerging after 45

- 58 days (NMFS et al. 2011). Females lay an average of 2.5 clutches35

within a season (TEWG 1998, 2000) and the mean remigration interval for adult females is 2 years (Marquez et al. 1982 ; TEWG 1998, 2000).

Once they leave the nesting beach, hatchlings presumably enter the Gulf of Mexico where they feed
on available S argas sum and associated infauna or other epipelagic species (NMFS et al. 2011). The presence of juvenile turtles along both the U.S. Atlantic and Gulf of Mexico coasts, where they are recruited to the coastal benthic environment, indicates that post

- hatchlings are distributed in both the Gulf of Mexico and Atlantic Ocean (TEWG 2000).

The location and size classes of dead turtles recovered by the STSSN suggests that benthic immature developmental areas occur along the U.S. coast and that these areas may chang e given resource quality and quantity (TEWG 2000). Developmental habitats are defined by several characteristics, including coastal areas sheltered from high winds and waves such as embayments and estuaries, and nearshore temperate waters shallower than 5 0 m (NMFS and USFWS 2007c). The suitability of these habitats depends on resource availability, with optimal environments providing rich sources of crabs and other invertebrates. Kemp’s ridleys consume a variety of crab species, including Callinectes

, Ov alipes

, Libinia , and Cancer species. Mollusks, shrimp, and fish are consumed less frequently (Bjorndal 1997). A wide variety of substrates have been documented to provide good foraging habitat, including seagrass beds, oyster reefs, sandy and mud bottoms , and rock outcroppings (NMFS and USFWS 2007c).

Foraging areas documented along the U.S. Atlantic coast include Charleston Harbor, Pamlico Sound (Epperly et al. 1995c), Chesapeake Bay (Musick and Limpus 1997), Delaware Bay (Stetzar 2002), and Long Islan d Sound (Morreale and Standora 1993; Morreale et al. 2005). For instance, in the Chesapeake Bay, Kemp’s ridleys frequently forage in submerged aquatic grass beds for crabs (Musick and Limpus 1997). Upon leaving Chesapeake Bay in autumn, juvenile Kemp’s r idleys migrate down the coast, passing Cape Hatteras in December and January (Musick and Limpus 1997). These larger juveniles are joined by juveniles of the same size from North Carolina sounds and smaller juveniles from New York and New England to form o ne of the densest concentrations of Kemp’s ridleys outside of the Gulf of Mexico (Epperly et al. 1995a, 1995b; Musick and Limpus 1997).

Adult Kemp’s ridleys are found in the coastal regions of the Gulf of Mexico and southeastern United States, but are t ypically rare in the northeastern U.S. waters of the Atlantic (TEWG 2000). Adults are primarily found in nearshore waters of 37 m or less that are rich in crabs and have a sandy or muddy bottom (NMFS and USFWS 2007c).

Population Dynamics and Status

The majority of Kemp’s ridleys nest along a single stretch of beach near Rancho Nuevo, Tamaulipas, Mexico (Carr 1963; NMFS and USFWS 2007c; NMFS et al. 2011). There is a limited amount of scattered nesting to the north and south of the primary nesting beach (NMFS and USFWS 2007c). Nesting often occurs in synchronized emergences termed arribadas . The number of recorded nests reached an estimated low of 702 nests in 1985, corresponding to fewer than 300 adult females nesting in that season (TEWG 2000; NMFS an d USFWS 2007c; NMFS et al. 2011). Conservation efforts by Mexican and U.S. agencies have aided this species by eliminating egg harvest, protecting eggs and hatchlings, and reducing at

- sea mortality through fishing regulations36

(TEWG 2000). Since the mid

- 1 980s, the number of nests observed at Rancho Nuevo and nearby

beaches has increased 14

- 16% per year (Heppell et al. 2005), allowing cautious optimism that the population is on its way to recovery. An estimated 5,500 females nested in the State of Tamaulip as over a 3

- day period in May 2007 and over 4,000 of those nested at Rancho Nuevo (NMFS and USFWS 2007c). In 2008, 17,882 nests were documented on Mexican nesting beaches (NMFS 2011). There is limited nesting in the United States, most of which is locate d in South Texas. While six nests were documented in 1996, a record 195 nests were found in 2008 (NMFS 2011).

Threats Kemp’s ridleys face many of the same natural threats as loggerheads, including destruction of nesting habitat from storm events, preda tors, and oceanographic

- related events such as cold

stunning. Although cold

- stunning can occur throughout the range of the species, it may be a greater risk for sea turtles that utilize the more northern habitats of Cape Cod Bay and Long Island Sound.

In the last five years (2006

- 2010), the number of cold

- stunned turtles on Cape Cod beaches averaged 115 Kemp’s ridleys, 7 loggerheads, and 7 greens (NMFS unpublished data). The numbers ranged from a low in 2007 of 27 Kemp's ridleys, 5 loggerheads, and 5 gre ens to a high in 2010 of 213 Kemp's ridleys, 4 loggerheads, and 14 greens. Annual cold stun events vary in magnitude; the extent of episodic major cold stun events may be associated with numbers of turtles utilizing Northeast U.S. waters in a given year, oceanographic conditions, and/or the occurrence of storm events in the late fall. Although many cold

- stunned turtles can survive if they are found early enough, these events represent a significant source of natural mortality for Kemp’s ridleys.

Like ot her sea turtle species, the severe decline in the Kemp’s ridley population appears to have been heavily influenced by a combination of exploitation of eggs and impacts from fishery interactions. From the 1940s through the early 1960s, nests from Ranch Nue vo were heavily exploited, but beach protection in 1967 helped to curtail this activity (NMFS et al. 2011). Following World War II, there was a substantial increase in the number of trawl vessels, particularly shrimp trawlers, in the Gulf of Mexico where adult Kemp’s ridley sea turtles occur. Information from fisheries observers helped to demonstrate the high number of turtles taken in these shrimp trawls (USFWS and NMFS 1992). Subsequently, NMFS has worked with the industry to

reduce sea turtle takes in shrimp trawls and other trawl fisheries, including the development and use of turtle excluder devices (TEDs). As described above, there is lengthy regulatory history with regard to the use of TEDs in the U.S. South Atlantic and Gulf of Mexico shrimp fish eries (NMFS 2002a; Epperly 2003; Lewison et al. 2003). The 2002 Biological Opinion on shrimp trawling in the southeastern United States concluded that 155,503 Kemp’s ridley sea turtles would be taken annually in the fishery with 4,208 of the takes resulti ng in mortality (NMFS 2002a).

Although modifications to shrimp trawls have helped to reduce mortality of Kemp’s ridleys, a recent assessment found that the Southeast/Gulf of Mexico shrimp trawl fishery remained responsible for the vast majority of U.S. fishery interactions (up to 98%) and mortalities (more than 80%). Finkbeiner et al. (2011) compiled cumulative sea turtle bycatch information in U.S. fisheries from 1990 through 2007, before and after implementation of bycatch mitigation measures.

Inform ation was obtained from peer reviewed publications and NMFS documents (e.g., Biological Opinions and bycatch reports). In the Atlantic, a mean estimate of 137,700 bycatch interactions, of which 4,500 were mortalities, occurred annually (since implementati on of bycatch mitigation measures). Kemp’s ridleys interacted with fisheries most frequently, with the highest level of mean37

annual mortality (2,700), followed by loggerheads (1,400), greens (300), and leatherbacks (40). While this provides an initial cu mulative bycatch assessment, there are a number of caveats that should be considered when interpreting this information, such as sampling inconsistencies and
limitations.

This species is also affected by other sources of anthropogenic impact (fishery and non

- fishery related), similar to those discussed above. Three Kemp’s ridley captures in Mid

- Atlantic trawl fisheries were documented by NMFS observers between 1994 and 2008 (Warden and Bisack 2010), and eight Kemp’s ridleys were documented by NMFS observers in mid

- Atlantic sink gillnet fisheries between 1995 and 2006 (Murray 2009a). Additionally, in the spring of 2000, a total of five Kemp’s ridley carcasses were recovered from the same North Carolina beaches where 275 loggerhea d carcasses were found. The cause of death for most of the turtles recovered was unknown, but the mass mortality event was suspected by NMFS to have been from a large

- mesh gillnet fishery for monkfish and dogfish operating offshore in the preceding weeks (67 FR 71895

, December 3, 2002 ). The five Kemp’s ridley carcasses that were found are likely to have been only a minimum count of the number of Kemp’s ridleys that were killed or seriously injured as a result of the fishery interaction, since it is unlike ly that all of the carcasses washed ashore. The NMFS Northeast Fisheries Science Center also documented 14 Kemp’s ridleys entangled in or impinged on Virginia pound net leaders from 2002

- 2005. Note that bycatch estimates for Kemp’s ridleys in

various fis hing gear types ( e.g. , trawl, gillnet, dredge) are not available at this time, largely due to the low number of observed interactions precluding a robust estimate. Kemp’s ridley interactions in

non

- fisheries have also been observed; for example, the Oyste r Creek Nuclear Generating Station in Barnegat Bay, New Jersey, recorded a total of 27 Kemp’s ridleys (15 of which were found alive) impinged or captured on their intake screens from 1992

- 2006 (NMFS 2006).

Summary of Status for Kemp’s Ridley Sea Turtles The majority of Kemp’s ridleys nest along a single stretch of beach near Rancho Nuevo, Tamaulipas, Mexico (Carr 1963; NMFS and USFWS 2007c; NMFS et al. 2011). The number of nesting females in the Kemp’s ridley population declined dramatically from the la te 1940s through

the mid

- 1980s, with an estimated 40,000 nesting females in a single arribada in 1947 and fewer than 300 nesting females in the entire 1985 nesting season (TEWG 2000; NMFS et al. 2011). However, the total annual number of nests at Rancho N uevo gradually began to increase in the 1990s (NMFS and USFWS 2007c). Based on the number of nests laid in 2006 and the remigration interval for Kemp’s ridley sea turtles (1.8

- 2 years), there were an estimated 7,000

- 8,000 adult female Kemp’s ridley sea tu rtles in 2006 (NMFS and USFWS 2007c). The number of adult males in the population is unknown, but sex ratios of hatchlings and immature Kemp’s ridleys suggest that the population is female

- biased, suggesting that the number of adult males is less than the number of adult females (NMFS and USFWS 2007c). While there is cautious optimism for recovery, events such as the Deepwater Horizon oil release, and stranding events associated increased
skimmer trawl use and poor TED compliance in the nort hern Gulf of Mexico may dampen recent population growth.

As with the other sea turtle species, fishery mortality accounts for a large proportion of annual

human

- caused mortality outside the nesting beaches, while other activities like dredging, pollution, and habitat destruction account for an unknown level of other mortality. Based on their 5

- year status review of the species, NMFS and USFWS (2007c) determined that Kemp’s ridley sea turtles38

should not be reclassified as threatened under the ESA. A revis ed bi

- national recovery plan was published for public comment in 2010, and in September 2011, NMFS, USFWS, and the Services and the Secretary of Environment and Natural Resources, Mexico (SEMARNAT) released the second revision to the Kemp’s ridley recovery plan.

4. 4 Status of Green Sea Turtles Green sea turtles are distributed circumglobally, and can be found in the Pacific, Indian, and Atlantic Oceans as well as the Mediterranean Sea (NMFS and USFWS 1991, 2007d; Seminoff 2004). In 1978, the Atlantic popu lation of the green sea turtle was listed as threatened under the ESA, except for the breeding populations in Florida and on the Pacific coast of Mexico, which were listed as endangered. As it is difficult to differentiate between breeding populations awa y from the nesting beaches, all green sea turtles in the water are considered endangered.

Pacific Ocean Green sea turtles occur in the western, central, and eastern Pacific. Foraging areas are also found throughout the Pacific and along the southwester n U.S. coast (NMFS and USFWS 1998b). In the western Pacific, major nesting rookeries at four sites including Heron Island (Australia), Raine Island (Australia), Guam, and Japan were evaluated and determined to be increasing in abundance, with the exceptio n of Guam which appears stable (NMFS and USFWS 2007d). In the central Pacific, nesting occurs on French Frigate Shoals, Hawaii, which has also been reported as increasing with a mean of 400 nesting females annually from 2002

- 2006 (NMFS and USFWS 2007d). The main nesting sites for the green sea turtle in the eastern Pacific are located in Michoacan, Mexico and in the Galapagos Islands, Ecuador (NMFS and USFWS 2007d). The number of nesting females per year exceeds 1,000 females at each site (NMFS and USFWS 2007d). However, historically, greater than 20,000 females per year are believed to have nested in Michoacan alone (Cliffton et al. 1982; NMFS and USFWS 2007d). The Pacific Mexico green turtle nesting population (also called the black turtle) is conside red endangered.

Historically, green sea turtles were used in many areas of the Pacific for food. They were also commercially exploited, which, coupled with habitat degradation, led to their decline in the Pacific (NMFS and USFWS 1998b). Green sea turt les in the Pacific continue to be affected by poaching, habitat loss or degradation, fishing gear interactions, and fibropapillomatosis, which is a viral

disease that causes tumors in affected turtles (NMFS and USFWS 1998b; NMFS 2004b).

Indian Ocean

T here are numerous nesting sites for green sea turtles in the Indian Ocean. One of the largest nesting sites for green sea turtles worldwide occurs on the beaches of Oman where an estimated 20,000 green sea turtles nest annually (Hirth 1997; Ferreira et al

. 2003). Based on a review of the 32 Index Sites used to monitor green sea turtle nesting worldwide, Seminoff (2004) concluded that declines in green sea turtle nesting were evident for many of the Indian Ocean Index Sites. While
several of these had not demonstrated further declines in the more recent past, only the Comoros Island Index Site in the western Indian Ocean showed evidence of increased nesting (Seminoff 2004).39

Mediterranean Sea There are four nesting concentrations of green sea turtles in the Mediterranean from which data are
available

– Turkey, Cyprus, Israel, and Syria. Currently, approximately 300

- 400 females nest each year, about two

- thirds of which nest in Turkey and one

- third in Cyprus. Although green sea turtles are depleted from historic levels in the Mediterranean Sea (Kasparek et al. 2001), nesting data gathered since the early 1990s in Turkey, Cyprus, and Israel show no apparent trend in any direction. However, a declining trend is apparent along the coast of Palestine/Israel, where 300

- 350 nests were deposited each year in the 1950s (Sella 1982) compared to a mean of 6 nests per year
from 1993

- 2004 (Kuller 1999; Y. Levy, Israeli Sea Turtle Rescue Center, unpublished data). A recent discovery of green sea turtle nesting in Syr ia adds roughly 100 nests per year to green sea turtle nesting activity in the Mediterranean (Rees et al. 2005). That such a major nesting concentration could have gone unnoticed until recently (the Syria coast was surveyed in 1991, but nesting activity w as attributed to loggerheads) bodes well for the ongoing speculation that the unsurveyed coast of Libya may also host substantial nesting.

Atlantic Ocean Distribution and Life History As has occurred in other oceans of its range, green sea turtles wer e once the target of directed fisheries in the United States and throughout the Caribbean. In 1890, over one million pounds of green sea turtles were taken in a directed fishery in the Gulf of Mexico (Doughty 1984). However,

declines in the turtle fisher y throughout the Gulf of Mexico were evident by 1902 (Doughty 1984).

In the western Atlantic, large juvenile and adult green sea turtles are largely herbivorous, occurring in habitats containing benthic algae and seagrasses from Massachusetts to Argentina , including the Gulf of Mexico and Caribbean (Wynne and Schwartz 1999). Green sea turtles occur seasonally in

Mid

- Atlantic and Northeast waters such as Chesapeake Bay and Long Island Sound (Musick and Limpus 1997; Morreale and Standora 1998; Morreale et a l. 2005), which serve as foraging and developmental habitats.

Some of the principal feeding areas in the western Atlantic Ocean include the upper west coast of Florida, the Florida Keys, and the northwestern coast of the Yucatán Peninsula. Additional

i mportant foraging areas in the western Atlantic include the Mosquito and Indian River Lagoon systems and nearshore wormrock reefs between Sebastian and Ft. Pierce Inlets in Florida, Florida Bay, the Culebra archipelago and other Puerto Rico coastal waters, the south coast of Cuba, the Mosquito Coast of Nicaragua, the Caribbean coast of Panama, and scattered areas along Colombia and Brazil (Hirth 1971). The waters surrounding the island of Culebra, Puerto Rico, and its outlying keys are designated critical habitat for the green sea turtle.

Age at maturity for green sea turtles is estimated to be 20

- 50 years (Balazs 1982; Frazer and Ehrhart 1985; Seminoff 2004). As is the case with the other sea turtle species described above, adult females may nest multipl e times in a season (average 3 nests/season with approximately 100 eggs/nest) and typically do not nest in successive years (NMFS and USFWS 1991; Hirth 1997).

Population Dynamics and Status Like other sea turtle species, nest count information for green sea turtles provides information on the relative abundance of nesting, and the contribution of each nesting group to total nesting of the40

species. Nest counts can also be used to estimate the number of reproductively mature females nesting annually. The 5

- year status review for the species identified eight geographic areas considered to be primary sites for threatened green sea turtle nesting in the Atlantic/Caribbean, and reviewed the trend in nest count data for each (NMFS and USFWS 2007d). These incl ude: (1) Yucatán Peninsula, Mexico, (2) Tortuguero, Costa Rica, (3) Aves Island, Venezuela, (4) Galibi Reserve, Suriname, (5) Isla Trindade, Brazil, (6) Ascension Island, United Kingdom, (7) Bioko Island, Equatorial Guinea, and (8) Bijagos Achipelago, Guin ea

- Bissau (NMFS and USFWS 2007d). Nesting at all of these sites is considered to be stable or increasing with the exception of Bioko Island, which may be declining. However, the lack of sufficient data precludes a meaningful trend

assessment for this sit e (NMFS and USFWS 2007d).

Seminoff (2004) reviewed green sea turtle nesting data for eight sites in the western, eastern, and central Atlantic, including all of the above threatened nesting sites with the exception that nesting in
Florida was reviewed i n place of Isla Trindade, Brazil. He concluded that all sites in the central and western Atlantic showed increased nesting with the exception of nesting at Aves Island, Venezuela, while both sites in the eastern Atlantic demonstrated decreased nesting. T hese sites are not inclusive of all green sea turtle nesting in the Atlantic Ocean. However, other sites are not believed to support nesting levels high enough that would change the overall status of the species in the Atlantic (NMFS and USFWS 2007d).

By far, the most important nesting concentration for green sea turtles in the western Atlantic is in Tortuguero, Costa Rica (NMFS and USFWS 2007d). Nesting in the area has increased considerably since the 1970s and nest count data from 1999

- 2003 suggest n esting by 17,402

- 37,290 females per year (NMFS and USFWS 2007d). The number of females nesting per year on beaches in the Yucatán, at Aves Island, Galibi Reserve, and Isla Trindade number in the hundreds to low thousands, depending on the site (NMFS and U SFWS 2007d).

The status of the endangered Florida breeding population was also evaluated in the 5

- year review (NMFS and USFWS 2007d). The pattern of green sea turtle nesting shows biennial peaks in abundance, with a generally positive trend since estab lishment of the Florida index beach surveys in 1989. This trend is perhaps due to increased protective legislation throughout the Caribbean (Meylan et al. 1995), as well as protections in Florida and throughout the United States (NMFS and USFWS 2007d).

The statewide Florida surveys (2000

- 2006) have shown that a mean of approximately 5,600 nests are laid annually in Florida, with a low of 581 in 2001 to a high of 9,644 in 2005 (NMFS and USFWS 2007d). Most nesting occurs along the east coast of Florida, but occasional nesting has been documented along the Gulf coast of Florida, at Southwest Florida beaches, as well as the beaches in the Florida Panhandle (Meylan et al. 1995). More recently, green sea turtle nesting occurred on Bald Head Island, North Car olina (just east of the mouth of the Cape Fear River), Onslow Island, and Cape Hatteras National Seashore. One green sea turtle nested on a beach in Delaware in 2011, although its occurrence was considered very rare.

Threats
Green sea turtles face man y of the same natural threats as loggerhead and Kemp’s ridley sea turtles. In addition, green sea turtles appear to be particularly susceptible to fibropapillomatosis, an41

epizootic disease producing lobe

- shaped tumors on the soft portion of a turtle’s bod y. Juveniles appear to be most affected in that they have the highest incidence of disease and the most extensive lesions, whereas lesions in nesting adults are rare. Also, green sea turtles frequenting nearshore waters, areas adjacent to large human pop ulations, and areas with low water turnover, such as lagoons, have a higher incidence of the disease than individuals in deeper, more remote waters. The occurrence of fibropapilloma tumors may result in impaired foraging, breathing, or swimming ability, l eading potentially to death (George 1997).

As with the other sea turtle species, incidental fishery mortality accounts for a large proportion of

annual human

- caused mortality outside the nesting beaches. Witherington et al. (2009) observes

that becaus e green sea turtles spend a shorter time in oceanic waters and as older juveniles occur on shallow seagrass pastures (where benthic trawling is unlikely), they avoid high mortalities in pelagic longline and benthic trawl fisheries. Although the relatively low number of observed green sea turtle captures makes it difficult to estimate bycatch rates and annual take levels, green sea turtles have been observed captured in the pelagic driftnet, pelagic longline, southeast shrimp t rawl,

and mid

- Atlantic trawl and gillnet fisheries. Murray (2009a) also lists five observed captures of green turtle in Mid

- Atlantic sink gillnet gear between 1995 and 2006.

Finkbeiner et al. (2011) compiled cumulative sea turtle bycatch information in U.S. fisheries from 1990 through 2007, before and after implementation of bycatch mitigation measures. Information was obtained from peer reviewed publications and NMFS documents (e.g., Biological Opinions and bycatch reports). In the Atlantic, a mean e stimate of 137,700 bycatch interactions, of which 4,500 were mortalities, occurred annually (since implementation of bycatch mitigation measures). Kemp’s ridleys interacted with fisheries most frequently, with the highest level of mean annual mortality (2 ,700), followed by loggerheads (1,400), greens (300), and leatherbacks (40). The Southeast/Gulf of Mexico shrimp trawl fishery was responsible for the vast majority of U.S. interactions (up to 98%) and mortalities (more than 80%). While this provides an initial cumulative bycatch assessment, there are a number of caveats that should be considered when interpreting this information, such as sampling inconsistencies and limitations.

Other activities like channel dredging, marine debris, pollution, vessel s trikes, power plant impingement, and habitat destruction account for an unquantifiable level of other mortality. Stranding reports indicate that between 200

- 400 green sea turtles strand annually along the eastern U.S. coast from a variety of causes most o f which are unknown (STSSN database).

Summary of Status of Green Sea Turtles
A review of 32 Index Sites 4 distributed globally revealed a 48

- 67% decline in the number of mature females nesting annually over the last three generations 5 (Seminoff 2004). A n evaluation of green sea turtle nesting sites was also conducted as part of the 5

- year status review of the species (NMFS

4 The 32 Index Sites include all of the major known nesting areas as well as many of the lesser nesting areas for which quantitative data are available.

5 Generation times ranged from 35.5 years to 49.5 years for the assessment depending on the Index Beach site42

and USFWS 2007d). Of the 23 threatened nesting groups assessed in that report for which nesting

abundance trends could be determined , ten were considered to be increasing, nine were considered stable, and four were considered to be decreasing (NMFS and USFWS 2007d). Nesting groups were considered to be doing relatively well (the number of sites with increasing nesting were greater tha n the number of sites with decreasing nesting) in the Pacific, western Atlantic, and central Atlantic (NMFS and USFWS 2007d). However, nesting populations were determined to be doing relatively poorly in Southeast Asia, eastern Indian Ocean, and perhaps t he Mediterranean. Overall, based on mean annual reproductive effort, the report estimated that 108,761 to 150,521 females nest each year among the 46 threatened and endangered nesting sites included in the evaluation (NMFS and USFWS 2007d). However, give n the late age to maturity for green sea turtles, caution is urged regarding the status for any of the nesting groups since no area has a dataset spanning a full green sea turtle generation (NMFS and USFWS 2007d).

Seminoff (2004) and NMFS and USFWS (2007 d) made comparable conclusions with regard to nesting for four nesting sites in the western Atlantic that indicate sea turtle abundance is increasing in the Atlantic Ocean. Each also concluded that nesting at Tortuguero, Costa Rica represented the

most im portant nesting area for green sea turtles in the western Atlantic and that nesting had increased markedly since the 1970s (Seminoff 2004; NMFS and USFWS 2007d).

However, the 5

- year review also noted that the Tortuguero nesting stock continued to be aff ected by ongoing directed take at their primary foraging area in Nicaragua (NMFS and USFWS 2007d). The endangered breeding population in Florida appears to be increasing based upon index nesting data
from 1989

- 2010 (NMFS 2011).

As with the other sea turt le species, fishery mortality accounts for a large proportion of annual

human

- caused mortality outside the nesting beaches, while other activities like hopper dredging, pollution, and habitat destruction account for an unknown level of other mortality. Ba sed on its 5

- year status review of the species, NMFS and USFWS (2007d) determined that the listing classification for green sea turtles should not be changed. However, it was also determined that an analysis and review of the species should be conducted i n the future to determine whether DPSs should be identified (NMFS and USFWS 2007d).

4. 5 Status of Leatherback Sea Turtles Leatherback sea turtles are widely distributed throughout the oceans of the world, including the Atlantic, Pacific, and Indian Oceans , and the Mediterranean Sea (Ernst and Barbour 1972). Leatherbacks are the largest living turtles and range farther than any other sea turtle species. Their large size and tolerance of relatively low water temperatures allows them to occur in boreal wate rs such as those off Labrador and in the Barents Sea (NMFS and USFWS 1995).

In 1980, the leatherback population was estimated at approximately 115,000 adult females globally (Pritchard 1982). By 1995, this global population of adult females was estimat ed to have declined to 34,500 (Spotila et al. 1996). The most recent population size estimate for the North Atlantic alone is a range of 34,000

- 94,000 adult leatherbacks (TEWG 2007). Thus, there is substantial uncertainty with respect to global populatio n estimates of leatherback sea turtles.43

Pacific Ocean Leatherback nesting has been declining at all major Pacific basin nesting beaches for the last two decades (Spotila et al. 1996, 2000; NMFS and USFWS 1998a, 2007b; Sarti et al. 2000). In the

wester n Pacific, major nesting beaches occur in Papua New Guinea, Indonesia, Solomon Islands, and Vanuatu, with an approximate 2,700

- 4,500 total breeding females, estimated from nest counts (Dutton et al. 2007). While there appears to be overall long term popul ation decline, the Indonesian nesting aggregation at Jamursba

- Medi is currently stable (since 1999), although there is evidence to suggest a significant and continued decline in leatherback nesting in Papua New Guinea and Solomon Islands over the past 30 y ears (NMFS 2011). Leatherback sea turtles disappeared from India before 1930, have been virtually extinct in Sri Lanka since 1994, and appear to be approaching extinction in Malaysia (Spotila et al. 2000). In Fiji, Thailand, and Australia,

leatherback se a turtles have only been known to nest in low densities and scattered sites.

The largest, extant leatherback nesting group in the Indo

- Pacific lies on the North Vogelkop coast of West Papua, Indonesia, with 3,000

- 5,000 nests reported annually in the 199 0s (Suárez et al. 2000). However, in 1999, local villagers started reporting dramatic declines in sea turtles near their villages (Suárez 1999). Declines in nesting groups have been reported throughout the western Pacific region where observers report th at nesting groups are well below abundance levels that were observed several decades ago ( e.g. , Suárez 1999).

Leatherback sea turtles in the western Pacific are threatened by poaching of eggs, killing of nesting females, human encroachment on nesting be aches, incidental capture in fishing gear, beach erosion, and egg predation by animals.

In the eastern Pacific Ocean, major leatherback nesting beaches are located in Mexico and Costa Rica, where nest numbers have been declining. According to reports f rom the late 1970s and early 1980s, beaches located on the Mexican Pacific coasts of Michoacán, Guerrero, and Oaxaca sustained a large portion, perhaps 50%, of all global nesting by leatherbacks (Sarti et al. 1996). A
dramatic decline has been seen on nes ting beaches in Pacific Mexico, where aerial survey data was
used to estimate that tens of thousands of leatherback nests were laid on the beaches in the 1980s (Pritchard 1982), but a total of only 120 nests on the four primary index beaches (combined) wer e counted in the 2003

- 2004 season (Sarti Martinez et al. 2007). Since the early 1980s, the Mexican Pacific population of adult female leatherback turtles has declined to slightly more than 200 during
1998

- 1999 and 1999

- 2000 (Sarti et al. 2000). Spotila e t al. (2000) reported the decline of the leatherback nesting at Playa Grande, Costa Rica, which had been the fourth largest nesting group in the world and the most important nesting beach in the Pacific. Between 1988 and 1999, the nesting group declined f

rom 1,367 to 117 female leatherback sea turtles. Based on their models, Spotila et al. (2000) estimated that the group could fall to less than 50 females by 2003

- 2004. Another, more recent, analysis of the Costa Rican nesting beaches indicates a decline in nesting during 15 years of monitoring (1989

- 2004) with approximately 1,504 females nesting in 1988

- 1989 to an average of 188 females nesting in 2000

- 2001 and 2003

- 2004 (NMFS and USFWS 2007b), indicating that the reductions in nesting females were not as extreme as the reductions predicted by Spotila et al. (2000).

On September 26, 2007, NMFS received a petition to revise the critical habitat designation for leatherback sea turtles to include waters along the U.S. West Coast. On December 28, 2007, NMF S44

published a positive 90

- day finding on the petition and convened a critical habitat review team. On January 26, 2012, NMFS published a final rule to revise the critical habitat designation to include three particular areas of marine habitat. The desig nation includes approximately 16,910 square miles along the California coast from Point Arena to Point Arguello east of the 3,000 meter depth contour, and 25,004 square miles from Cape Flattery, Washington to Cape Blanco, Oregon east of the 2,000 meter dep th contour. The areas comprise approximately 41,914 square miles of marine habitat and include waters from the ocean surface down to a maximum depth of 262 feet. The designated critical habitat areas contain the physical or biological feature essential t o the conservation of the species that may require special management conservation or protection. In particular, the team identified one Primary Constituent Element: the occurrence of prey species, primarily scyphomedusae of the order Semaeostomeae, of su fficient condition, distribution, diversity, abundance and density necessary to support individual as well as population growth, reproduction, and development of leatherbacks.

Leatherbacks in the eastern Pacific face a number of threats to their surviva l. For example, commercial and artisanal swordfish fisheries off Chile, Columbia, Ecuador, and Peru; purse seine fisheries for tuna in the eastern tropical Pacific Ocean; and California/Oregon drift gillnet fisheries are known to capture, injure, or kill leatherbacks in the eastern Pacific Ocean. Given the declines in leatherback nesting in the Pacific, some researchers have concluded that the leatherback is on the verge of extinction in the Pacific Ocean ( e.g., Spotila et al. 1996, 2000).

Indian Ocean Leatherbacks nest in several areas around the Indian Ocean. These sites include Tongaland, South Africa (Pritchard 2002) and the Andaman and Nicobar Islands (Andrews et al. 2002). Intensive survey and tagging work in 2001 provided new information on the level of nesting in the Andaman and Nicobar Islands (Andrews et al. 2002). Based on the survey and tagging work, it was estimated
that 400

- 500 female leatherbacks nest annually on Great Nicobar Island (Andrews et al. 2002). The number of nesting females using the Andaman and Nicobar Islands combined was estimated around 1,000 (Andrews and Shanker 2002). Some nesting also occurs along the coast of Sri Lanka, although in much smaller numbers than in the past (Pritchard 2002).

Mediterranean Sea
Casale e t al. (2003) reviewed the distribution of leatherback sea turtles in the Mediterranean. Among the 411 individual records of leatherback sightings in the Mediterranean, there were no nesting records. Nesting in the Mediterranean is believed to be extremel y rare if it occurs at all. Leatherbacks found in Mediterranean waters originate from the Atlantic Ocean (P. Dutton, NMFS, unpublished data).

Atlantic Ocean Distribution and Life History Evidence from tag returns and strandings in the western Atlantic suggests that adult leatherback sea turtles engage in routine migrations between northern temperate and tropical waters (NMFS and USFWS 1992). Leatherbacks are frequently thought of as a pelagic species that feed on jellyfish ( e.g. , Stomolophus, Chryaora

, and Aurelia species) and tunicates ( e.g. , salps, pyrosomas) (Rebel 1974; Davenport and Balazs 1991). However, leatherbacks are also known to use coastal waters of45

the U.S. continental shelf (James et al. 2005a; Eckert et al. 2006; Murphy et al. 2006), as well as the European continental shelf on a seasonal basis (Witt et al. 2007).

Tagging and satellite telemetry data indicate that leatherbacks from the western North Atlantic nesting beaches use the entire North Atlantic Ocean (TEWG 2007). For example , leatherbacks tagged at nesting beaches in Costa Rica have been found in Texas, Florida, South Carolina, Delaware, and New York (STSSN database). Leatherback sea turtles tagged in Puerto Rico, Trinidad, and the Virgin Islands have also been subsequently found on U.S. beaches of southern,

Mid

- Atlantic, and northern states (STSSN database). Leatherbacks from the South Atlantic nesting assemblages (West Africa, South Africa, and Brazil) have not been re

- sighted in the western North Atlantic (TEWG 2007).

The CETAP aerial survey of the outer Continental Shelf from Cape Hatteras, North Carolina to Cape Sable, Nova Scotia conducted between 1978 and 1982 showed leatherbacks to be present throughout the area with the most numerous sightings made from the Gulf o f Maine south to Long Island. Leatherbacks were sighted in water depths ranging from 1 to 4,151 m, but 84.4% of sightings were in waters less than 180 m (Shoop and Kenney 1992). Leatherbacks were sighted in waters within a sea surface temperature range s imilar to that observed for loggerheads; from 7°

- 27.2°C (Shoop and Kenney 1992). However, leatherbacks appear to have a greater tolerance for colder waters in comparison to loggerhead sea turtles since more leatherbacks were found at the lower temperature s (Shoop and Kenney 1992). Studies of satellite tagged leatherbacks suggest that they spend 10%

- 41% of their time at the surface, depending on the phase of their migratory cycle (James et al. 2005b). The greatest amount of surface time (up to 41%) was re corded when leatherbacks occurred in continental shelf and slope waters north of 38°N (James et al. 2005b).

In 1979, the waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands were designated as

critical habitat for the leatherback sea turtle. On February 2, 2010, NMFS received a petition to revise the critical habitat designation for leatherback sea turtles to include waters adjacent to a major nesting beach in Puerto Rico. NMFS published a 90

- day finding on the petition on July 16, 2010, whic h found that the petition did not present substantial scientific information indicating that the petitioned revision was warranted. The original petitioners submitted a second petition on November 2, 2010 to revise the critical habitat designation to agai n include waters adjacent to a major nesting beach in Puerto Rico, including additional information on the usage of the

waters. NMFS determined on May 5, 2011, that a revision to critical habitat off Puerto Rico may be warranted, and an analysis is underw ay. Note that on August 4, 2011, FWS issued a determination that revision to critical habitat along Puerto Rico should be made and will be addressed during the future planned status review.

Leatherbacks are a long lived species (>30 years). They were or iginally believed to mature at a younger age than loggerhead sea turtles, with a previous estimated age at sexual maturity of about

13

- 14 years for females with 9 years reported as a likely minimum (Zug and Parham 1996) and 19 years as a likely maximum (NM FS SEFSC 2001). However, new sophisticated analyses suggest that leatherbacks in the Northwest Atlantic may reach maturity at 24.5

- 29 years of age (Avens et al. 2009). In the United States and Caribbean, female leatherbacks nest from March through July. In the Atlantic, most nesting females average between 150

- 160 cm curved carapace length (CCL), although smaller (<145 cm CCL) and larger nesters are observed (Stewart et al. 2007, TEWG46

2007). They nest frequently (up to seven nests per year) during a nes ting season and nest about every 2

- 3 years. They produce 100 eggs or more in each clutch and can produce 700 eggs or more per nesting season (Schultz 1975). However, a significant portion (up to approximately 30%) of the eggs can be infertile. Therefore , the actual proportion of eggs that can result in hatchlings is less than the total number of eggs produced per season. As is the case with other sea turtle species, leatherback hatchlings enter the water soon after hatching. Based on a review of all si ghtings of leatherback sea turtles of <145 cm CCL, Eckert (1999) found that leatherback juveniles remain in waters warmer than 26°C until they exceed 100 cm CCL.

Population Dynamics and Status As described earlier, sea turtle nesting survey data is impo rtant in that it provides information on the relative abundance of nesting, and the contribution of each population/subpopulation to total nesting of the species. Nest counts can also be used to estimate the number of reproductively mature females nesting annually, and as an indicator of the trend in the number of nesting females in the nesting group. The 5

- year review for leatherback sea turtles (NMFS and USFWS 2007b) compiled the most recent information on mean number of leatherback nests per year for e ach of the seven leatherback populations or groups of populations that were identified by the Leatherback TEWG as occurring within the Atlantic. These are: Florida, North Caribbean, Western Caribbean, Southern Caribbean, West Africa, South Africa, and Bra zil (TEWG 2007).

In the United States, the Florida Statewide Nesting Beach Survey program has documented an increase in leatherback nesting numbers from 98 nests in 1988 to between 800 and 900 nests in the early 2000s (NMFS and USFWS 2007b). Stewart et al. (2011) evaluated nest counts from 68 Florida beaches over 30 years (1979

- 2008) and found that nesting increased at all beaches with trends ranging from 3.1%

- 16.3% per year, with an overall increase of 10.2% per year. An analysis
of Florida’s index ne sting beach sites from 1989

- 2006 shows a substantial increase in leatherback nesting in Florida during this time, with an annual growth rate of approximately 1.17 (TEWG 2007). The TEWG reports an increasing or stable nesting trend for all of the seven pop ulations or groups of populations with the exception of the Western Caribbean and West Africa. The leatherback rookery along the northern coast of South America in French Guiana and Suriname supports the majority of leatherback nesting in the western Atla ntic (TEWG 2007), and represents more than half of total nesting by leatherback sea turtles worldwide (Hilterman and Goverse 2004). Nest numbers in Suriname have shown an increase and the long

- term trend for the Suriname and French Guiana nesting group se ems to show an increase (Hilterman and Goverse 2004). In 2001, the number of nests for Suriname and French Guiana combined was 60,000, one of the highest numbers observed for this region in 35 years (Hilterman and Goverse 2004). The TEWG (2007) report in dicates that using nest numbers from 1967

- 2005, a positive population growth rate was
found over the 39

- year period for French Guinea and Suriname, with a 95% probability that the population was growing. Given the magnitude of leatherback nesting in this area compared to other nest sites, negative impacts in leatherback sea turtles in this area could have profound impacts on the entire species.

The CETAP aerial survey conducted from 1978

- 1982 estimated the summer leatherback population

for the northeast ern United States at approximately 300

- 600 animals (from near Nova Scotia, Canada to Cape Hatteras, North Carolina) (Shoop and Kenney 1992). However, the estimate was
based on turtles visible at the surface and does not include those that were below the s urface out of47

view. Therefore, it likely underestimated the leatherback population for the northeastern United States at the time of the survey. Estimates of leatherback abundance of 1,052 turtles (C.V. = 0.38) and 1,174 turtles (C.V. = 0.52) were obtain ed from surveys conducted from Virginia to the Gulf of St. Lawrence in 1995 and 1998, respectively (Palka 2000). However, since these estimates were also based on sightings of leatherbacks at the surface, the author considered the estimates to be negative ly biased and the true abundance of leatherbacks may be 4.27 times higher (Palka 2000).

Threats
The 5

- year status review (NMFS and USFWS 2007b) and TEWG (2007) report provide summaries of natural as well as anthropogenic threats to leatherback sea turtle s. Of the Atlantic sea turtle species, leatherbacks seem to be the most vulnerable to entanglement in fishing gear, trap/pot gear in particular. This susceptibility may be the result of their body type (large size, long pectoral flippers, and lack of a h ard shell), their diving and foraging behavior, their distributional overlap with the gear, their possible attraction to gelatinous organisms and algae that collect on buoys and buoy lines at or near the surface, and perhaps to the lightsticks used to attr act target species in longline fisheries. Leatherbacks entangled in fishing gear generally have a reduced ability to feed, dive, surface to breathe, or perform any other behavior essential to survival (Balazs 1985). In addition to drowning from forced su bmergence, they may be more susceptible to boat strikes if forced to remain at the surface, and entangling lines can constrict blood flow resulting in tissue necrosis. The long

- term impacts of entanglement on leatherback health remain unclear. Innis et a l. (2010) conducted a health evaluation of leatherback sea turtles during direct capture (n=12) and disentanglement (n=7). They found no significant difference in many of the measured health parameters between entangled and directly captured turtles. How ever, blood parameters, including but not limited to sodium, chloride, and blood urea nitrogen, for entangled turtles showed several key differences that were most likely due to reduced foraging and associated seawater ingestion, as well as a general stres s response.

Finkbeiner et al. (2011) compiled cumulative sea turtle bycatch information in U.S. fisheries from 1990 through 2007, before and after implementation of bycatch mitigation measures. Information was obtained from peer reviewed publications an d NMFS documents (e.g., Biological Opinions and bycatch reports). In the Atlantic, a mean estimate of 137,700 bycatch interactions, of which 4,500 were mortalities, occurred annually (since implementation of bycatch mitigation measures). Kemp’s ridleys i nteracted with fisheries most frequently, with the highest level of mean annual mortality (2,700), followed by loggerheads (1,400), greens (300), and leatherbacks (40). The Southeast/Gulf of Mexico shrimp trawl fishery was responsible for the vast majorit y of U.S. interactions (up to 98%) and mortalities (more than 80%). While this provides an initial cumulative bycatch assessment, there are a number of caveats that should be considered when interpreting this information, such as sampling inconsistencies and limitations.

Leatherbacks have been documented interacting with longline, trap/pot, trawl, and gillnet fishing gear. For instance, an estimated 6,363 leatherback sea turtles were documented as caught by the U.S. Atlantic tuna and swordfish longline f isheries between 1992

- 1999 (NMFS SEFSC 2001). Currently, the U.S. tuna and swordfish longline fisheries managed under the HMS FMP are estimated to capture 1,764 leatherbacks (no more than 252 mortalities) for each 3

- year period starting in 2007 (NMFS 2004 a). In 2010, there were 26 observed interactions between leatherback sea turtles and longline gear used in the HMS fishery (Garrison and Stokes 2011a, 2011b). All48

leatherbacks were released alive, with all gear removed for the majority of captures. Whil e 2010 total estimates are not yet available, in 2009, 285.8 (95% CI: 209.6

- 389.7) leatherback sea turtles are estimated to have been taken in the longline fisheries managed under the HMS FMP based on the observed takes (Garrison and Stokes 2010). The 200 9 estimate continues a downward trend since 2007 and remains well below the average prior to implementation of gear regulations (Garrison and Stokes 2010). Since the U.S. fleet accounts for only 5%

- 8% of the longline hooks fished in the Atlantic Ocean, ad ding up the under

- represented observed takes of the other 23 countries actively fishing in the area would likely result in annual take estimates of thousands of leatherbacks over different life stages (NMFS SEFSC 2001). Lewison et al. (2004) estimated tha t 30,000

- 60,000 leatherbacks were taken in all Atlantic longline fisheries in 2000 (including the U.S. Atlantic tuna and swordfish longline fisheries, as well as others).

Leatherbacks are susceptible to entanglement in the lines associated with trap/pot gear used in
several fisheries. From 1990

- 2000, 92 entangled leatherbacks were reported from New York through Maine (Dwyer et al. 2002). Additional leatherbacks stranded wrapped in line of unknown origin or with evidence of a past entanglement (Dwyer et al. 2002). More recently, from 2002 to 2010, NMFS received 137 reports of sea turtles entangled in vertical lines from Maine to Virginia, with 128 events confirmed (verified by photo documentation or response by a trained responder; NMFS 2008a). Of the 128 confirmed events during this period, 117 events involved leatherbacks. NMFS identified the gear type and fishery for 72 of the 117 confirmed events, which included lobster (42 6 ), whelk/conch (15), black sea bass (10), crab (2), and research pot gear ( 1). A review of leatherback mortality documented by the STSSN in Massachusetts suggests that vessel strikes and entanglement in fixed gear (primarily lobster pots and whelk pots) are the principal sources of this mortality (Dwyer et al. 2002).

Leatherb ack interactions with the U.S. South Atlantic and Gulf of Mexico shrimp fisheries are also known to occur (NMFS 2002). Leatherbacks are likely to encounter shrimp trawls working in the coastal waters off the U.S. Atlantic coast (from Cape Canaveral, Flori da through North Carolina) as they make their annual spring migration north. For many years, TEDs that were required for use in the U.S. South Atlantic and Gulf of Mexico shrimp fisheries were less effective for leatherbacks as compared to the smaller, ha rd

- shelled turtle species, because the TED openings were too small to allow leatherbacks to escape. To address this problem, NMFS issued a final rule on February 21, 2003, to amend the TED regulations (68 FR 8456, February 21, 2003 ). Modifications to the design of TEDs are now required in order to exclude leatherbacks as well as large benthic immature and sexually mature loggerhead and green sea turtles. Given those modifications, Epperly et al. (2002) anticipated an average of 80 leatherback mortalities a year in shrimp gear interactions, dropping to an estimate of 26 leatherback mortalities in 2009 due to effort reduction in the Southeast shrimp fishery ( Memo from Dr. B. Ponwith, SEFSC, to Dr. R. Crabtree, SERO, January 5, 2011 ).

Other trawl fisherie s are also known to interact with leatherback sea turtles although on a much smaller scale. In October 2001, for example, a NMFS fisheries observer documented the take of a leatherback in a bottom otter trawl fishing for Loligo squid off of Delaware. TED s are not currently

6 One case involved both lobster and whelk/conch gear.49

required in this fishery. In November 2007, fisheries observers reported the capture of a leatherback sea turtle in bottom otter trawl gear fishing for summer flounder.

Gillnet fisheries operating in the waters of the Mid

- Atlantic s tates are also known to capture, injure,
and/or kill leatherbacks when these fisheries and leatherbacks co

- occur. Data collected by the NEFSC Fisheries Observer Program from 1994

- 1998 (excluding 1997) indicate that a total of 37
leatherbacks were incident ally captured (16 lethally) in drift gillnets set in offshore waters from Maine to Florida during this period. Observer coverage for this period ranged from 54%

- 92%. In North Carolina, six additional leatherbacks were reported captured in gillnet sets in the spring (NMFS SEFSC 2001). In addition to these, in September 1995, two dead leatherbacks were
removed from an 11

- inch (28.2

- cm) monofilament shark gillnet set in the nearshore waters off of Cape Hatteras (STSSN unpublished data reported in NMFS SEFSC 2001). Lastly, Murray (2009a) reports five observed leatherback captures in Mid

- Atlantic sink gillnet fisheries between 1994 and

2008.

Fishing gear interactions can occur throughout the range of leatherbacks. Entanglements occur in
Canadian waters w here Goff and Lien (1988) reported that 14 of 20 leatherbacks encountered off the coast of Newfoundland/Labrador were entangled in fishing gear including salmon net, herring net, gillnet, trawl line, and crab pot line. Leatherbacks are known to drown in f ish nets set in coastal waters of Sao Tome, West Africa (Castroviejo et al. 1994; Graff 1995). Gillnets are one of the suspected causes for the decline in the leatherback sea turtle population in French Guiana (Chevalier et al. 1999), and gillnets targeti ng green and hawksbill sea turtles in the waters of coastal Nicaragua also incidentally catch leatherback sea turtles (Lagueux et al. 1998). Observers on shrimp trawlers operating in the northeastern region of Venezuela documented the capture of six

leathe rbacks from 13,600 trawls (Marcano and Alio

- M. 2000). An estimated 1,000 mature female leatherback sea turtles are caught annually in fishing nets off of Trinidad and Tobago with mortality
estimated to be between 50%

- 95% (Eckert and Lien 1999). Many of t he sea turtles do not die as a result of drowning, but rather because the fishermen cut them out of their nets (NMFS SEFSC 2001).

Leatherbacks may be more susceptible to marine debris ingestion than other sea turtle species due to the tendency of floati ng debris to concentrate in convergence zones that juveniles and adults use for feeding (Shoop and Kenney 1992; Lutcavage et al. 1997). Investigations of the necropsy results of leatherback sea turtles revealed that a substantial percentage (34% of the 40 8 leatherback necropsies’ recorded between 1885 and 2007) reported plastic within the turtles’ stomach contents, and in some cases (8.7% of those cases in which plastic was reported), blockage of the gut was found in a manner that may have caused the morta lity (Mrosovsky et al. 2009). An increase in reports of plastic ingestion was evident in leatherback necropsies conducted after the late 1960s (Mrosovsky et al. 2009). Along the coast of Peru, intestinal contents of 19 of 140 (13%)

leatherback carcasses were found to contain plastic bags and film (Fritts 1982). The presence of plastic debris in the digestive tract suggests that leatherbacks might not be able to distinguish between prey items ( e.g ., jellyfish) and plastic debris (Mrosovsky 1981). Balazs (1985) speculated that plastic objects may resemble food items by their shape, color, size, or even movements as they drift about, and induce a feeding response in leatherbacks.50

Summary of Status for Leatherback Sea Turtles In the Pacific Ocean, the ab undance of leatherback sea turtles on nesting beaches has declined dramatically over the past 10 to 20 years. Nesting groups throughout the eastern and western Pacific Ocean have been reduced to a fraction of their former abundance by the combined effects of human activities that have reduced the number of nesting females and reduced the reproductive success of females that manage to nest (for example, egg poaching) (NMFS and USFWS 2007b). No reliable long term trend data for the Indian Ocean populations are currently available. While leatherbacks are known to occur in the Mediterranean Sea, nesting in this region is not known to occur (NMFS and USFWS 2007b).

Nest counts in many areas of the Atlantic Ocean show increasing trends, including for beaches in Suriname and French Guiana which support the majority of leatherback nesting (NMFS and USFWS 2007b). The species as a whole continues to face numerous threats in nesting and marine habitats. As with the other sea turtle species, fishery mortality acco unts for a large proportion of

annual human

- caused mortality outside the nesting beaches, while other activities like pollution and habitat destruction account for an unknown level of other mortality. The long term recovery potential of this species may b e further threatened by observed low genetic diversity, even in the largest nesting groups like French Guiana and Suriname (NMFS and USFWS 2007b).

Based on its 5

- year status review of the species, NMFS and USFWS (2007b) determined that endangered leathe rback sea turtles should not be delisted or reclassified. However, it was also determined that an analysis and review of the species should be conducted in the future to determine whether DPSs should be identified (NMFS and USFWS 2007b).

4.6 Shortnose Sturgeon

Shortnose sturgeon life history Shortnose sturgeon are benthic fish that mainly occupy the deep channel sections of large rivers

. They feed on a variety of benthic and epibenthic invertebrates including mollusks, crustaceans (amphipods, chironom ids, isopods), and oligochaete worms (Vladykov and Greeley 1963; Dadswell
1979 in NMFS 1998)

. Shortnose sturgeon have similar lengths at maturity (45

- 55 cm fork length) throughout their range, but, because sturgeon in southern rivers grow faster than thos e in northern rivers, southern sturgeon mature at younger ages (Dadswell et al. 1984). Shortnose sturgeon are long

- lived (30

- 40 years) and, particularly in the northern extent of their range, mature at late ages

. In the north, males reach maturity at 5 t o 10 years, while females mature between 7 and 13 years

. Based on limited data, females spawn every three to five years while males spawn approximately every two years. The spawning period is estimated to last from a few days to several weeks. Spawning begins from late winter/early spring (southern rivers) to mid to late spring (northern rivers) 7 when the freshwater temperatures increase to 8

- 9oC. Several published reports have presented the problems facing long

- lived species that delay sexual maturity (Crouse et al. 1987;
Crowder et al. 1994; Crouse 1999). In general, these reports concluded that animals that delay sexual maturity and reproduction must have high annual survival as juveniles through adults to

7 For purposes of this consultation, Northern rivers are considered to include tributaries of the Chesapeake Bay northward to the St. John River in Canada. Southern rivers are those south of the Chesapeake Bay.51

ensure that enough juveniles survive to repr oductive maturity and then reproduce enough times to maintain stable population sizes.

Total instantaneous mortality rates (Z) are available for the Saint John River (0.12

- 0.15; ages 14

- 55; Dadswell 1979), Upper Connecticut River (0.12; Taubert 1980b) , and Pee Dee

- Winyah River (0.08

- 0.12; Dadswell et al. 1984)

. Total instantaneous natural mortality (M) for shortnose sturgeon in the lower Connecticut River was estimated to be 0.13 (T. Savoy, Connecticut Department of Environmental Protection, personal communication)

. There is no recruitment information available for shortnose sturgeon because there are no commercial fisheries for the species

. Estimates of annual egg production for this species are difficult to calculate because females do not spawn ev ery year (Dadswell et al. 1984)

. Further, females may abort spawning attempts, possibly due to interrupted migrations or unsuitable environmental conditions (NMFS 1998)

. Thus, annual egg production is likely to vary greatly in this species. Fecundity e stimates have been made and range from 27,000 to 208,000 eggs/female and a mean of 11,568 eggs/kg body weight (Dadswell et al. 1984).

At hatching, shortnose sturgeon are blackish

- colored, 7

- 11mm long and resemble tadpoles (Buckley and Kynard 1981). In 9

- 12 days, the yolk sac is absorbed and the sturgeon develops into larvae which are about 15mm total length (TL; Buckley and Kynard 1981). Sturgeon larvae are believed to begin downstream migrations at about 20mm TL. Dispersal rates differ at least regio nally, laboratory studies on Connecticut River larvae indicated dispersal peaked 7

- 12 days after hatching in comparison to Savannah River larve that had longer dispersal rates with multiple, prolonged peaks, and a low level of downstream movement that cont inued throughout the entire larval and early juvenile period (Parker 2007). Synder (1988) and Parker (2007) considered individuals to be juvenile when they reached 57mm TL. Laboratory studies demonstrated that larvae from the
Connecticut River made thi s transformation on day 40 while Savannah River fish made this transition on day 41 and 42 (Parker 2007).

The juvenile phase can be subdivided in to young of the year (YOY) and immature/ sub

- adults.
YOY and sub

- adult habitat use differs and is believed to be a function of differences in salinity tolerances. Little is known about YOY behavior and habitat use, though it is believed that they are typically found in channel areas within freshwater habitats upstream of the saltwedge for about one year (Dads well et al. 1984, Kynard 1997). One study on the stomach contents of YOY revealed that the prey items found corresponded to organisms that would be found in the channel environment (amphipods) (Carlson and Simpson 1987). Sub

- adults are typically describe d as age one or older and occupy similar spatio

- temporal patterns and habitat

- use as adults (Kynard 1997). Though there is evidence from the Delaware River that sub

- adults may overwinter in different areas than adults and no not form dense aggregations li ke adults (ERC Inc. 2007). Sub

- adults feed indiscriminately, typical prey items found in stomach contents include aquatic insects, isopods, and amphipods along with large amounts of mud, stones, and plant material (Dadswell 1979, Carlson and Simpson 1987, Bain 1997).

In populations that have free access to the total length of a river (e.g., no dams within the species’ range in a river: Saint John, Kennebec, Altamaha, Savannah, Delaware and Merrimack Rivers), spawning areas are located at the farthest up stream reach of the river (NMFS 1998). In the northern extent of their range, shortnose sturgeon exhibit three distinct movement patterns. These migratory52

movements are associated with spawning, feeding, and overwintering activities. In spring, as water temperatures reach between 7

- 9.7oC, pre

- spawning shortnose sturgeon move from overwintering grounds to spawning areas. Spawning occurs from mid/late March to mid/late May depending upon location and water temperature. Sturgeon spawn in upper, freshwater areas and feed and overwinter in both fresh and saline habitats. Shortnose sturgeon spawning migrations are characterized by rapid, directed and often extensive upstream movement (NMFS 1998).

Shortnose sturgeon are believed to spawn at discrete sites within their natal river (Kieffer and Kynard 1996). In the Merrimack River, males returned to only one reach during a four year telemetry study (Kieffer and Kynard 1996). Squires (1982) found that during the three years of the study in the Androscoggin R iver, adults returned to a 1

- km reach below the Brunswick Dam and Kieffer and Kynard (1996) found that adults spawned within a 2

- km reach in the Connecticut River for three consecutive years. Spawning occurs over channel habitats containing gravel, rubble , or rock

- cobble substrates (Dadswell et al. 1984; NMFS 1998)

. Additional environmental conditions associated with spawning activity include decreasing river discharge following the peak spring freshet, water temperatures ranging from 8

- 15o, and bottom water velocities of 0.4 to 0.8 m/sec (Dadswell et al. 1984; Hall et al. 1991, Kieffer and Kynard 1996, NMFS 1998). For northern shortnose sturgeon, the temperature range for spawning is 6.5

- 18.0oC (Kieffer and Kynard in press). Eggs are separate when spa wned but become adhesive within approximately 20 minutes of fertilization (Dadswell et al. 1984). Between 8° and 12°C, eggs generally hatch after approximately 13 days. The larvae are photonegative, remaining on the bottom for several days. Buckley and Ky nard (1981) found week old larvae to be photonegative and form aggregations with other larvae
in concealment.

Adult shortnose sturgeon typically leave the spawning grounds soon after spawning. Non

- spawning movements include rapid, directed post

- spawning movements to downstream feeding areas in spring and localized, wandering movements in summer and winter (Dadswell et al. 1984; Buckley and Kynard 1985; O’Herron et al. 1993)

. Kieffer and Kynard (1993) reported that post

- spawning migrations were correlate d with increasing spring water temperature and river discharge. Young

of

- the

- year shortnose sturgeon are believed to move downstream after hatching (Dovel 1981) but
remain within freshwater habitats

. Older juveniles or sub

- adults tend to move downstream in fall and winter as water temperatures decline and the salt wedge recedes and move upstream in spring and feed mostly in freshwater reaches during summer

.

Juvenile shortnose sturgeon generally move upstream in spring and summer and move back
downstream in fall and winter; however, these movements usually occur in the region above the saltwater/freshwater interface (Dadswell et al. 1984; Hall et al. 1991). Non

- spawning movements include wandering movements in summer and winter (Dadswell et al. 1984; Buc kley and Kynard 1985; O’Herron et al. 1993). Kieffer and Kynard (1993) reported that post

- spawning migrations were correlated with increasing spring water temperature and river discharge. Adult sturgeon occurring in freshwater or freshwater/tidal reaches of rivers in summer and winter often occupy only a few short reaches of the total length (Buckley and Kynard 1985). Summer concentration areas in southern rivers are cool, deep, thermal refugia, where adult and juvenile shortnose sturgeon congregate (Flo urney et al. 1992; Rogers et al. 1994; Rogers and Weber 1995; Weber 1996).

While shortnose sturgeon do not undertake the significant marine migrations seen in Atlantic53

sturgeon, telemetry data indicates that shortnose sturgeon do make localized coastal migrations. This is particularly true within certain areas such as the Gulf of Maine (GOM) and among rivers in the Southeast. Interbasin movements have been documented among rivers within the GOM and between the GOM and the Merrimack, between the Connect icut and Hudson rivers, the Delaware River and Chesapeake Bay, and among the rivers in the Southeast.

The temperature preference for shortnose sturgeon is not known (Dadswell et al. 1984) but shortnose sturgeon have been found in waters with temperat ures as low as 2 to 3oC (Dadswell et al. 1984) and as high as 34oC (Heidt and Gilbert 1978). However, temperatures above 28oC are thought to adversely affect shortnose sturgeon. In the Altamaha River, temperatures of 28

- 30oC during summer months create u nsuitable conditions and shortnose sturgeon are found in deep cool water refuges. Dissolved oxygen (DO) also seems to play a role in temperature tolerance, with increased stress levels at higher temperatures with low DO versus the ability to withstand hig her temperatures with elevated DO (Niklitchek 2001).

Shortnose sturgeon are known to occur at a wide range of depths. A minimum depth of 0.6m is necessary for the unimpeded swimming by adults. Shortnose sturgeon are known to occur at depths of up t o 30m but are generally found in waters less than 20m (Dadswell et al. 1984; Dadswell 1979). Shortnose sturgeon have also demonstrated tolerance to a wide range of salinities. Shortnose sturgeon have been documented in freshwater (Taubert 1980; Taubert a nd Dadswell 1980) and in waters with salinity of 30 parts

- per

- thousand (ppt) (Holland and Yeverton 1973; Saunders and Smith 1978). Mcleave et al. (1977) reported adults moving freely through a wide range of salinities, crossing waters with differences of up to 10ppt within a two hour period. The tolerance of shortnose sturgeon to increasing salinity is thought to increase with age (Kynard 1996). Shortnose sturgeon typically occur in the deepest parts of rivers or estuaries where suitable oxygen

and salin ity values are present (Gilbert 1989).

Status and Trends of Shortnose Sturgeon Rangewide Shortnose sturgeon were listed as endangered on March 11, 1967 (32 FR 4001), and the species remained on the endangered species list with the enactment of the ESA i n 1973. Although the original listing notice did not cite reasons for listing the species, a 1973 Resource Publication, issued by the US Department of the Interior, stated that shortnose sturgeon were “in peril...gone in

most of the rivers of its former ran ge [but] probably not as yet extinct” (USDOI 1973). Pollution and overfishing, including bycatch in the shad fishery, were listed as principal reasons for the species’ decline. In the late nineteenth and early twentieth centuries, shortnose sturgeon comm only were taken in a commercial fishery for the closely related and commercially valuable Atlantic sturgeon ( Acipenser oxyrinchus ). More than a century of extensive fishing for sturgeon contributed to the decline of shortnose sturgeon along the east coast . Heavy industrial development during the twentieth century in rivers inhabited by sturgeon impaired water quality and impeded these species’ recovery; possibly resulting in substantially reduced abundance of shortnose sturgeon populations within portions of the species’ ranges (e.g., southernmost rivers of the species range: Santilla, St. Marys and St. Johns Rivers). A shortnose sturgeon recovery plan was published in December 1998 to promote the conservation and recovery of the species (see NMFS 1998). Shortnose sturgeon are
listed as “vulnerable” on the IUCN Red List.

Although shortnose sturgeon are listed as endangered range

- wide, in the final recovery plan NMFS54

recognized 19 separate populations occurring throughout the range of the species. The se populations are in New Brunswick Canada (1); Maine (2); Massachusetts (1); Connecticut (1); New York (1); New Jersey/Delaware (1); Maryland and Virginia (1); North Carolina (1); South Carolina (4); Georgia (4); and Florida (2). NMFS has not formally re cognized distinct population segments (DPS) 8 of shortnose sturgeon under the ESA. Although genetic information within and among shortnose sturgeon occurring in different river systems is largely unknown, life history studies indicate that shortnose sturge on populations from different river systems are substantially reproductively isolated (Kynard 1997) and, therefore, should be considered discrete. The 1998 Recovery Plan indicates that while genetic information may reveal that interbreeding does not occur between rivers that drain into a common estuary, at this time, such river systems are considered a single population compromised of breeding subpopulations (NMFS 1998).

Studies conducted since the issuance of the Recovery Plan have provided evidence th at suggests that years of isolation between populations of shortnose sturgeon have led to morphological and genetic variation. Walsh et al. (2001) examined morphological and genetic variation of shortnose sturgeon in three rivers (Kennebec, Androscoggin, and Hudson). The study found that the Hudson River shortnose sturgeon population differed markedly from the other two rivers for most morphological features (total length, fork length, head and snout length, mouth width, interorbital
width and dorsal scut e count, left lateral scute count, right ventral scute count). Significant differences were found between fish from Androscoggin and Kennebec rivers for interorbital width and lateral scute counts which suggests that even though the Androscoggin and Kenne bec rivers drain into a common estuary, these rivers support largely discrete populations of shortnose sturgeon. The study also found significant genetic differences among all three populations indicating substantial reproductive isolation among them and that the observed morphological differences may be partly or wholly genetic.

Grunwald et al. (2002) examined mitochondrial DNA (mtDNA) from shortnose sturgeon in eleven river populations. The analysis demonstrated that all shortnose sturgeon population s examined showed moderate to high levels of genetic diversity as measured by haplotypic diversity indices. The limited sharing of haplotypes and the high number of private haplotypes are indicative of high homing fidelity and low gene flow. The research ers determined that glaciation in the Pleistocene Era was likely the most significant factor in shaping the phylogeographic pattern of mtDNA diversity and population structure of shortnose sturgeon. The Northern glaciated region extended

south to the Huds on River while the southern non

- glaciated region begins with the Delaware River. There is a high prevalence of haplotypes restricted to either of these two regions and relatively few are shared; this represents a historical subdivision that is tied to an important geological phenomenon that reflects historical isolation. Analyses of haplotype frequencies at the level of individual rivers showed significant differences among all systems in which reproduction is known to occur. This implies that although h igher level genetic stock relationships exist (i.e., southern vs.

8 The definition of species under the ESA includes any subspecies of fish, wildlife, or plants, and any distin ct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. To be considered a DPS, a population segment must m eet two criteria under NMFS policy. First, it must be discrete, or separated, from other populations of it s species or subspecies. Second, it must be significant, or essential, to the long

- term conservation status of its species or subspecies. This formal legal procedure to designate DPSs for shortnose sturgeon has not been undertaken.55

northern and other regional subdivisions), shortnose sturgeon appear to be discrete stocks, and low gene flow exists between the majority of populations.

Waldman et al. (2002) also conduc ted mtDNA analysis on shortnose sturgeon from 11 river systems and identified 29 haplotypes. Of these haplotypes, 11 were unique to northern, glaciated systems and 13 were unique to the southern non

- glaciated systems. Only 5 were shared between them. Th is analysis suggests that shortnose sturgeon show high structuring and discreteness and that low gene flow rates indicated strong homing fidelity.

Wirgin et al. (2005), also conducted mtDNA analysis on shortnose sturgeon from 12 rivers (St. John, Kennebe c, Androscoggin, Upper Connecticut, Lower Connecticut, Hudson, Delaware, Chesapeake Bay, Cooper, Peedee, Savannah, Ogeechee and Altamaha). This analysis suggested that most population segments are independent and that genetic variation among groups was hi gh.

The best available information demonstrates differences in life history and habitat preferences between northern and southern river systems and given the species’ anadromous breeding habits, the rare occurrence of migration between river systems, an d the documented genetic differences between river populations, it is unlikely that populations in adjacent river systems interbreed with any regularity. This likely accounts for the failure of shortnose sturgeon to repopulate river systems
from which the y have been extirpated, despite the geographic closeness of persisting populations. This characteristic of shortnose sturgeon also complicates recovery and persistence of this species in the future because, if a river population is extirpated in the futur e, it is unlikely that this river will be recolonized. Consequently, this Opinion will treat the nineteen separate populations of shortnose sturgeon as subpopulations (one of which occurs in the action area) for the purposes of this analysis.

Historicall y, shortnose sturgeon are believed to have inhabited nearly all major rivers and estuaries along nearly the entire east coast of North America. The range extended from the St John River in New Brunswick, Canada to the Indian River in Florida. Today, only 19 populations remain ranging from the St. Johns River, Florida (possibly extirpated from this system) to the Saint John River in New Brunswick, Canada. Shortnose sturgeon are large, long lived fish species. The present range of shortnose sturgeon is di sjunct, with northern populations separated from southern populations by
a distance of about 400 km. Population sizes vary across the species’ range

. From available estimates, the smallest populations occur in the Cape Fear (~8 adults; Moser and Ross 1 995) in the south and Merrimack and Penobscot rivers in the north (~ several hundred to several thousand adults depending on population estimates used; M. Kieffer, United States Geological Survey, personal communication; Dionne 2010), while the largest po pulations are found in the Saint John (~18, 000; Dadswell 1979) and Hudson Rivers (~61,000; Bain et al. 1998)

. As indicated in Kynard 1996, adult abundance is less than the minimum estimated viable population abundance of 1000 adults for 5 of 11 surveyed northern populations and all natural southern populations. Kynard 1996 indicates that all aspects of the species’ life history indicate that shortnose sturgeon should be abundant in most rivers. As such, the expected abundance of adults in northern and n orth

- central populations should be thousands to tens of thousands of adults. Expected abundance in southern rivers is uncertain, but large rivers should likely have thousands of adults. The only river systems likely supporting populations of these sizes are the St John, Hudson and possibly the Delaware and the Kennebec, making the continued success of shortnose sturgeon in these rivers critical to the species as a whole. While no reliable estimate of the size of either the total species or the shortnose56

sturgeon population in the Northeastern United States exists, it is clearly below the size that could be supported if the threats to shortnose sturgeon were removed.

Threats to shortnose sturgeon recovery The Shortnose Sturgeon Recovery Plan (NMFS 1998) identifies habitat degradation or loss (resulting, for example, from dams, bridge construction, channel dredging, and pollutant discharges) and mortality (resulting, for example, from impingement on cooling water intake screens, dredging

and incidental ca

pture in other fisheries) as principal threats to the species’ survival.

Several natural and anthropogenic factors continue to threaten the recovery of shortnose sturgeon. Shortnose sturgeon continue to be taken incidentally in fisheries along the east coast and are probably targeted by poachers throughout their range (Dadswell 1979; Dovel et al. 1992; Collins et

al

. 1996). Bridge construction and demolition projects may interfere with normal shortnose sturgeon migratory movements and disturb sturgeon concentration areas. Unless appropriate precautions are made, internal damage and/or death may result from blasting projects with powerful explosives. Hydroelectric dams may affect shortnose sturgeon by restricting habitat, altering river flows or temper atures necessary for successful spawning and/or migration and causing mortalities to fish that become entrained in turbines. Maintenance dredging of Federal navigation channels and other areas can adversely affect or jeopardize shortnose sturgeon populati ons. Hydraulic dredges can lethally take sturgeon by entraining sturgeon in dredge dragarms and impeller pumps. Mechanical dredges have also been documented to lethally take shortnose sturgeon. In addition to direct effects, dredging operations may also impact shortnose sturgeon by destroying benthic feeding areas, disrupting spawning migrations, and filling spawning habitat with resuspended fine sediments. Shortnose sturgeon are susceptible to impingement on cooling water intake screens at power plants . Electric power and nuclear power generating plants can affect sturgeon by impinging larger fish on cooling water intake screens and entraining larval fish. The operation of power plants can have unforeseen and extremely detrimental impacts to water qua lity which can affect shortnose sturgeon. For example, the St. Stephen Power Plant near Lake Moultrie, South Carolina was shut down for several days in June 1991 when large mats of aquatic plants entered the plant’s intake canal and clogged the cooling wa ter intake gates. Decomposing plant material in the tailrace canal coupled with the turbine shut down (allowing no flow of water) triggered a low dissolved oxygen water condition downstream and a subsequent fish kill. The South Carolina Wildlife and Mari ne Resources Department reported that twenty shortnose sturgeon were killed during this low dissolved oxygen event.

Contaminants, including toxic metals, polychlorinated aromatic hydrocarbons (PAHs), pesticides, and polychlorinated biphenyls (PCBs) can have substantial deleterious effects on aquatic life including production of acute lesions, growth retardation, and reproductive impairment (Cooper 1989; Sinderman 1994). Ultimately, toxins introduced to the water column become associated with

the benthos and can be particularly harmful to benthic organisms (Varanasi 1992) like sturgeon. Heavy metals and organochlorine compounds are known to accumulate in fat tissues of sturgeon, but their long term effects are not yet known (Ruelle and Henry 1992; Ruelle and Kennlyne 1993). Available data suggests that early life stages of fish are more susceptible to environmental and pollutant stress than older life stages (Rosenthal and Alderdice 1976).

Although there is scant information available on the levels of c ontaminants in shortnose sturgeon57

tissues, some research on other related species indicates that concern about the effects of contaminants on the health of sturgeon populations is warranted. Detectible levels of chlordane, DDE (1,1

- dichloro

- 2, 2

- bis(p

- chl orophenyl)ethylene), DDT (dichlorodiphenyl

- trichloroethane), and dieldrin, and elevated levels of PCBs, cadmium, mercury, and selenium were found in pallid sturgeon tissue from the Missouri River (Ruelle and Henry 1994). These compounds were found in high enough levels to suggest they may be causing reproductive failure and/or increased physiological stress (Ruelle and Henry 1994). In addition to compiling data on contaminant levels, Ruelle and Henry also determined that heavy metals and organochlorine co mpounds (i.e. PCBs) accumulate in fat tissues. Although the long term effects of the accumulation of contaminants in fat tissues is not yet known, some speculate that lipophilic toxins could be transferred to eggs and potentially inhibit egg viability. I n other fish species, reproductive impairment, reduced egg viability, and reduced survival of larval fish are associated with elevated levels of environmental contaminants including chlorinated hydrocarbons. A strong correlation that has been made between fish weight, fish fork length, and DDE concentration in pallid sturgeon livers indicates that DDE increases proportionally with fish size (NMFS 1998).

Contaminant analysis was conducted on two shortnose sturgeon from the Delaware River in the fall
of 200 2. Muscle, liver, and gonad tissue were analyzed for contaminants (ERC 2002). Sixteen metals, two semivolatile compounds, three organochlorine pesticides, one PCB Aroclor, as well as polychlorinated dibenzo

- p

- dioxins (PCDDs), and polychlorinated dibenzof urans (PCDFs) were detected in one or more of the tissue samples. Levels of aluminum, cadmium, PCDDs, PCDFs, PCBs, DDE (an organochlorine pesticide) were detected in the “adverse affect” range. It is of particular concern that of the above chemicals, PCD Ds, DDE, PCBs and cadmium, were detected as these have been identified as endocrine disrupting chemicals. Contaminant analysis conducted in 2003 on tissues from a shortnose sturgeon from the Kennebec River revealed the presence of fourteen metals, one semi volatile compound, one PCB Aroclor, Polychlorinated dibenzo

- p

- dioxins (PCDDs) and polychlorinated dibenzofurans (PCDFs) in one or more of the tissue samples. Of these chemicals, cadmium and zinc were detected at concentrations above an adverse effect

conc entration reported for fish in the literature (ERC 2003). While no directed studies of chemical contamination in shortnose sturgeon have been undertaken, it is evident that the heavy industrialization of the rivers where shortnose sturgeon are found is lik ely adversely affecting this species.

During summer months, especially in southern areas, shortnose sturgeon must cope with the physiological stress of water temperatures that may exceed 28oC. Flourney et al

. (1992) suspected that, during these periods, shortnose sturgeon congregate in river regions which support conditions that relieve physiological stress (i.e., in cool deep thermal refuges). In southern rivers where sturgeon movements have been tracked, sturgeon refrain from moving during warm water

c onditions and are often captured at release locations during these periods (Flourney et al

. 1992; Rogers and Weber 1994; Weber 1996). The loss and/or manipulation of these discrete refuge habitats may limit or be limiting population survival, especially in southern river systems.

Pulp mill, silvicultural, agricultural, and sewer discharges, as well as a combination of non

- point source discharges, which contain elevated temperatures or high biological demand, can reduce dissolved oxygen levels. Shortnose sturgeon are known to be adversely affected by dissolved oxygen levels below 5 mg/L. Shortnose sturgeon may be less tolerant of low dissolved oxygen58

levels in high ambient water temperatures and show signs of stress in water temperatures higher
than 28oC (Flourney et al. 1992). At these temperatures, concomitant low levels of dissolved oxygen may be lethal.

S tatus and Distribution of Shortnose Sturgeon in the Delaware River
Shortnose sturgeon occur in the Delaware River from the lower bay upstream to at least Lambertville, New Jersey (river mile 148). Tagging studies by O’Herron et al. (1993) found that the most heavily used portion of the river appears to be between river mile 118 below Burlington Island and river mile 137 at the Trenton Rapids. Has tings et al. (1987) used Floy T

- anchor tags in a
tag

- and

- recapture experiment from 1981 to 1984 to estimate the size of the Delaware River population in the Trenton to Florence reach. Population sizes by three estimation procedures ranged from 6,408 to 14 ,080 adult sturgeon. These estimates compare favorably with those based upon similar methods in similar river systems. The most recent population estimate for the Delaware River is 12, 047 (95% CI= 10,757

- 13,580) and is based on mark recapture data colle cted from January 1999 through March 2003 (ERC Inc. 2006). Comparisons between the population estimate by ERC Inc. and the earlier estimate by Hastings et al. (1987) of 12, 796 (95% CI=10,228

- 16,367) suggests that the population is stable, but not increas ing. This is the best available information on population size, but because the recruitment and migration rates between the population segment studied and the total population in the river are unknown, model assumptions may have been
violated.

In the D elaware River, movement to the spawning grounds occurs in early spring, typically in late

March 9 , with spawning occurring through early May. Movement to the spawning areas is triggered in part by water temperature and fish typically arrive at the spawning locations when water temperatures are between 8

- 9oC with most spawning occurring when water temperatures are between 10 and 18oC. Until recently, actual spawning (i.e., fertilized eggs or larvae) had not been documented in this area; however, the concent rated use of the Scudders Falls region in the spring by large numbers of mature male and female shortnose sturgeon indicated that the area between Scudders Falls and the Trenton rapids (rkm223

- 214) is the major spawning area, though shortnose
sturgeon egg s were collected upstream of Titusville, NJ (rkm 229) in spring 2008 (O’Herron et al. 1993; ERC 2009). The same area was identified as a likely spawning area based on the collection of two ripe females in the spring of 1965 (Hoff 1965). The capture of ea rly life stages (eggs and larvae) in this region in the spring of 2008 confirms that this area of the river is used for spawning and as a nursery area (ERC 2009).During the spawning period males remain on the spawning grounds for approximately a week while females only stay for a few days (O’Herron and Hastings 1985). After spawning, which typically ceases by the time water temperatures reach 18oC, shortnose sturgeon move rapidly downstream to the Philadelphia area.

Shortnose sturgeon eggs generally hat ch after approximately 9

- 12 days (Buckley and Kynard 1981).

9 Based on US Geologic al Survey (USGS) water temperature data for the Delaware River at the Trenton gage (USGS gage 01463500; the site closest to the Scudders Falls area), for the period 2003

- 2009, mean daily water temperature reached 8°C sometime between March 26 (2006) and Ap ril 21 (2007), with temperatures typically reaching 8°C in the last few days of March. During this period, mean water temperatures at Trenton reached 10°C between March 28 (2004) and April 22 (2007) and 15oC between April 15 (2006) and May 4 (2007). Ther e is typically a three to four week period with mean daily temperatures between 8 and 15°C.59

The larvae are photonegative, remaining on the bottom for several days. Buckley and Kynard (1981) found week old larvae to be photonegative and form aggregations with other larvae in

concealment . Larvae are expected to begin swimming downstream at 9

- 14 days old (Richmond and Kynard 1995). Larvae are expected to be less than 20mm TL at this time (Richmond and Kynard 1995). This initial downstream migration generally lasts two to three days (Ric hmond and Kynard 1995). Studies (Kynard and Horgan 2002) suggest that larvae move approximately 7.5km/day during this initial 2 to 3 day migration. Laboratory studies indicate that young sturgeon move
downstream in a 2

- step migration: the initial 2

- 3 day migration followed by a residency period of the Young of the Year (YOY), then a resumption of migration by yearlings in the second summer of life (Buckley and Kynard 1981).

No studies have been conducted on juveniles in the Delaware River. As shortnos e sturgeon demonstrate nearly identical migration patterns in all rivers, it is likely that juveniles in the Delaware River exhibit similar migration patterns to sturgeon in other river systems. As such, it is likely that yearlings are concentrated in the upper Delaware River above Philadelphia.

As noted above, due to limited information on juvenile shortnose sturgeon, it is difficult to ascertain their distribution and nursery habitat (O’Herron 2000, pers. comm.). Sub

- adults are typically

described a s age one or older and occupy similar spatio

- temporal patterns and habitat

- use as adults (Kynard 1997). In these systems, juveniles moved back and forth in the low salinity portion of the salt wedge during summer. In the Delaware River the oligohaline/fr esh interface can range from as far south as Wilmington, Delaware, north to Philadelphia, Pennsylvania, depending upon meteorological conditions such as excessive rainfall or drought. As a result, it is possible that in the Delaware River, juveniles could range from Artificial Island (river mile 54) to the Schuylkill River (river mile 92) (O’Herron 2000, pers. comm.). The distribution of juveniles in the river is likely highly influenced by flow and salinity. In years of high flow (for example, due to ex cessive rains or a significant spring runoff), the salt wedge will be pushed seaward and the low salinity reaches preferred by juveniles will extend further downriver. In these years, shortnose sturgeon juveniles are likely to be found further downstream in the summer months. In years of low flow, the salt wedge will be higher in the river and in these years juveniles are likely to be concentrated further
upstream.

O’Herron believes that if juveniles are present within this range they would likely aggr egate closer to the downstream boundary in the winter when freshwater input is normally greater (O’Herron 2000, pers. comm.). Research in other river systems indicates that juveniles are typically found over silt and sand/mud substrates in deep water of 1 0

- 20m. Juveniles feed indiscriminately, typical prey items found in stomach contents include aquatic insects, isopods, and amphipods along with large amounts of mud, stones, and plant material (Dadswell 1979, Carlson and Simpson 1987, Bain 1997). Juvenil e sturgeon primarily feed in 10 to 20 meter deep river channels, over sand

- mud or gravel

- mud bottoms (Pottle and Dadswell 1979). However, little is known about the specific feeding habits of juvenile shortnose sturgeon in the Delaware River.

As noted abo ve, after spawning, adult shortnose sturgeon migrate rapidly downstream to the Philadelphia area (RM 100). After adult sturgeon migrate to the area around Philadelphia, many adults return upriver to between river mile 127 and 134 within a few weeks, while others gradually move to the same area over the course of the summer (O’Herron 1993). By the time water60

temperatures have reached 10°C, typically by mid

- November 10 , adult sturgeon have returned to the overwintering grounds in the Roebling (rkm 199), Borde ntown (rkm 207), or Trenton reaches (rkm 214). These patterns are generally supported by the movement of radio

- tagged fish in the region between river mile 125 and river mile 148 as presented by Brundage (1986). Based on water temperature data collecte d at the USGS gage at Philadelphia, in general, shortnose sturgeon are expected to be at the overwintering grounds between early December and March. Adult sturgeon overwinter in dense sedentary aggregations in the upper tidal reaches of the Delaware betwe en river mile 118 and 131. The areas around Duck Island and Newbold Island seem to be regions of intense overwintering concentrations. However, unlike sturgeon in other river systems, shortnose sturgeon in the Delaware do not appear to remain as stationa ry during overwintering periods. Overwintering fish have been found to be generally active, appearing at the surface and even breaching through the skim ice (O’Herron 1993). Due to the relatively active nature of these fish, the use of the river during t he winter is difficult to predict. However, O’Herron et al. (1993) found that the typical overwintering movements are fairly localized and sturgeon appear to remain within 1.24 river miles of the aggregation site (O’Herron and Able 1986). Investigations with video equipment by the ACOE in March 2005 (Versar 2006) documented two sturgeon of unknown species at Marcus Hook and 1 sturgeon of unknown species at Tinicum. Gillnetting in these same areas caught only one Atlantic sturgeon and no shortnose sturgeo n. Video surveys of the known overwintering area near Newbold documented 61 shortnose sturgeon in approximately 1/3 of the survey effort. This study supports the conclusion that the vast majority of shortnose sturgeon overwinter near Duck and
Newbold Isl and but that a limited number of shortnose sturgeon occur in other downstream areas, including Marcus Hook, during the winter months. Preliminary tracking studies of juveniles indicate that the entire lower Delaware River from Philadelphia (rkm 161) to be low Artificial Island (rkm 79) may be utilized as an overwintering area by juvenile shortnose sturgeon (ERC 2007). There is also evidence that unlike adults, juveniles do not form dense aggregations and inst e ad are more dispersed in overwintering areas (E RC 2007).

Shortnose sturgeon appear to be strictly benthic feeders (Dadswell 1984). Adults eat mollusks, insects, crustaceans and small fish. Juveniles eat crustaceans and insects. While shortnose sturgeon forage on a variety of organisms, in the Del aware River, sturgeon primarily feed on the Asiatic river clam ( Corbicula manilensis ). Corbicula is widely distributed at all depths in the upper tidal Delaware River, but it is considerably more numerous in the shallows on both sides of the river than

in the navigation channels. Foraging is heaviest immediately after spawning in the spring and during the summer and fall, and lighter in the winter.

Historically, sturgeon were relatively rare below Philadelphia due to poor water quality. Since the
1990 s, the water quality in the Philadelphia area has improved leading to an increased use of the lower river by shortnose sturgeon. Few studies have been conducted to document the use of the river below Philadelphia by sturgeon. Brundage and Meadows (1982) have reported incidental captures in commercial gillnets in the lower Delaware. During a study focusing on Atlantic sturgeon, Shirey et al. (1999) captured 9 shortnose sturgeon in 1998. During the June through

10 Based on information from the USGS gage at Philadelphia (01467200) during the 2003

- 2008 time period, mean water temperatures reached 10°C between October 29 (20 05 and 2006) and November 14 (2003). In the spring, mean water temperature reached 10°C between April 2 (2006) and April 21 (2009).61

September study period, Atlantic and shortno se sturgeon were found to use the area on the west side of the shipping channel between Deep Water Point, New Jersey and the Delaware

- Pennsylvania line. The most frequently utilized areas within this section were off the northern and southern ends
of Cher ry Island Flats in the vicinity of the Marcus Hook Bar. A total of 25 shortnose sturgeon have been captured by Shirey in this region of the river from 1992

- 2004, with capture rates ranging from 0

- 10 fish per year (Shirey 2006). Shortnose sturgeon have also been documented on the trash racks of the Salem nuclear power plant in Salem, New Jersey at Artificial Island. The intakes for this plant are located in Delaware Bay. While the available information does not identify the area below Philadelphia as a concentration area for adult shortnose sturgeon, it is apparent that this species does occur in the lower Delaware River and upper Delaware Bay.

In May 2005, a one

- year survey for juvenile sturgeon in the Delaware River in the vicinity of the proposed C rown Landing LNG project was initiated. The objective of the survey was to obtain information on the occurrence and distribution of juvenile shortnose and Atlantic sturgeon near the proposed project site to be located near RM 78, approximately 20 miles so uth of Philadelphia. Sampling for juvenile sturgeon was performed using trammel nets and small mesh gill nets. The nets were set at three stations, one located adjacent to the project site, one at the upstream end of the Marcus Hook anchorage (approximat ely 2.7 miles upstream of the project site, at RM 81), and one near the upstream end of the Cherry Island Flats (at RM 74; approximately 3.8 miles downstream of the site). Nets were set within three depth ranges at each station: shallow (<10 feet at MLW)

, intermediate (10

- 20 feet at MLW) and deep (20

- 30+ feet at MLW). Each station/depth zone was sampled once per month. Nets were fished for at least 4 hours when water temperatures were less than 27°C and limited to 2 hours when water temperature was grea ter than 27°C. The sampling from April through August 2005 yielded 3,014 specimens of 22 species, including 3 juvenile shortnose sturgeon. Juvenile shortnose sturgeon were collected one each during the June, July and August sampling events. Two of the s hortnose sturgeon were collected at RM 78 and one was taken at the downstream sampling station at RM 74. Total length ranged from 311

- 367mm. During the September

– December sampling, one juvenile shortnose sturgeon was caught in September at
RM 78 and on e in November at the same location. One adult shortnose sturgeon was captured in October at RM 74. All of the shortnose sturgeon were collected in deep water sets (greater than 20 feet). These depths are consistent with the preferred depths for foraging shortnose sturgeon juveniles reported in the literature (NMFS 1998). The capture of an adult in the Cherry Island Flats area (RM 74) is consistent with the capture location of several adult sturgeon reported by Shirey et al. 1999 and Shirey 2006.

Br undage compiled a report presenting an analysis of telemetry data from receivers located at Torresdale RM 93, Tinicum RM 86, Bellevue RM 73 and New Castle RM 58 during April through December 2003. The objective of the study was to provide information on t he occurrence and movements of shortnose sturgeon in the general vicinity of the proposed Crown Landing LNG facility. A total of 60 shortnose sturgeon had been tagged with ultrasonic transmitters: 30 in fall 2002, 13 in early summer 2003 and 13 in fall 2 003. All fish tagged were adults tagged after collection in gill nets in the upper tidal Delaware River, between RM 126

- 132. Of the 60 tagged sturgeon, 39 (65%) were recorded at Torresdale, 22 (36.7%) were recorded at Tinicum, 16 (26.7%)
at Bellevue and 18 (30%) at New Castle. The number of tagged sturgeon recorded at each location varied with date of tagging. Of the 30 sturgeon tagged in fall 2002, 26 were recorded at Torresdale, 17 at Tinicum, 11 at Bellevue and 13 at New Castle. Only two of the 13 t agged in fall 2003 were62

recorded, both at Torresdale only. Brundage concludes that seasonal movement patterns and time available for dispersion likely account for this variation, particularly for the fish tagged in fall 2003.
Eleven of the 30 shortnose s turgeon tagged in fall 2002 and 5 of the 17 fish tagged in summer 2003 were recorded at all four locations. Some of the fish evidenced rapid movements from one location sequentially to the next in upstream and/or downstream direction. These periods of ra pid sequential movement tended to occur in the spring and fall, and were probably associated with movement to summer foraging and overwintering grounds, respectively. As a group, the shortnose sturgeon tagged in summer 2003 occurred a high percentage of t ime within the range of the Torresdale receiver. The report concludes that the metrics indicate that the Torresdale Range of the Delaware River is utilized by adult shortnose sturgeon more frequently and for greater durations than the other

three location s. Of the other locations, the New Castle Range appears to be the most utilized region. At all ranges, shortnose were detected throughout the study period, with most shortnose sturgeon detected in the project area between April and October. The report i ndicates that most adult shortnose sturgeon used the Torresdale to New Castle area as a short

- term migratory route rather than a long

- term concentration or foraging area. Adult sturgeon in this region of the river are highly mobile, and as noted above, li kely using the area as a migration route.

Information on the use of the river by juveniles is lacking and the information available is extremely limited (i.e., 5 captures). As evidenced by the Crown Landing study, juvenile shortnose sturgeon
have been documented between RM 81

- 74 from June

– November. Due to the limited geographic scope of this study, it is difficult to use these results to predict the occurrence of juvenile shortnose sturgeon throughout the action area. However, the April

– August tim e frame is when flows in the Delaware River are highest and the time when the action area is likely to experience the low salinity levels preferred by juveniles (FERC 2005). Beginning in August, flows decrease and the salt wedge begins to move upstream, w hich may preclude juveniles from occurring in the action area. Based on this information, it is likely that juvenile shortnose sturgeon are present in the action area at least during the April

– August time frame. The capture of juvenile shortnose sturge on in the RM 81

- 74 range in November of 2005 suggests that if water conditions are appropriate, juveniles may also be present in this area through the fall. While it is possible, based on habitat characteristics, that this
area of the river is used as an overwintering site for juveniles, there is currently no evidence to support this presumption.

In 2005, the ACOE conducted investigations to determine the use of the Marcus Hook region by sturgeon. Surveys for the presence of Atlantic and shortnose stur geon were conducted between March 4 and March 25, 2005 primarily using a Video Ray ® Explorer submersible remotely operated vehicle (ROV). The Video Ray ® was attached to a 1.0 x 1.0 x 1.5 meter aluminum sled which was
towed over channel bottom habitats beh ind a 25

- foot research boat. All images captured by the underwater camera were transmitted through the unit’s electronic tether and recorded on video cassettes. A total of 43 hours of bottom video were collected on 14 separate survey days. Twelve days o f survey work were conducted at the Marcus Hook, Eddystone, Chester, and Tinicum ranges, while two separate days of survey work were conducted up river near Trenton, New Jersey, at an area known to have an over wintering population of shortnose sturgeon.

The sled was generally towed on the bottom parallel to the centerline of the channel and into the current at 0.8 knots. Tow track logs were maintained throughout the survey and any fish seen on the ROV monitor was noted. Boat position during each video t ow was recorded every five minutes63

with the vessel’s Furuno GPS. The Sony digital recorder recorded a time stamp that could be matched with the geographic coordinates taken from the on

- board GPS. Digital tapes were reviewed in a darkened laboratory at no rmal or slow speed using a high quality 28

- inch television screen as a monitor. When a fish image was observed the tape was slowed and advanced frame by frame (30 images per second were recorded by the system). The time stamp where an individual
fish was observed was recorded by the technician. Each fish was identified to the lowest practical taxon (usually species) and counted. A staff fishery biologist reviewed questionable images and species identifications. Distances traveled by the sled between ti me stamps were calculated based on the GPS coordinates recorded in the field during each tow. Total fish counts between the recorded coordinates within a particular tow were converted to observed numbers per 100 meters of
tow track.

Limited 25

- foot otter trawling and gillnet sets were conducted initially to provide density data, and later to provide ground truth information on the fish species seen in the video recording. Large boulders and other snags that tore the net and hung up the vessel early on in the study prompted abandoning this effort for safety reasons given the high degree of tanker traffic in the lower
Delaware River. The trawl net was a 7.6

- m (25

- foot) experimental semi

- balloon otter trawl with

44.5

- mm stretch mesh body fitted with a 3.2

- m m stretch mesh liner in the cod end. Otter trawls were generally conducted for five minutes unless a snag or tanker traffic caused a reduction in tow time. Experimental gillnets were periodically deployed throughout the survey period in the Marcus

Hook a rea. One experimental gillnet was 91.4

- m in length and 3

- m deep and was composed of six

15.2

- m panels of varying mesh size. Of the six panels in each net, two panels were 50.8

- mm stretch mesh, 2 panels were 101.6

- mm stretch mesh and two panels were 152.4

- mm stretch mesh. Another gillnet was 100 m in length and consisted of four 25 x 2

- m panels of 2.5

- 10.2

- cm stretched monofilament mesh in 2.5 cm increments. Gill nets were generally set an hour before slack high or
low water and allowed to fish for two h ours as the nets had to be retrieved before maximum
currents were reached.

Turbidity in the Marcus Hook region of the Delaware River limited visibility to about 18 inches in front of the camera. However, despite the reduced visibility, several different fish species were recorded by the system including sturgeon. In general, fish that encountered the sled between the leading edge of the sled runners were relatively easy to distinguish. The major fish species seen in the video images were confirmed by th e trawl and gillnet samples. In the Marcus Hook project area, a total of 39 survey miles of bottom habitat were recorded in twelve separate survey days. Eight different species were observed on the tapes from a total of 411 fish encountered by the

camera . White perch, unidentified catfish, and unidentified shiner were the most common taxa observed. Three unidentified sturgeon were seen on the tapes, two in the Marcus Hook Range, and one in the Tinicum Range. Although it could not be determined if these sturgeon were Atlantic or shortnose, gillnetting in the Marcus Hook anchorage produced one juvenile Atlantic sturgeon that was 396 mm in total length, 342 mm in fork length, and weighed 250 g.

Water clarity in the Trenton survey area was much greater (ab out 6 feet ahead of the camera) and large numbers of shortnose sturgeon were seen in the video recordings. In a total of 7.9 survey miles completed in two separate days of bottom imaging, 61 shortnose sturgeons were observed. To provide a comparative mea sure of project area density (where visibility was limited) to up river densities (where visibility was greater), each of the 61 sturgeon images were classified as to64

whether the individual fish was observed between the sled runners or whether they were se en ahead of the sled. Real time play backs of video recordings in the upriver sites indicated that the sturgeon did not react to the approaching sled until the cross bar directly in front of the camera was nearly upon it. Thirty of the 61 upstream sturge on images were captured when the individual fish was between the runners. Using this criterion, approximately 10 times more sturgeon were encountered in the upriver area relative to the project site near Marcus Hook where three sturgeons were
observed. U sing the number of sturgeon observed per 100 meters of bottom surveyed, the relative sturgeon density in the project area was several orders of magnitude less than those observed in the Trenton area. As calculated in the report, the relative density of un identified sturgeon in the Marcus Hook area was 0.005 fish per 100 meters while the densities of shortnose sturgeon between the sled runners in the upriver area was 0.235 fish per 100 meters.

The results of the video sled survey in the Marcus Hook project area confirmed that sturgeons are using the area in the winter months. However, sturgeon relative densities in the project area were much lower than those observed near Trenton, New Jersey, even when the upriver counts were adjusted for the higher visibi lity (i.e., between runner sturgeon counts). The sturgeons seen near Trenton were very much concentrated in several large aggregations, which were surveyed in multiple passes on the two sampling dates devoted to this area. The lack of avoidance of the

ap proaching sled seen in the upriver video recordings where water clarity was good suggests that little to no avoidance of the sled occurred in the low visibility downriver project area. Video surveys in the downriver project area did not encounter large ag gregations of sturgeon as was observed in the upstream survey area despite having five times more sampling effort than the upstream area. This suggests that sturgeons that do occur in the Marcus Hook area during the winter are more dispersed and that the overall number of shortnose sturgeon occurring in this area
in the winter months is low.

4. 7 Status of Atlantic sturgeon The section below describes the Atlantic sturgeon listing, provides life history information that is
relevant to all DPSs of Atlant ic sturgeon and then provides information specific to the status of each DPS of Atlantic sturgeon. Below, we also provide a description of which Atlantic sturgeon DPSs likely occur in the action area and provide information on the use of the action area b y Atlantic
sturgeon.

The Atlantic sturgeon (

Acipenser oxyrinchus oxyrinchus ) is a subspecies of sturgeon distributed along the eastern coast of North America from Hamilton Inlet, Labrador, Canada to Cape Canaveral, Florida, USA (Scott and Scott, 1988; A SSRT, 2007; T. Savoy, CT DEP, pers. comm.). NMFS has delineated U.S. populations of Atlantic sturgeon into five DPSs 11 ( 77 FR 5880 and 77 FR 5914). These are: the Gulf of Maine, New York Bight, Chesapeake Bay, Carolina, and South Atlantic DPSs (see Figur e 3 ). The results of genetic studies suggest that natal origin influences the distribution of Atlantic sturgeon in the marine environment (Wirgin and King, 2011). However, genetic data as well as tracking and tagging data demonstrate sturgeon from each D PS and Canada

11 To be considered for listing under the ESA, a group of organisms must constitute a “species.” A “species” is defined

i n section 3 of the ESA to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”65

occur throughout the full range of the subspecies. Therefore, sturgeon originating from any of the 5 DPSs can be affected by threats in the marine, estuarine and riverine environment that occur far from natal spawning rivers.

On February 6, 2012, we published notice in the Federal Register that we were listing the New York Bight, Chesapeake Bay, Carolina, and South Atlantic DPSs as “endangered,” and the Gulf of Maine DPS as “threatened” (77 FR 5880 and 77 FR 5914). The effective date of th e listings was April 6, 2012. The DPSs do not include Atlantic sturgeon that are spawned in Canadian rivers. Therefore, Canadian spawned fish are not included in the listings.

As described below, individuals originating from the five listed DPSs may occ ur in the action area. Information general to all Atlantic sturgeon as well as information specific to each of the relevant DPSs, is provided below.

Figure 3 . Map Depicting the Boundaries of the five Atlantic sturgeon DPSs

4.7.1 Atlantic sturgeon life history Atlantic sturgeon are long lived (approximately 60 years), late maturing, estuarine dependent,66

anadromous 12 fish (Bigelow and Schroeder, 1953; Vladykov and Greeley 1963; Mangin, 1964;

Pikitch et al. , 2005; Dadswell, 2006; ASSRT, 2007).

The life history of Atlantic sturgeon can be divided up into five general categories as described in the table below (adapted from information presented in ASSRT 2007 ).

Age Class Size Description

Egg Fertilized or
unfertilized

Larvae Negative photo

tax ic, nourished by yolk sac

Young of Year (YOY) 0.3 grams <41 cm

TL Fish that are > 3

months and < one year; capable of capturing and consuming live

food

Sub

- adults >41 cm and <150

cm TL Fish that are at

least age 1 and are not sexually mature

Adults > 150 cm TL Sexually mature
fish

Table 4 . Descriptions of Atlantic sturgeon life history stages.

They are a relatively large fish, even amongst sturgeon species (Pikitch et al. , 2005). Atlantic sturgeons are bottom feeders that suck food into a ventral ly

- located protruding mouth (Bigelow and Schroeder, 1953). Four barbels in front of the mouth assist the sturgeon in locating prey (Bigelow and Schroeder, 1953). Diets of adult and migrant subadult Atlantic sturgeon include mollusks, gastropods, amphipod s, annelids, decapods, isopods, and fish such as sand lance (Bigelow and Schroeder, 1953; ASSRT, 2007; Guilbard et al. , 2007; Savoy, 2007). Juvenile Atlantic sturgeon feed on aquatic insects, insect larvae, and other invertebrates (Bigelow and Schroeder, 1953; ASSRT, 2007; Guilbard et al. , 2007).

Rate of maturation is affected by water temperature and gender. In general: (1) Atlantic sturgeon that originate from southern systems grow faster and mature sooner than Atlantic sturgeon that

12 Anadromous refers to a fish that is born in freshwater, spe nds most of its life in the sea, and returns to freshwater to spawn (NEFSC FAQ’s, available at http://www.nefsc.noaa.gov/faq/fishfaq1a.html , modified June 16, 2011)67

originate from m ore northern systems; (2) males grow faster than females; (3) fully mature females attain a larger size (i.e. length) than fully mature males; and (4) the length of Atlantic sturgeon caught since the mid

- late 20 th century have typically been less than 3 me ters (m) (Smith et al. , 1982;
Smith et al. , 1984; Smith, 1985; Scott and Scott, 1988; Young et al. , 1998; Collins et al. , 2000;

Caron et al. , 2002; Dadswell, 2006; ASSRT, 2007; Kahnle et al. , 2007; DFO, 2011 ). The largest recorded Atlantic sturgeon was a female captured in 1924 that measured approximately 4.26 m (Vladykov and Greeley, 1963). Dadswell (2006) reported seeing seven fish of comparable size in

the St. John River estuary from 1973 to 1995. Observations of large

- sized sturgeon are particularly important given that e gg production is correlated with age and body size ( Smith et al. , 1982; Van

Eenennaam et al. , 1996; Van Eenennaam and Doroshov, 1998; Dadswell, 2006). However, while females are prolific with egg production ranging from 400,000 to 4 million eggs per spawning year, females spawn at intervals of 2

- 5 years (Vladykov and Greeley, 1963; Smith et al. , 1982; Van

Eenennaam et al. , 1996; Van Eenennaam and Doroshov, 1998; Stevenson and Secor, 1999; Dadswell, 2006). Given spawning periodicity a nd a female’s relatively late age to maturity, the age at which 50 percent of the maximum lifetime egg production is achieved is estimated to be 29 years (Boreman, 1997). Males exhibit spawning periodicity of 1

- 5 years (Smith, 1985; Collins et al.

, 2000; Caron et al. , 2002). While long

- lived, Atlantic sturgeon are exposed to a multitude of threats prior to achieving maturation and have a limited number of spawning opportunities once mature.

Water temperature plays a primary role in triggering the timin g of spawning migrations (ASMFC, 2009). Spawning migrations generally occur during February

- March in southern systems, April

May in Mid

- Atlantic systems, and May

- July in Canadian systems (Murawski and Pacheco, 1977; Smith, 1985; Bain, 1997; Smith and Clug ston, 1997; Caron et al. , 2002). M ale sturgeon begin upstream spawning migrations when waters reach approximately 6° C (43° F) (Smith et al. , 1982; Dovel and Berggren, 1983; Smith, 1985; ASMFC, 2009), and remain on the spawning grounds throughout the spa wning season (Bain, 1997). Females begin spawning migrations when temperatures are closer to 12° C to 13° C (54° to 55° F) (Dovel and Berggren, 1983; Smith, 1985;
Collins et al. , 2000), make rapid spawning migrations upstream, and quickly depart following spawning (Bain, 1997).

The spawning areas in most U.S. rivers have not been well defined. However, the habitat characteristics of spawning areas have been identified based on historical accounts of where fisheries occurred, tracking and tagging studie s of spawning sturgeon, and physiological needs of early life stages. Spawning is believed to occur in flowing water between the salt front of estuaries and the fall line of large rivers, when and where optimal flows are 46

- 76 cm/s and depths are 3

- 27 m ( Borodin, 1925; Dees, 1961; Leland, 1968; Scott and Crossman, 1973; Crance, 1987; Shirey et al. 1999; Bain et al. , 2000 ; Collins et al. , 2000; Caron et al. 2002; Hatin et al. 2002; ASMFC,
2009 ). Sturgeon eggs are deposited on hard bottom substrate such as cobble, coarse sand, and

bedrock ( Dees, 1961; Scott and Crossman, 1973; Gilbert, 1989; Smith and Clugston, 1997; Bain et al. 2000; Collins et al. , 2000; Caron et al. , 2002; Hatin et al. , 2002 ; Mohler, 2003; ASMFC, 2009), and become adhesive shortly after f ertilization ( Murawski and Pacheco, 1977; Van den Avyle, 1983; Mohler, 2003) . Incubation time for the eggs increases as water temperature decreases (Mohler, 2003). At temperatures of 20° and 18° C, hatching occurs approximately 94 and 140 hours, respecti vely, after egg deposition (ASSRT, 2007).

Larval Atlantic sturgeon (i.e. less than 4 weeks old, with total lengths (TL) less than 30 mm; Van68

Eenennaam et al. 1996) are assumed to undertake a demersal existence and inhabit the same
riverine or estuarine areas where they were spawned ( Smith et al. , 1980; Bain et al. , 2000; Kynard and Horgan, 2002; ASMFC, 2009). Studies suggest that age

- 0 (i.e., young

- of

- year), age

- 1, and age

2 juvenile Atlantic sturgeon occur in low salinity waters of the natal estuary (H aley, 1999; Hatin et al. , 2007; McCord et al. , 2007; Munro et al. , 2007) while older fish are more salt tolerant and occur in higher salinity waters as well as low salinity waters (Collins et al. , 2000). Atlantic sturgeon

remain in the natal estuary for mo nths to years before emigrating to open ocean as subadults (Holland and Yelverton, 1973; Dovel and Berggen, 1983; Waldman et al. , 1996; Dadswell, 2006; ASSRT, 2007).

After emigration from the natal estuary, subadults and adults travel within the marine environment, typically in waters less than 50 m in depth, using coastal bays, sounds, and ocean waters (Vladykov and Greeley, 1963; Murawski and Pacheco, 1977; Dovel and Berggren, 1983; Smith, 1985; Collins and Smith, 1997; Welsh et al. , 2002; Savoy and Pa cileo, 2003; Stein et al. , 2004; USFWS, 2004; Laney et al. , 2007; Dunton et al. , 2010; Erickson et al. , 2011; Wirgin and King, 2011). Tracking and tagging studies reveal seasonal movements of Atlantic sturgeon along the coast. Satellite

tagged adult stur geon from the Hudson River concentrated in the southern part of the Mid

- Atlantic Bight at depths greater than 20 m during winter and spring, and in the northern portion of the Mid

Atlantic Bight at depths less than 20 m in summer and fall (Erickson et al.

, 2011). Shirey (Delaware Department of Fish and Wildlife, unpublished data reviewed in ASMFC, 2009) found a similar movement pattern for juvenile Atlantic sturgeon based on recaptures of fish originally tagged in the Delaware River. After leaving the Del aware River estuary during the fall, juvenile Atlantic sturgeon were recaptured by commercial fishermen in nearshore waters along the Atlantic coast as far south as Cape Hatteras, North Carolina from November through early March. In the spring, a portion of the tagged fish re

- entered the Delaware River estuary. However, many fish continued a northerly coastal migration through the Mid

- Atlantic as well as into southern New England waters where they were recovered throughout the summer months. Movements as far north as Maine were documented. A southerly coastal migration was apparent from tag returns reported in the fall. The majority of these tag returns were reported from relatively shallow near shore fisheries with few fish reported from waters in exce ss of 25 m (C. Shirey, Delaware Department of Fish and Wildlife, unpublished data reviewed in ASMFC, 2009). Areas w here migratory Atlantic sturgeon commonly aggregate include the Bay of Fundy (e.g., Minas and Cumberland Basins), Massachusetts Bay, Connect icut River estuary, Long Island Sound, New York Bight, Delaware Bay, Chesapeake Bay, and waters off of North Carolina from the Virginia/North Carolina border to Cape Hatteras at depths up to 24 m (Dovel and Berggren, 1983; Dadswell et al.

, 1984; Johnson et al. , 1997; Rochard et al. , 1997; Kynard et al. , 2000; Eyler et al. , 2004; Stein et al.

, 2004; Wehrell, 2005; Dadswell, 2006; ASSRT, 2007; Laney et al. , 2007). These sites may be used as foraging sites and/or thermal refuge.

4.7.2 Determination of DPS Composition in the Action Area As explained above, the range of all five DPSs overlaps and extends from Canada through Cape Canaveral, Florida. We have considered the best available information to determine from which
DPSs individuals in the action area are likely to have originated. Based on mixed

- stock analysis,

w e have determined that Atlantic sturgeon in the action area likely originate from the five DPSs at the following frequencies: Gulf of Maine 7 %; NYB 58 %; Chesapeake Bay 1 8 %; South Atlantic

17 % ; and Carolina 0.5%. These percentages are largely based on genetic sampling of individuals69

(n= 105 ) sampled in directed research targeting Atlantic sturgeon along the Delaware Coast, just south of Delaware Bay. This is the closest sampling effort (geogra phically) to the action area for which mixed stock analysis results are available. Because the genetic composition of the mixed stock changes with distance from the rivers of origin, it is appropriate to use mixed stock analysis

results from the nearest s ampling location. Therefore, this represents the best available information on the likely genetic makeup of individuals occurring in the action area. We also considered information on the genetic makeup of individuals captured within the Delaware River. However, we only have information on the assignment of these individuals to the river of origin and do not have a mixed stock analysis for these samples. The river assignments are very similar to the mixed stock analysis results for the Delaware Coastal sampling, with the Hudson/Delaware accounting for

55

- 61% of the fish, James River accounting for 17

- 18%, South Atlantic 17

- 18%, and Gulf of Maine

9

- 11%. The range in assignments considers the slightly different percentages calculated by treating each samp le individually versus treating each fish individually (some fish were captured in more than one of the years during the three year study). Carolina DPS origin fish have rarely been detected in samples taken in the Northeast and are not detected in either the Delaware Coast or in

river samples noted above. H owever, mixed stock analysis from one sampling effort ( i.e ., Long Island Sound, n=275), indicates that approximately 0.5% of the fish sampled were Carolina DPS origin . Additionally, 4% of Atlantic stu rgeon captured incidentally in commercial fisheries along the U.S. Atlantic coast north of Cape Hatteras and genetically analyzed belong to the Carolina DPS. No Carolina DPS fish have been documented in sampling carried out in the Delaware River or along the Delaware Coast. However, b ecause any Carolina origin sturgeon that were sampled in Long Island Sound c ould have swam through the action area on their way between Long Island Sound and their rivers of origin , it is reasonable to expect that 0.5% of the Atlantic sturgeon captured in the action area could originate from the Carolina DPS. The genetic assignments have a plus/minus 5% confidence interval; however, for purposes of section 7 consultation we have selected the reported values above, which approx imate the mid

- point of the range, as a reasonable indication of the likely genetic makeup of Atlantic sturgeon in the action area. These assignments and the data from which they are derived are described in detail in Damon

- Randall et al. (2012a).

4.7.3 D istribution and Abundance Atlantic sturgeon underwent significant range

- wide declines from historical abundance levels due to overfishing in the mid to late 19 th century when a caviar market was established (Scott and Crossman, 1973; Taub, 1990; Kennebec R iver Resource Management Plan, 1993; Smith and Clugston, 1997; Dadswell, 2006; ASSRT, 2007). Abundance of spawning

- aged females prior to this period of exploitation was predicted to be greater than 100,000 for the Delaware, and at least 10,000 females for other spawning stocks (Secor and Waldman, 1999; Secor, 2002). Historical records suggest that Atlantic sturgeon spawned in at least 35 rivers prior to this period. Currently, only 16 U.S. rivers are known to support spawning based on available evidence (i.e., presence of

young

- of

- year or gravid Atlantic sturgeon documented within the past 15 years) (ASSRT, 2007). While there may be other rivers supporting spawning for which definitive evidence has not been obtained (e.g., in the Penobscot and York River s), the number of rivers supporting spawning of Atlantic sturgeon are approximately half of what they were historically. In addition, only four rivers (Kennebec, Hudson, Delaware, James) are known to currently support spawning from Maine through Virginia where historical records support there used to be fifteen spawning rivers (ASSRT, 2007). Thus, there are substantial gaps in the range between Atlantic sturgeon spawning rivers amongst northern and mid

- Atlantic states which could make recolonization of ex tirpated70

populations more difficult.

There are no current, published population abundance estimates for any of the currently known spawning stocks. Therefore, there are no published abundance estimates for any of the five DPSs of Atlantic sturgeon. An estimate of 863 mature adults per year (596 males and 267 females) was calculated for the Hudson River based on fishery

- dependent data collected from 1985

- 1995 (Kahnle
et al. , 2007). An estimate of 343 spawning adults per year is available for the Altama ha River, GA, based on fishery

- independent data collected in 2004 and 2005 (Schueller and Peterson, 2006). Using the data collected from the Hudson River and Altamaha River to estimate the total number of Atlantic sturgeon in either subpopulation is not p ossible, since mature Atlantic sturgeon may not spawn every year ( Vladykov and Greeley, 1963; Smith, 1985; Van Eenennaam et al. , 1996; Stevenson and Secor, 1999; Collins et al. 2000; Caron et al. , 2002), the age structure of these populations is not well u nderstood, and stage to stage survival is unknown. In other words, the information that would allow us to take an estimate of annual spawning adults and expand that estimate to an estimate of the total number of individuals (e.g., yearlings, subadults, an d adults) in a population is lacking. The ASSRT presumed that the Hudson and Altamaha rivers had the most robust of the remaining U.S. Atlantic sturgeon spawning populations and concluded that the other U.S. spawning populations were likely less than 300 spawning adults per year (ASSRT, 2007).

It is possible, however, to estimate the total number of adults in some other rivers based on the
number of mature adults in the Hudson River. We have calculated an estimate of total mature adults and a proportio n of subadults for four of the five DPSs. The technique used to obtain these estimates is explained fully in Damon

- Randall 2012(b) and is summarized briefly below. We used this method because for these four DPSs, there are: (1) no total population estima tes available; (2) with the exception of the Hudson River, no estimates of the number of mature adults; and, (3) no information from directed population surveys which could be used to generate an estimate of the number of spawning adults, total adult popul ation or total DPS population.

Kahnle et al. (2007) estimated the number of total mature adults per year in the Hudson River using data from surveys in the 1980s to mid

- 1990s and based on mean harvest by sex divided by sex specific exploitation rate. While this data is over 20 years old, it is currently the best available data on the abundance of Hudson River origin Atlantic sturgeon. The sex ratio of spawners is estimated to be approximately 70% males and 30% females. As noted above, Kahnle et al. ( 2007) estimated a
mean annual number of mature adults at 596 males and 267 females.

We were able to use this estimate of the adult population in the Hudson River and the rate at which Atlantic sturgeon from the Hudson River are intercepted in certain No rtheast commercial fisheries 13
to estimate the number of adults in other spawning rivers. As noted above, the method used is summarized below and explained fully in Damon

- Randall 2012(b).

Given the geographic scope of commercial fisheries as well as the extensive marine migrations of Atlantic sturgeon, fish originating from nearly all spawning rivers are believed to be intercepted by

13 Bycatch information was obt ained from a report prepared by NMFS’ Northeast Fisheries Science Center (NEFSC 2012).71

commercial fisheries. An estimate of the number of Atlantic sturgeon captured in certain fisheries authorized by NMFS und er Federal FMPs in the Northeast is available (NEFSC 2011). This report indicates that based on observed interactions with Atlantic sturgeon in sink gillnet and otter trawl
fisheries from 2006

- 2010, on average 3,118 Atlantic sturgeon are captured in these fisheries each year. Information in the NEFOP database, indicates that 25% of captured Atlantic sturgeon are adults (determined as length greater than 150 cm) and 75% are subadults (determined as length less than 150cm). By applying the mixed stock gen etic analysis of individuals 14 sampled by the NEFOP and At Sea Monitoring Program (see Damon

- Randall et al. 2012a) to the bycatch estimate, we can determine an estimate of the number of Hudson River Atlantic sturgeon that are intercepted by these fisheries on an annual basis.

Given the number of observed Hudson River origin Atlantic sturgeon adults taken as bycatch, we can calculate what percentage of Hudson River origin Atlantic sturgeon mature adults these represent. This provides an interception rate. We assume that fish originating in any river in any DPS are equally likely to be intercepted by the observed commercial fisheries; therefore, we can use this interception rate to estimate the number of Atlantic sturgeon in the other rivers of origin. Thi s type of back calculation allows us to use the information we have for the Hudson River and fill in significant data gaps present for the other rivers. Using this method, we have estimated the total adult populations for three DPSs (Gulf of Maine, Chesap eake Bay, and South Atlantic) as follows. It is important to note that this method likely underestimates the total number of adults in the SA DPS because genetic analysis of individuals observed through the NEFOP program indicate that only individuals fr om the Savannah and Ogeechee are being captured in Northeast fisheries considered in the NEFSC bycatch report. Spawning is known to occur in other rivers in the SA DPS, including the Altamaha (estimate of 343 adult spawners per year).

We are not able to use this method to calculate an adult population estimate for the Carolina DPS. Based on the results of the genetic mixed stock analysis, fish originating from the Carolina DPS rarely appear in the NEFOP dataset and based on this, as well as genetics inf ormation on fish captured in other coastal sampling programs in the Northeast are assumed to be only rarely intercepted in Northeast fisheries.

Given the proportion of adults to subadults in the observer database (ratio of 1:3), we can also

estimate a nu mber of subadults originating from each DPS. However, this cannot be considered an estimate of the total number of subadults because it would only consider those subadults that are of a size vulnerable to capture in commercial sink gillnet and otter trawl gear in the marine environment and are present in the marine environment.

Currently, there are an estimated 343 spawning adults in the Altamaha and there are estimated to be less than 300 spawning adults (total of both sexes) in each of the other major river systems occupied by the South Atlantic DPS. Spawning is thought to occur in six rivers in the SA DPS. Adding these estimates together results in a total adult population estimated of less than 1,843 mature adults. Our fishery dependent estimate is 390 . This is likely an underestimate of the total number

14 Based on the best available information, we expect that 46% of Atlantic sturgeon captured in Northeast commercial fisheries originate from the New York Bight DPS and that 91% of those individuals originate from the Hudson River (see Damon

- Randall et al. 2012a and Wirgin and King 2011).72

of adults in the SA DPS because genetic analysis of individuals observed through the NEFOP program indicate that only individuals from the Savannah and Ogeechee are being captured in
Northeast fish eries considered in the NEFSC bycatch report. Because of this, it is difficult to compare these two estimates. It may be reasonable to consider the estimate of 390 adults to be an estimate of the number of adults in the Savannah and Ogeechee rivers only. This would be consistent with the assumption that there are fewer than 300 adults in each of these two rivers.

While we are unable to calculate a population estimate for the Carolina DPS using the above methodology, we do have an estimate of 1500 adult spawners/year (5 spawning rivers x 300 spawning adults per river) described in the Atlantic sturgeon status review report. As noted above, for the South Atlantic DPS, using this method, the estimated number of fish in the South Atlantic
DPS would be 180 0 spawning adults (6 spawning rivers x 300 spawning adults per river). Therefore, the Carolina DPS has approximately 17% less fish than the South Atlantic

DPS. Based on the methodology described above, the estimated number of mean annual mature

adults f or the South Atlantic DPS is 390 fish. Using the proportion of Carolina DPS fish to South Atlantic DPS fish, we estimate that the mean number of annual mature adults in the Carolina DPS is

324 (17% less than 390 ).

Table 5 : Summary of Calculated Populati on Estimates from NER Fisheries Dependent Data

DPS Estimated Adult Population Estimated Subadults of Size vulnerable to capture in
commercial fisheries

GOM 215 645 NYB (Hudson River and Delaware River) 95 1 2,85 3

CB 273 819

SA* 390 972

Carolina* 324 1, 170 *see note re. South Atlantic and Carolina population sizes in paragraphs above

.

4.7.4 Threats faced by Atlantic sturgeon throughout their range Atlantic sturgeon are susceptible to over exploitation given their life history characteristics (e.g.

, late maturity, dependence on a wide

- variety of habitats). Similar to other sturgeon species (Vladykov and Greeley, 1963; Pikitch et al. , 2005), Atlantic sturgeon experienced range

- wide declines from historical abundance levels due to overfishing (for ca viar and meat) and impacts to
habitat in the 19 th and 20 th centuries ( Taub, 1990; Smith and Clugston, 1997; Secor and Waldman, 1999).

Based on the best available information, NMFS has concluded that unintended catch of Atlantic sturgeon in fisheries, ve ssel strikes, poor water quality, water availability, dams, lack of regulatory mechanisms for protecting the fish, and dredging are the most significant threats to Atlantic sturgeon (77 FR 5880 and 77 FR 5914; February 6, 2012). While all of the threats a re not necessarily present in the same area at the same time, given that Atlantic sturgeon subadults and adults use ocean waters from the Labrador, Canada to Cape Canaveral, FL, as well as estuaries of large rivers along the U.S. East Coast, activities aff ecting these water bodies are likely to impact73

more than one Atlantic sturgeon DPS. In addition, given that Atlantic sturgeon depend on a variety of habitats, every life stage is likely affected by one or more of the identified threats.

An ASMFC inte rstate fishery management plan for sturgeon (Sturgeon FMP) was developed and implemented in 1990 (Taub, 1990). In 1998, the remaining Atlantic sturgeon fisheries in U.S. state waters were closed per Amendment 1 to the Sturgeon FMP. Complementary regulati ons were implemented by NMFS in 1999 that prohibit fishing for, harvesting, possessing or retaining Atlantic sturgeon or its parts in or from the Exclusive Economic Zone in the course of a commercial fishing activity.

Commercial fisheries for Atlantic s turgeon still exist in Canadian waters (DFO, 2011). Sturgeon belonging to one or more of the DPSs may be harvested in the Canadian fisheries. In particular, the Bay of Fundy fishery in the Saint John estuary may capture sturgeon of U.S. origin given that sturgeon from the Gulf of Maine and the New York Bight DPSs have been incidentally captured in other Bay of Fundy fisheries (DFO, 2010; Wirgin and King, 2011). Because Atlantic sturgeon are listed under Appendix II of the Convention on International Trad e in Endangered Species (CITES), the U.S. and Canada are currently working on a conservation strategy to address the potential for captures of U.S. fish in Canadian directed Atlantic sturgeon fisheries and of Canadian fish incidentally in U.S. commercial f isheries. At this time, there are no estimates of the number of individuals from any of the DPSs that are captured or killed in Canadian fisheries each year. Based on geographic distribution, most U.S. Atlantic sturgeon that are intercepted in Canadian fisheries are likely to originate from the Gulf of Maine DPS, with a smaller percentage from the New York Bight DPS.

Fisheries bycatch in U.S. waters is the primary threat faced by all 5 DPSs. At this time, we have an

estimate of the number of Atlanti c sturgeon captured and killed in sink gillnet and otter trawl fisheries authorized by Federal FMPs (NMFS NEFSC 2011) in the Northeast Region but do not
have a similar estimate for Southeast fisheries. We also do not have an estimate of the number of

Atla ntic sturgeon captured or killed in state fisheries. At this time, we are not able to quantify the effects of other significant threats (e.g., vessel strikes, poor water quality, water availability, dams, and dredging) in terms of habitat impacts or loss of individuals. While we have some information on the number of mortalities that have occurred in the past in association with certain activities (e.g., mortalities in the Delaware and James rivers that are thought to be due to vessel strikes), we

are not able to use those numbers to extrapolate effects throughout one or more DPS. This is because of (1) the small number of data points and, (2) lack of information on the percent of incidences that the observed mortalities represent.

As noted above, the NEFSC prepared an estimate of the number of encounters of Atlantic sturgeon in fisheries authorized by Northeast FMPs (NEFSC 2011). The analysis prepared by the NEFSC estimates that from 2006 through 2010 there were 2,250 to 3,862 encounters per year in observed gillnet and trawl fisheries, with an average of 3,118 encounters. Mortality rates in gillnet gear are approximately 20%. Mortality rates in otter trawl gear are believed to be lower at approximately
5%.

4.8 Gulf of Maine DPS of Atlantic st urgeon The Gulf of Maine DPS includes the following: all anadromous Atlantic sturgeons that are spawned74

in the watersheds from the Maine/Canadian border and, extending southward, all watersheds draining into the Gulf of Maine as far south as Chatham, MA. Within this range, Atlantic sturgeon historically spawned in the Androscoggin, Kennebec, Merrimack, Penobscot, and Sheepscot Rivers (ASSRT, 2007). Spawning still occurs in the Kennebec and Androscoggin Rivers, and it is possible

that it still occurs in t he Penobscot River as well. Spawning in the Androscoggin River was just recently confirmed by the Maine Department of Marine Resources when they captured a larval Atlantic sturgeon during the 2011 spawning season below the Brunswick Dam. There is no
eviden ce of recent spawning in the remaining rivers. In the 1800s, construction of the Essex Dam on the Merrimack River at river kilometer (rkm) 49 blocked access to 58 percent of Atlantic sturgeon habitat in the river (Oakley, 2003; ASSRT, 2007). However, the accessible portions of the Merrimack seem to be suitable habitat for Atlantic sturgeon spawning and rearing (i.e., nursery habitat) (Keiffer and Kynard, 1993). Therefore, the availability of spawning habitat does not appear

to be the reason for the lack of observed spawning in the Merrimack River. Studies are on

- going to determine whether Atlantic sturgeon are spawning in these rivers. Atlantic sturgeons that are spawned elsewhere continue to use habitats within all of these rivers as part of their over all marine range (ASSRT, 2007). The movement of subadult and adult sturgeon between rivers, including to and from the Kennebec River and the Penobscot River, demonstrates that coastal and marine migrations are key elements of Atlantic sturgeon life histor y for the Gulf of Maine DPS as well as likely throughout the entire range (ASSRT, 2007; Fernandes, et al. , 2010).

Bigelow and Schroeder (1953) surmised that Atlantic sturgeon likely spawned in Gulf of Maine Rivers in May

- July. More recent captures of Atl antic sturgeon in spawning condition within the Kennebec River suggest that spawning more likely occurs in June

- July (Squiers et al. , 1981; ASMFC, 1998; NMFS and USFWS, 1998). Evidence for the timing and location of Atlantic sturgeon spawning in the Kenne bec River includes: (1) the capture of five adult male Atlantic sturgeon in spawning condition (i.e., expressing milt) in July 1994 below the (former) Edwards Dam; (2) capture of 31 adult Atlantic sturgeon from June 15,1980, through July 26,1980, in a smal l commercial fishery directed at Atlantic sturgeon from the South Gardiner area (above Merrymeeting Bay) that included at least 4 ripe males and 1 ripe female captured on July 26,1980; and, (3) capture of nine adults during a gillnet survey conducted from 1977

- 1981, the majority of which were captured in July in the area from Merrymeeting Bay and upriver as far as Gardiner, ME (NMFS and USFWS, 1998; ASMFC 2007). The low salinity values for waters above Merrymeeting Bay are consistent with values found in o ther rivers where successful Atlantic sturgeon spawning is known to occur.

Several threats play a role in shaping the current status of Gulf of Maine DPS Atlantic sturgeon. Historical records provide evidence of commercial fisheries for Atlantic sturge on in the Kennebec and Androscoggin Rivers dating back to the 17 th century (Squiers et al. , 1979). In 1849, 160 tons of sturgeon was caught in the Kennebec River by local fishermen (Squiers et al. , 1979). Following the 1880's, the sturgeon fishery was al most non

- existent due to a collapse of the sturgeon stocks. All directed Atlantic sturgeon fishing as well as retention of Atlantic sturgeon by catch has been prohibited since 1998. Nevertheless, mortalities associated with bycatch in fisheries occurring in state and federal waters still occurs. In the marine range, Gulf of Maine DPS Atlantic sturgeon are incidentally captured in federal and state managed fisheries, reducing survivorship of subadult and adult Atlantic sturgeon (Stein et al. , 2004; ASMFC 2007). As explained above, we have estimates of the number of subadults and adults that are killed as a result of bycatch in fisheries authorized75

under Northeast FMPs. At this time, we are not able to quantify the impacts from other threats or

estimate t he number of individuals killed as a result of other anthropogenic threats. Habitat disturbance and direct mortality from anthropogenic sources are the primary concerns.

Riverine habitat may be impacted by dredging and other in

- water activities, distur bing spawning habitat and also altering the benthic forage base. Many rivers in the Gulf of Maine DPS have navigation channels that are maintained by dredging. Dredging outside of Federal channels and in

water construction occurs throughout the Gulf of M aine DPS. While some dredging projects operate with observers present to document fish mortalities, many do not. To date we have not received any reports of Atlantic sturgeon killed during dredging projects in the Gulf of Maine region; however, as noted above, not all projects are monitored for interactions with fish. At this time, we do not have any information to quantify the number of Atlantic sturgeon killed or disturbed during dredging or in

- water construction projects are also not able to quantify any effects

to habitat.

Connectivity is disrupted by the presence of dams on several rivers in the Gulf of Maine region, including the Penobscot and Merrimack Rivers. While there are also dams on the Kennebec, Androscoggin and Saco Rivers, these dams a re near the site of natural falls and likely represent the maximum upstream extent of sturgeon occurrence even if the dams were not present. Because no Atlantic sturgeon are known to occur upstream of any hydroelectric projects in the Gulf of Maine region , passage over hydroelectric dams or through hydroelectric turbines is not a source of injury or mortality in this area. While not expected to be killed or injured during passage at a dam, the extent that Atlantic sturgeon are affected by the existence of dams and their operations in the Gulf of Maine region is currently unknown. The extent that Atlantic sturgeon are affected by operations of dams in the Gulf of Maine region is currently unknown; however, the documentation of an Atlantic sturgeon larvae d ownstream of the Brunswick Dam in the Androscoggin River suggests that Atlantic sturgeon spawning may be occurring in the vicinity of at least that project and therefore, may be affected by project operations. The range of Atlantic sturgeon in the Penobsc ot River is limited by the presence of the Veazie and Great Works Dams. Together these dams prevent Atlantic sturgeon from accessing approximately 29 km of habitat, including the presumed historical spawning habitat located downstream of Milford Falls, th e site of the Milford Dam. While removal of the Veazie and Great Works Dams is anticipated to occur in the near future, the presence of these dams is currently preventing access to significant habitats within the Penobscot River. While Atlantic sturgeon are known to occur in the Penobscot River, it is unknown if spawning is currently occurring or whether the presence of the Veazie and Great Works Dams affects the likelihood of spawning occurring in this river. The Essex Dam on the Merrimack River

blocks access to approximately 58% of historically accessible habitat in this river. Atlantic sturgeon occur in the Merrimack River but spawning has not been documented. Like the Penobscot, it is unknown how the Essex Dam affects the likelihood of spawning occu rring in this river.

Gulf of Maine DPS Atlantic sturgeon may also be affected by degraded water quality. In general, water quality has improved in the Gulf of Maine over the past decades (Lichter et al. 2006; EPA, 2008). Many rivers in Maine, includin g the Androscoggin River, were heavily polluted in the past from industrial discharges from pulp and paper mills. While water quality has improved and most discharges are limited through regulations, many pollutants persist in the benthic environment. Th is can be particularly problematic if pollutants are present on spawning and nursery grounds as7 6

developing eggs and larvae are particularly susceptible to exposure to contaminants.

There are no empirical abundance estimates for the Gulf of Maine DPS. T he Atlantic sturgeon SRT (2007) presumed that the Gulf of Maine DPS was comprised of less than 300 spawning adults per year, based on abundance estimates for the Hudson and Altamaha River riverine populations of Atlantic sturgeon. Surveys of the Kennebec River over two time periods, 1977

- 1981 and 1998

- 2000, resulted in the capture of nine adult Atlantic sturgeon (Squiers, 2004). However, since the surveys were primarily directed at capture of shortnose sturgeon, the capture gear used may not
have been sel ective for the larger

- sized, adult Atlantic sturgeon; several hundred subadult Atlantic sturgeon were caught in the Kennebec River during these studies. As explained above, we have estimated that there is an annual mean of 166 mature adult Atlantic sturge on in the GOM DPS.

Summary of the Gulf of Maine DPS Spawning for the Gulf of Maine DPS is known to occur in two rivers (Kennebec and Androscoggin) and possibly in a third. Spawning may be occurring in other rivers, such as the Sheepscot or Penobscot, but has not been confirmed. There are indications of increasing abundance of Atlantic sturgeon belonging to the Gulf of Maine DPS. Atlantic sturgeon continue to be present in the Kennebec River; in addition, they are captured in directed research project s in the Penobscot River, and are observed in rivers where they were unknown to occur or had not been observed to occur for many years (e.g., the Saco, Presumpscot, and Charles rivers). These observations suggest that
abundance of the Gulf of Maine DPS of Atlantic sturgeon is sufficient such that recolonization to rivers historically suitable for spawning may be occurring. However, despite some positive signs, there is not enough information to establish a trend for this DPS.

Some of the impacts from t he threats that contributed to the decline of the Gulf of Maine DPS have been removed (e.g., directed fishing), or reduced as a result of improvements in water quality and removal of dams (e.g., the Edwards Dam on the Kennebec River in 1999). There are st rict regulations on the use of fishing gear in Maine state waters that incidentally catch sturgeon. In addition, there have been reductions in fishing effort in state and federal waters, which most likely would result in a reduction in bycatch mortality o f Atlantic sturgeon. A significant amount of fishing in the Gulf of Maine is conducted using trawl gear, which is known to have a much lower mortality rate for Atlantic sturgeon caught in the gear compared to sink gillnet gear (ASMFC, 2007). Atlantic stu rgeon from the GOM DPS are not commonly taken as bycatch in areas south of Chatham, MA, with only 8 percent (e.g., 7 of the 84 fish) of interactions observed in the Mid Atlantic/Carolina region being assigned to the Gulf of Maine DPS (Wirgin and King, 2011 ). Tagging results also indicate that Gulf of Maine DPS fish tend to remain within the waters of the Gulf of Maine and only occasionally venture to points south. However, data on Atlantic sturgeon incidentally caught in trawls and intertidal fish weirs f ished in the Minas Basin area of the Bay of Fundy

. (Canada) indicate that approximately 35 percent originated from the Gulf of Maine DPS (Wirgin et al. , in draft).

As noted previously, studies have shown that in order to rebuild, Atlantic sturgeon can on ly sustain low levels of bycatch and other anthropogenic mortality (Boreman, 1997; ASMFC, 2007; Kahnle et al. , 2007; Brown and Murphy, 2010). NMFS has determined that the Gulf of Maine DPS is at risk of becoming endangered in the foreseeable future throug hout all of its range (i.e., is a threatened species) based on the following: (1) significant declines in population sizes and the protracted77

period during which sturgeon populations have been depressed; (2) the limited amount of current spawning; and, (3) the impacts and threats that have and will continue to affect recovery.

4. 9 New York Bight DPS of Atlantic sturgeon The New York Bight DPS includes the following: all anadromous Atlantic sturgeon spawned in the
watersheds that drain into coastal water s from Chatham, MA to the Delaware

- Maryland border on Fenwick Island. Within this range, Atlantic sturgeon historically spawned in the Connecticut, Delaware, Hudson, and Taunton Rivers (Murawski and Pacheco, 1977; Secor, 2002; ASSRT, 2007). Spawning still occurs in the Delaware and Hudson Rivers, but there is no recent evidence (within the last 15 years) of spawning in the Connecticut and Taunton Rivers (ASSRT, 2007). Atlantic sturgeon that are spawned elsewhere continue to use habitats within the Connectic ut and Taunton Rivers as part of their overall marine range (ASSRT, 2007; Savoy, 2007; Wirgin and King, 2011).

The abundance of the Hudson River Atlantic sturgeon riverine population prior to the onset of expanded exploitation in the 1800’s is unknown bu t, has been conservatively estimated at 10,000 adult females (Secor, 2002). Current abundance is likely at least one order of magnitude smaller than historical levels (Secor, 2002; ASSRT, 2007; Kahnle et al. , 2007). As described above, an

estimate of the m ean annual number of mature adults (863 total; 596 males and 267 females) was calculated for the Hudson River riverine population based on fishery

- dependent data collected from
1985

- 1995 (Kahnle et al. , 2007). Kahnle et al. (1998; 2007) also showed that th e level of fishing mortality from the Hudson River Atlantic sturgeon fishery during the period of 1985

- 1995 exceeded the estimated sustainable level of fishing mortality for the riverine population and may have led to
reduced recruitment. All available dat a on abundance of juvenile Atlantic sturgeon in the Hudson River Estuary indicate a substantial drop in production of young since the mid 1970's (Kahnle et al.

, 1998). A decline appeared to occur in the mid to late 1970's followed by a secondary drop in th e late 1980's (Kahnle et al. , 1998; Sweka et al. , 2007; ASMFC, 2010). Catch

- per

- unit

- effort data suggests that recruitment has remained depressed relative to catches of juvenile Atlantic sturgeon in the estuary during the mid

- late 1980’s (Sweka et al. , 200 7; ASMFC, 2010). In examining the CPUE
data from 1985

- 2007, there are significant fluctuations during this time. There appears to be a decline in the number of juveniles between the late 1980s and early 1990s and while the CPUE is generally higher in the 2 000s as compared to the 1990s, given the significant annual fluctuation it is difficult to discern any trend. Despite the CPUEs from 2000

- 2007 being generally higher than those
from 1990

- 1999, they are low compared to the late 1980s. There is currently no t enough information regarding any life stage to establish a trend for the Hudson River population.

There is no abundance estimate for the Delaware River population of Atlantic sturgeon. Harvest records from the 1800’s indicate that this was historically a large population with an estimated 180,000 adult females prior to 1890 (Secor and Waldman, 1999; Secor, 2002). Sampling in 2009 to
target young

- of

- the year (YOY) Atlantic sturgeon in the Delaware River (i.e., natal sturgeon) resulted in the capture of 34 YOY, ranging in size from 178 to 349 mm TL (Fisher, 2009) and the collection of 32 YOY Atlantic sturgeon in a separate study (Brundage and O’Herron in Calvo et al.

, 2010). Genetics information collected from 33 of the 2009 year class YOY indicates that at least 3 females successfully contributed to the 2009 year class (Fisher, 2011). Therefore, while the capture of YOY in 2009 provides evidence that successful spawning is still occurring in the Delaware River, the relatively low numbers suggest the exist ing riverine population is limited in size.78

Several threats play a role in shaping the current status and trends observed in the Delaware River and Estuary. In

- river threats include habitat disturbance from dredging, and impacts from historical pollution and impaired water quality. A dredged navigation channel extends from Trenton seaward through the tidal river (Brundage and O’Herron, 2009), and the river receives significant shipping

traffic. Vessel strikes have been identified as a threat in the Delawa re River; however, at this time we do not have information to quantify this threat or its impact to the population or the New York Bight DPS. Similar to the Hudson River, there is currently not enough information to determine a
trend for the Delaware River population.

Summary of the New York Bight DPS Atlantic sturgeon originating from the New York Bight DPS spawn in the Hudson and Delaware rivers. While genetic testing can differentiate between individuals originating from the Hudson or
Delaware river th e available information suggests that the straying rate is high between these rivers. There are no indications of increasing abundance for the New York Bight DPS (ASSRT, 2009; 2010). Some of the impact from the threats that contributed to the decline of th e New York Bight DPS have been removed (e.g., directed fishing) or reduced as a result of improvements in water quality since passage of the Clean Water Act (CWA). In addition, there have been reductions in fishing effort in state and federal waters, which may result in a reduction in bycatch mortality of Atlantic sturgeon. Nevertheless, areas with persistent, degraded water quality, habitat impacts from dredging, continued bycatch in state and federally

- managed fisheries, and vessel strikes remain signific ant threats to the New York Bight DPS.

In the marine range, New York Bight DPS Atlantic sturgeon are incidentally captured in federal and state managed fisheries, reducing survivorship of subadult and adult Atlantic sturgeon (Stein et al.

, 2004; ASMFC 20 07). As explained above, currently available estimates indicate that at least 4% of adults may be killed as a result of bycatch in fisheries authorized under Northeast FMPs. Based on mixed stock analysis results presented by Wirgin and King ( 2011), over 40 percent of the Atlantic sturgeon bycatch interactions in the Mid Atlantic Bight region were sturgeon from the New York Bight DPS. Individual

- based assignment and mixed stock analysis of samples collected from sturgeon captured in Canadian fisheries in t he Bay of Fundy indicated that approximately 1

- 2% were from the New York Bight DPS. At this time, we are not able to quantify the impacts from other threats or estimate the number of individuals killed as a result of other anthropogenic threats

.

Riverine habitat may be impacted by dredging and other in

- water activities, disturbing spawning habitat and also altering the benthic forage base. Both the Hudson and Delaware rivers have navigation channels that are maintained by dredging. Dredging is also used t o maintain channels in the nearshore marine environment. Dredging outside of Federal channels and in

- water construction occurs throughout the New York Bight region. While some dredging projects operate with observers present to document fish mortalities ma ny do not. We have reports of one Atlantic sturgeon entrained during hopper dredging operations in Ambrose Channel, New Jersey. At this time, we do not have any information to quantify the number of Atlantic sturgeon killed or disturbed during dredging or in

- water construction projects are also not able to quantify any effects
to habitat.

In the Hudson and Delaware Rivers, dams do not block access to historical habitat. The Holyoke79

Dam on the Connecticut River blocks further upstream passage; however, the extent that Atlantic sturgeon would historically have used habitat upstream of Holyoke is unknown. Connectivity may be disrupted by the presence of dams on several smaller rivers in the New York Bight region. Because no Atlantic sturgeon occur upstream of any hydroelectric projects in the New York Bight region, passage over hydroelectric dams or through hydroelectric turbines is not a source of injury or mortality in this area. The extent that Atlantic sturgeon are affected by operations of dams in the

New York Bight region is currently unknown.

New York Bight DPS Atlantic sturgeon may also be affected by degraded water quality. In general, water quality has improved in the Hudson and Delaware over the past decades (Lichter et al. 2006; EPA, 2008). Both t he Hudson and Delaware rivers, as well as other rivers in the New York Bight region, were heavily polluted in the past from industrial and sanitary sewer discharges. While water quality has improved and most discharges are limited through regulations, many pollutants persist in the benthic environment. This can be particularly problematic if pollutants are present on spawning and nursery grounds as developing eggs and larvae are particularly susceptible to exposure to contaminants.

Vessel strikes occur in the Delaware River. Twenty

- nine mortalities believed to be the result of vessel strikes were documented in the Delaware River from 2004 to 2008, and at least 13 of these fish were large adults. Given the time of year in which the fish were observed (predo minantly May through July, with two in August), it is likely that many of the adults were migrating through the river to the spawning grounds. Because we do not know the percent of total vessel strikes that the observed mortalities represent, we are not ab le to quantify the number of individuals likely killed as a result of vessel strikes in the New York Bight DPS.

Studies have shown that to rebuild, Atlantic sturgeon can only sustain low levels of anthropogenic mortality (Boreman, 1997; ASMFC, 2007; Kah nle et al. , 2007; Brown and Murphy, 2010). There are no empirical abundance estimates of the number of Atlantic sturgeon in the New York Bight

DPS. As explained above, we have estimated that there are an annual mean total of 950 mature adult Atlantic sturg eon in the NYB DPS. N MFS has determined that the New York Bight DPS is currently at risk of extinction due to: (1) precipitous declines in population sizes and the protracted period in which sturgeon populations have been depressed; (2) the limited amount of current spawning; and (3) the impacts and threats that have and will continue to affect population recovery.

4. 10 Chesapeake Bay DPS of Atlantic sturgeon The Chesapeake Bay DPS includes the following: all anadromous Atlantic sturgeons that are

spawne d in the watersheds that drain into the Chesapeake Bay and into coastal waters from the
Delaware

- Maryland border on Fenwick Island to Cape Henry, VA. Within this range, Atlantic sturgeon historically spawned in the Susquehanna, Potomac, James, York, Rappa hannock, and Nottoway Rivers (ASSRT, 2007). Based on the review by Oakley (2003), 100 percent of Atlantic sturgeon habitat is currently accessible in these rivers since most of the barriers to passage (i.e. dams) are located upriver of where spawning is e xpected to have historically occurred (ASSRT, 2007). Spawning still occurs in the James River, and the presence of juvenile and adult sturgeon in the York River suggests that spawning may occur there as well (Musick et al. , 1994; ASSRT, 2007; Greene, 2009 ). However, conclusive evidence of current spawning is only available for the James River. Atlantic sturgeon that are spawned elsewhere are known to use the Chesapeake Bay for80

other life functions, such as foraging and as juvenile nursery habitat prior t o entering the marine system as subadults (Vladykov and Greeley, 1963; ASSRT, 2007; Wirgin et al. , 2007; Grunwald et al. , 2008).

Age to maturity for Chesapeake Bay DPS Atlantic sturgeon is unknown. However, Atlantic sturgeon riverine populations exhi bit clinal variation with faster growth and earlier age to maturity for those that originate from southern waters, and slower growth and later age to maturity for those that originate from northern waters (75 FR 61872; October 6, 2010). Age at maturity is 5 to 19 years for Atlantic sturgeon originating from South Carolina rivers (Smith et al. , 1982) and 11 to 21 years for Atlantic sturgeon originating from the Hudson River (Young et al. , 1998). Therefore, age at maturity for Atlantic sturgeon of the Chesa peake Bay DPS likely falls within these values.

Several threats play a role in shaping the current status of Chesapeake Bay DPS Atlantic sturgeon. Historical records provide evidence of the large

- scale commercial exploitation of Atlantic sturgeon

from the James River and Chesapeake Bay in the 19 th century (Hildebrand and Schroeder, 1928; Vladykov and Greeley, 1963; ASMFC, 1998; Secor, 2002; Bushnoe et al. , 2005; ASSRT, 2007) as well as subsistence fishing and attempts at commercial fisheries as early as the 17 th century (Secor, 2002; Bushnoe et al. , 2005; ASSRT, 2007; Balazik et al. , 2010). Habitat disturbance caused by in

river work such as dredging for navigational purposes is thought to have reduced available spawning habitat in the James River ( Holt on and Walsh, 1995; Bushnoe et al. , 2005; ASSRT, 2007). At this time, we do not have information to quantify this loss of spawning habitat.

Decreased water quality also threatens Atlantic sturgeon of the Chesapeake Bay DPS, especially
since the Chesa peake Bay system is vulnerable to the effects of nutrient enrichment due to a relatively low tidal exchange and flushing rate, large surface to volume ratio, and strong stratification during the spring and summer months (Pyzik et al. , 2004; ASMFC, 1998; AS SRT, 2007; EPA, 2008). These conditions contribute to reductions in dissolved oxygen levels throughout the Bay. The availability of nursery habitat, in particular, may be limited given the recurrent hypoxia (low dissolved oxygen) conditions within the Ba y (Niklitschek and Secor, 2005; 2010). At this time we do not have sufficient information to quantify the extent that degraded water quality effects habitat or individuals in the James River or throughout the Chesapeake Bay.

Vessel strikes have been ob served in the James River (ASSRT, 2007). Eleven Atlantic sturgeon were reported to have been struck by vessels from 2005 through 2007. Several of these were mature individuals. Because we do not know the percent of total vessel strikes that the observed mortalities represent, we are not able to quantify the number of individuals likely killed as a result of vessel strikes in the New York Bight DPS.

In the marine and coastal range of the Chesapeake Bay DPS from Canada to Florida, fisheries bycatch in f

ederally and state managed fisheries poses a threat to the DPS, reducing survivorship of subadults and adults and potentially causing an overall reduction in the spawning population (Stein
et al. , 2004; ASMFC, 2007; ASSRT, 2007).

Summary of the Chesapea ke Bay DPS Spawning for the Chesapeake Bay DPS is known to occur in only the James River. Spawning may be occurring in other rivers, such as the York, but has not been confirmed. There are anecdotal81

reports of increased sightings and captures of Atlantic sturgeon in the James River. However, this information has not been comprehensive enough to develop a population estimate for the James River or to provide sufficient evidence to confirm increased abundance. Some of the impact from

the threats that faci litated the decline of the Chesapeake Bay DPS have been removed (e.g., directed fishing) or reduced as a result of improvements in water quality since passage of the Clean Water Act (CWA). As explained above, we have estimated that there is an annual mean of 329 mature adult Atlantic sturgeon in the Chesapeake Bay DPS. We do not currently have enough information about any life stage to establish a trend for this DPS.

Areas with persistent, degraded water quality, habitat impacts from dredging, conti nued bycatch in U.S. state and federally

- managed fisheries, Canadian fisheries and vessel strikes remain significant threats to the Chesapeake Bay DPS of Atlantic sturgeon. Studies have shown that Atlantic sturgeon can only sustain low levels of bycatch m ortality (Boreman, 1997; ASMFC, 2007; Kahnle et al.

, 2007). The Chesapeake Bay DPS is currently at risk of extinction given (1) precipitous declines in population sizes and the protracted period in which sturgeon populations have been depressed; (2)

the l imited amount of current spawning; and, (3) the impacts and threats that have and will continue to affect the potential for population recovery.

4.11 Carolina DPS of Atlantic sturgeon
The Carolina DPS includes all Atlantic sturgeon that spawn or are sp awned in the watersheds (including all rivers and tributaries) from Albemarle Sound southward along the southern Virginia, North Carolina, and South Carolina coastal areas to Charleston Harbor. The marine range of Atlantic sturgeon from the Carolina DPS e xtends from the Hamilton Inlet, Labrador, Canada, to Cape Canaveral, Florida. Sturgeon are commonly captured 40 miles offshore (D. Fox, DSU, pers. comm.). Records providing fishery bycatch data by depth show the vast majority of Atlantic sturgeon bycatch via gillnets is observed in waters less than 50 meters deep (Stein et al. 2004, ASMFC 2007), but Atlantic sturgeon are recorded as bycatch out to 500 fathoms.

Rivers known to have current spawning populations within the range of the Carolina DPS include

the Roanoke, Tar

- Pamlico, Cape Fear, Waccamaw, and Pee Dee Rivers. We determined spawning was occurring if young

- of

- the

- year (YOY) were observed, or mature adults were present, in freshwater portions of a system (Table 6 ). However, in some rivers, spawni ng by Atlantic sturgeon may not be contributing to population growth because of lack of suitable habitat and the presence of other stressors on juvenile survival and development. There may also be spawning populations in the Neuse, Santee and Cooper River s, though it is uncertain. Historically, both the Sampit and Ashley Rivers were documented to have spawning populations at one time. However, the spawning population in the Sampit River is believed to be extirpated and the current status of the spawning population in the Ashley River is unknown. Both rivers may be used as nursery habitat by young Atlantic sturgeon originating from other spawning populations. This represents our current knowledge of the river systems utilized by the Carolina DPS for spec ific life functions, such as spawning, nursery habitat, and foraging. However, fish from the Carolina DPS likely use other river systems than those listed here for their specific life functions.82

River/Estuary Spawning Population Data

Roanoke River, VA/NC; Albemarle Sound, NC Yes collection of 15 YOY (1997

- 1998); single YOY (2005)

Tar

- Pamlico River, NC;
Pamlico Sound Yes one YOY (2005)

Neuse River, NC;
Pamlico Sound Unknown

Cape Fear River, NC Yes upstream migration of adults in the fall, carcas s of a ripe female upstream in mid

- September (2006) Waccamaw River, SC; Winyah Bay Yes age

- 1, potentially YOY (1980s)

Pee Dee River, SC; Winyah Bay Yes running ripe male in Great Pee Dee River (2003) Sampit, SC; Winyah Bay Extirpated Santee River, SC Unknown Cooper River, SC Unknown Ashley River, SC Unknown

Table 6

. Major rivers, tributaries, and sounds within the range of the Carolina DPS and currently available data on the presence of an Atlantic sturgeon spawning population in each system.

The riverine spawning habitat of the Carolina DPS occurs within the Mid

- Atlantic Coastal Plain ecoregion (TNC 2002a), which includes bottomland hardwood forests, swamps, and some of the world’s most active coastal dunes, sounds, and estuaries. Natural f ires, floods, and storms are so dominant in this region that the landscape changes very quickly. Rivers routinely change their courses and emerge from their banks. The primary threats to biological diversity in the Mid

Atlantic Coastal Plain, as listed b y TNC are: global climate change and rising sea level; altered surface hydrology and landform alteration (e.g., flood

- control and hydroelectric dams, inter

- basin transfers of water, drainage ditches, breached levees, artificial levees, dredged inlets and r iver channels, beach renourishment, and spoil deposition banks and piles); a regionally receding water table, probably resulting from both over

- use and inadequate recharge; fire suppression; land fragmentation, mainly by highway development; land

- use conve rsion (e.g., from forests to timber plantations, farms, golf courses, housing developments, and resorts); the invasion of exotic plants and animals; air and water pollution, mainly from agricultural activities including concentrated animal feed operations; and over

- harvesting and poaching of species. Many of the Carolina DPS’ spawning rivers, located in the Mid

- Coastal Plain, originate in areas of marl. Waters draining calcareous, impervious surface materials such as marl are: (1) likely to be alkaline; ( 2) dominated by surface run

- off; (3) have little groundwater connection; and, (4) are seasonally ephemeral.

Historical landings data indicate that between 7,000 and 10,500 adult female Atlantic sturgeon were present in North Carolina prior to 1890 (Armst rong and Hightower 2002, Secor 2002). Secor (2002) estimates that 8,000 adult females were present in South Carolina during that same time

-83

frame. Prior reductions from the commercial fishery and ongoing threats have drastically reduced

the numbers of Atl antic sturgeon within the Carolina DPS. Currently, the Atlantic sturgeon spawning population in at least one river system within the Carolina DPS has been extirpated, with a potential extirpation in an additional system. The abundances of the remaining r iver populations within the DPS, each estimated to have fewer than 300 spawning adults, is estimated to be less than 3 percent of what they were historically (ASSRT 2007).

Threats The Carolina DPS was listed as endangered under the ESA as a result of a combination of habitat curtailment and modification, overutilization (i.e, being taken as bycatch) in commercial fisheries, and the inadequacy of regulatory mechanisms in ameliorating these impacts and threats.

The modification and curtailment of Atlant ic sturgeon habitat resulting from dams, dredging, and degraded water quality is contributing to the status of the Carolina DPS. Dams have curtailed Atlantic sturgeon spawning and juvenile developmental habitat by blocking over 60 percent of the

historica l sturgeon habitat upstream of the dams in the Cape Fear and Santee

- Cooper River systems. Water quality (velocity, temperature, and dissolved oxygen (DO)) downstream of these dams, as well as on the Roanoke River, has been reduced, which modifies and curt ails the extent of spawning and nursery habitat for the Carolina DPS. Dredging in spawning and nursery grounds modifies the quality of the habitat and is further curtailing the extent of available habitat in the Cape Fear and Cooper Rivers, where Atlantic sturgeon habitat has already been modified and curtailed by the presence of dams. Reductions in water quality from terrestrial activities have modified habitat utilized by the Carolina DPS. In the Pamlico and Neuse systems, nutrient

- loading and seasonal anoxia are occurring, associated in part with concentrated animal feeding operations (CAFOs). Heavy industrial development and CAFOs have degraded water quality in the Cape Fear River. Water quality in the Waccamaw and Pee Dee rivers have been affected by industrialization and riverine sediment samples contain high levels of various toxins, including dioxins. Additional stressors arising from water allocation and climate change threaten to exacerbate water quality problems that are already present throu ghout the range of the Carolina DPS. Twenty interbasin water transfers in existence prior to 1993, averaging 66.5 million gallons per day (mgd), were authorized at their maximum levels without being subjected to an evaluation for certification by
North Ca rolina Department of Environmental and Natural Resources or other resource agencies. Since the 1993 legislation requiring certificates for transfers, almost 170 mgd of interbasin water withdrawals have been authorized, with an additional 60 mgd pending ce rtification. The removal of large amounts of water from the system will alter flows, temperature, and DO. Existing water allocation issues will likely be compounded by population growth and potentially climate change. Climate change is also predicted to elevate water temperatures and exacerbate nutrient

- loading, pollution inputs, and lower DO, all of which are current stressors to the Carolina DPS.

Overutilization of Atlantic sturgeon from directed fishing caused initial severe declines in Atlantic

stur geon populations in the Southeast, from which they have never rebounded. Further, continued overutilization of Atlantic sturgeon as bycatch in commercial fisheries is an ongoing impact to the Carolina DPS. Atlantic sturgeon are more sensitive to bycatch mortality because they are a long

lived species, have an older age at maturity, have lower maximum fecundity values, and a large percentage of egg production occurs later in life. Based on these life history traits, Boreman (1997)

calculated that Atlantic sturgeon can only withstand the annual loss of up to 5 percent of their84

population to bycatch mortality without suffering population declines. Mortality rates of Atlantic sturgeon taken as bycatch in various types of fishing gear range between 0 and 51 p ercent, with the greatest mortality occurring in sturgeon caught by sink gillnets. Atlantic sturgeon are particularly vulnerable to being caught in sink gillnets, therefore fisheries using this type of gear account for a high percentage of Atlantic sturge on bycatch. Little data exists on bycatch in the Southeast and high levels of bycatch underreporting are suspected. Further, a total population abundance for the DPS is not available, and it is therefore not possible to calculate the percentage of the DP S subject to bycatch mortality based on the available bycatch mortality rates for individual fisheries. However, fisheries known to incidentally catch Atlantic sturgeon occur throughout the marine range of the species and in some riverine waters as well. Because Atlantic sturgeon mix extensively in marine waters and may access multiple river systems, they are subject to being caught in multiple fisheries throughout their range. In addition, stress or injury to Atlantic sturgeon taken as bycatch

but relea sed alive may result in increased susceptibility to other threats, such as poor water quality (e.g., exposure to toxins and low DO). This may result in reduced ability to perform major life functions, such as foraging and spawning, or even post

- capture mo rtality.

As a wide

- ranging anadromous species, Atlantic sturgeon are subject to numerous Federal (U.S. and Canadian), state and provincial, and inter

- jurisdictional laws, regulations, and agency activities. While these mechanisms have addressed impacts to Atlantic sturgeon through directed fisheries, there are currently no mechanisms in place to address the significant risk posed to Atlantic sturgeon from commercial bycatch. Though statutory and regulatory mechanisms exist that authorize reducing the i mpact of dams on riverine and anadromous species, such as Atlantic sturgeon, and their habitat, these mechanisms have proven inadequate for preventing dams from blocking access to habitat upstream and degrading habitat downstream. Further, water quality c ontinues to be a problem in the Carolina DPS, even with existing controls on some pollution sources. Current regulatory regimes are not necessarily effective in controlling water allocation issues (e.g., no
restrictions on interbasin water transfers in So uth Carolina, the lack of ability to regulate non

- point source pollution, etc.)

The recovery of Atlantic sturgeon along the Atlantic Coast, especially in areas where habitat is limited and water quality is severely degraded, will require improvements in the following areas: (1) elimination of barriers to spawning habitat either through dam removal, breaching, or installation of successful fish passage facilities; (2) operation of water control structures to provide appropriate flows, especially during spa wning season; (3) imposition of dredging restrictions including seasonal moratoriums and avoidance of spawning/nursery habitat; and, (4) mitigation of water quality parameters that are restricting sturgeon use of a river (i.e., DO). Additional data regard ing sturgeon
use of riverine and estuarine environments is needed.

The concept of a viable population able to adapt to changing environmental conditions is critical to Atlantic sturgeon, and the low population numbers of every river population in the Caro lina DPS put them in danger of extinction throughout their range; none of the populations are large or stable enough to provide with any level of certainty for continued existence of Atlantic sturgeon in this part of its range. Although the largest impact that caused the precipitous decline of the species has been curtailed (directed fishing), the population sizes within the Carolina DPS have remained relatively constant at greatly reduced levels (approximately 3 percent of historical population sizes)

for 100 years. Small numbers of individuals resulting from drastic reductions in populations, such85

as occurred with Atlantic sturgeon due to the commercial fishery, can remove the buffer against natural demographic and environmental variability provided by l arge populations (Berry, 1971; Shaffer, 1981; Soulé, 1980). Recovery of depleted populations is an inherently slow process for a

late

- maturing species such as Atlantic sturgeon, and they continue to face a variety of other threats

that contribute to their risk of extinction. Their late age at maturity provides more opportunities for individual Atlantic sturgeon to be removed from the population before reproducing. While a long

life

- span also allows multiple opportunities to contribute to future generatio ns, it also results increases the timeframe over which exposure to the multitude of threats facing the Carolina DPS

can occur.

The viability of the Carolina DPS depends on having multiple self

- sustaining riverine spawning populations and maintaining sui table habitat to support the various life functions (spawning, feeding, growth) of Atlantic sturgeon sturgeon populations. Because a DPS is a group of populations, the stability, viability, and persistence of individual populations affects the persistence and viability of the larger DPS. The loss of any population within a DPS will result in: (1) a long

term gap in the range of the DPS that is unlikely to be recolonized; (2) loss of reproducing individuals; (3) loss of genetic biodiversity; (4) potential loss of unique haplotypes; (5) potential loss of adaptive traits; and (6) reduction in total number. The loss of a population will negatively impact the persistence and viability of the DPS as a whole, as fewer than two individuals per generation spawn ou tside their natal rivers (Secor and Waldman 1999). The persistence of individual populations, and in turn the DPS, depends on successful spawning and rearing within the freshwater habitat, the immigration into marine habitats to grow, and then the return of adults to natal rivers to spawn.

Summary of the Status of the Carolina DPS of Atlantic Sturgeon In summary, the Carolina DPS is estimated to number less than 3 percent of its historic population size. There are estimated to be less than 300 spawning adults per year (total of both sexes) in each of the major river systems occupied by the DPS in which spawning still occurs, whose freshwater range occurs in the watersheds (including all rivers and tributaries) from Albemarle Sound southward along the so uthern Virginia, North Carolina, and South Carolina coastal areas to Charleston Harbor. Recovery of depleted populations is an inherently slow process for a late

maturing species such as Atlantic sturgeon. Their late age at maturity provides more opportu nities for individuals to be removed from the population before reproducing. While a long life

- span also allows multiple opportunities to contribute to future generations, this is hampered within the Carolina DPS by habitat alteration and bycatch. This D PS was severely depleted by past directed commercial fishing, and faces ongoing impacts and threats from habitat alteration or inaccessibility, bycatch, and the inadequacy of existing regulatory mechanisms to address and reduce habitat alterations and byca tch that have prevented river populations from rebounding and will prevent their

recovery.

The presence of dams has resulted in the loss of over 60 percent of the historical sturgeon habitat on the Cape Fear River and in the Santee

- Cooper system. Dams are contributing to the status of the Carolina DPS by curtailing the extent of available spawning habitat and further modifying the remaining habitat downstream by affecting water quality parameters (such as depth, temperature, velocity, and DO) that are i mportant to sturgeon. Dredging is also contributing to the status of the Carolina DPS by modifying Atlantic sturgeon spawning and nursery habitat. Habitat modifications86

through reductions in water quality are contributing to the status of the Carolina DP S due to

nutrient

- loading, seasonal anoxia, and contaminated sediments. Interbasin water transfers and climate change threaten to exacerbate existing water quality issues. Bycatch is also a current threat to the Carolina DPS that is contributing to its s tatus. Fisheries known to incidentally catch Atlantic sturgeon occur throughout the marine range of the species and in some riverine waters as well. Because Atlantic sturgeon mix extensively in marine waters and may utilize multiple river systems

for nur sery and foraging habitat in addition to their natal spawning river, they are subject to being caught in multiple fisheries throughout their range. In addition to direct mortality, stress or injury to Atlantic sturgeon taken as bycatch but released alive may result in increased susceptibility to other threats, such as poor water quality (e.g., exposure to toxins). This may result in reduced ability to perform major life functions, such as foraging and spawning, or even post

- capture mortality. While

many of the threats to the Carolina DPS have been ameliorated or reduced due to the existing regulatory mechanisms, such as the moratorium on directed fisheries for Atlantic sturgeon, bycatch is currently not being addressed through existing mechanisms. Furthe r, access to habitat and water quality continues to be a problem even with NMFS’ authority under the Federal Power Act to recommend fish passsage and existing controls on some pollution sources. The inadequacy of regulatory mechanisms to control bycatch a nd habitat alterations is contributing to the status of the
Carolina DPS.

4. 12 South Atlantic DPS of Atlantic sturgeon The South Atlantic DPS includes all Atlantic sturgeon that spawn or are spawned in the watersheds (including all rivers and tributaries ) of the Ashepoo, Combahee, and Edisto Rivers (ACE) Basin southward along the South Carolina, Georgia, and Florida coastal areas to the St. Johns River, Florida. The marine range of Atlantic sturgeon from the South Atlantic DPS extends from the

Hamilton I nlet, Labrador, Canada, to Cape Canaveral, Florida.

Rivers known to have current spawning populations within the range of the South Atlantic DPS

include the Combahee, Edisto, Savannah, Ogeechee, Altamaha, and Satilla Rivers. We determined spawning was occurring if young

- of

- the

- year (YOY) were observed, or mature adults were present, in freshwater portions of a system (Table 7 ). However, in some rivers, spawning by Atlantic sturgeon may not be contributing to population growth because of lack of suitabl e habitat and the presence of other stressors on juvenile survival and development. Historically, both the Broad

Coosawatchie and St. Marys Rivers were documented to have spawning populations at one time; there is also evidence that spawning may have occu rred in the St. Johns River or one of its tributaries. However, the spawning population in the St. Marys River, as well as any historical spawning population present in the St. Johns, is believed to be extirpated, and the status of the spawning population in the Broad

- Coosawatchie is unknown. Both the St. Marys and St. Johns Rivers are used as nursery habitat by young Atlantic sturgeon originating from other spawning populations. The use of the Broad

- Coosawatchie by sturgeon from other spawning populatio ns is unknown at this time. The presence of historical and current spawning populations in the Ashepoo River has not been documented; however, this river may currently be used for nursery habitat by young Atlantic sturgeon originating from other spawning populations. This represents our current knowledge of the river systems utilized by the South Atlantic DPS for specific life functions, such as spawning, nursery habitat, and foraging. However, fish from the South Atlantic DPS likely use other river syst ems than those listed here for their specific life functions.87

River/Estuary Spawning Population Data

ACE (Ashepoo, Combahee, and Edisto Rivers) Basin, SC;
St. Helena Sound Yes 1,331 YOY (1994

- 2001); gravid female and running ripe male in the Edisto (1 997); 39 spawning adults (1998)

Broad

- Coosawhatchie Rivers, SC; Port Royal Sound Unknown

Savannah River, SC/GA Yes 22 YOY (1999

- 2006); running ripe male (1997) Ogeechee River, GA Yes age

- 1 captures, but high inter

annual variability (1991

- 1998);

17 YOY (2003); 9 YOY (2004) Altamaha River, GA Yes 74 captured/308 estimated spawning adults (2004); 139 captured/378 estimated spawning adults (2005) Satilla River, GA Yes 4 YOY and spawning adults (1995

- 1996) St. Marys River, GA/FL Extirpated

St. Johns Ri ver, FL Extirpated

Table 7

. Major rivers, tributaries, and sounds within the range of the South Atlantic DPS and currently available data on the presence of an Atlantic sturgeon spawning population in each
system.

The riverine spawning habitat of the South Atlantic DPS occurs within the South Atlantic Coastal Plain ecoregion (TNC 2002b), which includes fall

- line sandhills, rolling longleaf pine uplands, wet pine flatwoods, isolated depression wetlands, small streams, large river systems, and estuaries. Other ecological systems in the ecoregion include maritime forests on barrier islands, pitcher plant seepage bogs and Altamaha grit (sandstone) outcrops. Other ecological systems in the ecoregion include maritime forests on barrier islands, pitcher plan t seepage bogs and Altamaha grit (sandstone) outcrops. The primary threats to biological diversity in the South Atlantic Coastal Plain listed by TNC are intensive silvicultural practices, including conversion of natural forests to highly managed pine mono cultures and the clear

- cutting of bottomland hardwood forests. Changes in water quality and quantity, caused by hydrologic alterations (impoundments, groundwater withdrawal, and ditching), and point and nonpoint pollution, are threatening the aquatic syst ems. Development is a growing threat, especially in coastal areas. Agricultural conversion, fire regime alteration, and the introduction of nonnative species are additional threats to the ecoregion’s diversity. The South Atlantic DPS’ spawning rivers, l ocated in the South Atlantic Coastal Plain, are primarily of two types: brownwater (with headwaters north of the Fall Line, silt

- laden) and blackwater (with headwaters in the coastal plain, stained by tannic acids).88

Secor (2002) estimates that 8,000 adu lt females were present in South Carolina prior to 1890. Prior to the collapse of the fishery in the late 1800s, the sturgeon fishery was the third largest fishery in Georgia. Secor (2002) estimated from U.S. Fish Commission landing reports that approxim ately 11,000 spawning females were likely present in the state prior to 1890. Reductions from the commercial fishery and ongoing threats have drastically reduced the numbers of Atlantic sturgeon within the South Atlantic DPS. Currently, the Atlantic stur geon spawning population in at least two river systems within the South Atlantic DPS has been extirpated. The Altamaha River population of Atlantic sturgeon, with an estimated 343 adults spawning annually, is believed to be the largest population in the S outheast, yet is estimated to be only 6 percent of its historical population size. The abundances of the remaining river populations within the DPS, each estimated to have fewer than 300 spawning adults, is estimated to be less than 1 percent of what they were historically (ASSRT 2007).

Threats The South Atlantic DPS was listed as endangered under the ESA as a result of a combination of habitat curtailment and modification, overutilization (i.e, being taken as bycatch) in commercial fisheries, and the i nadequacy of regulatory mechanisms in ameliorating these impacts and threats.

The modification and curtailment of Atlantic sturgeon habitat resulting from dredging and degraded water quality is contributing to the status of the South Atlantic DPS. Dred ging is a present threat to the South Atlantic DPS and is contributing to their status by modifying the quality and availability of Atlantic sturgeon habitat. Maintenance dredging is currently modifying Atlantic sturgeon nursery habitat in the Savannah Ri ver and modeling indicates that the proposed deepening of the navigation channel will result in reduced DO and upriver movement of the salt wedge, curtailing spawning habitat. Dredging is also modifying nursery and foraging habitat in the St. Johns Rivers

. Reductions in water quality from terrestrial activities have modified habitat utilized by the South Atlantic DPS. Low DO is modifying sturgeon habitat in the Savannah due to dredging, and non

point source inputs are causing low DO in the Ogeechee River and in the St. Marys River, which completely eliminates juvenile nursery habitat in summer. Low DO has also been observed in the St. Johns River in the summer. Sturgeon are more sensitive to low DO and the negative (metabolic, growth, and feeding) effec ts caused by low DO increase when water temperatures are concurrently high, as they are within the range of the South Atlantic DPS. Additional stressors arising from water allocation and climate change threaten to exacerbate water quality problems that ar e already present throughout the range of the South Atlantic DPS. Large withdrawals of over 240 million gallons per day mgd of water occur in the Savannah River for power generation and municipal uses. However, users withdrawing less than 100,000 gallons per day (gpd) are not required to get permits, so actual water withdrawals from the Savannah and other rivers within the range of the South Atlantic DPS are likely much higher. The removal of large amounts of water from the system will alter flows, tempe rature, and DO. Water shortages and “water wars” are already occurring in the rivers occupied by the South Atlantic DPS and will likely be compounded in the future by population growth and potentially by climate change. Climate change is also predicted t o elevate water temperatures and exacerbate nutrient

- loading, pollution inputs, and lower DO, all of which
are current stressors to the South Atlantic DPS.

Overutilization of Atlantic sturgeon from directed fishing caused initial severe declines in Atlant ic sturgeon populations in the Southeast, from which they have never rebounded. Further, continued89

overutilization of Atlantic sturgeon as bycatch in commercial fisheries is an ongoing impact to the South Atlantic DPS. The loss of large subadults and adu lts as a result of bycatch impacts Atlantic sturgeon populations because they are a long

- lived species, have an older age at maturity, have lower maximum fecundity values, and a large percentage of egg production occurs later in life.

Little data exists o n bycatch in the Southeast and high levels of bycatch underreporting are suspected. Further, a total population abundance for the DPS is not available, and it is therefore not possible to calculate the percentage of the DPS subject to bycatch mortality ba sed on the available bycatch mortality rates for individual fisheries. However, fisheries known to incidentally catch Atlantic sturgeon occur throughout the marine range of the species and in some riverine waters as well. Because Atlantic sturgeon mix ex tensively in marine waters and may access multiple river systems, they are subject to being caught in multiple fisheries throughout their range. In addition, stress or injury to Atlantic sturgeon taken as bycatch but released alive may result in increased susceptibility to other threats, such as poor water quality (e.g., exposure to toxins and low DO). This may result in reduced ability to perform major life functions, such as foraging and spawning,
or even post

- capture mortality.

As a wide

- ranging ana dromous species, Atlantic sturgeon are subject to numerous Federal (U.S. and Canadian), state and provincial, and inter

- jurisdictional laws, regulations, and agency activities. While these mechanisms have addressed impacts to Atlantic sturgeon through dir ected fisheries, there are currently no mechanisms in place to address the significant risk posed to Atlantic sturgeon from commercial bycatch. Though statutory and regulatory mechanisms exist that authorize reducing the impact of dams on riverine and ana dromous species, such as Atlantic sturgeon, and their habitat, these mechanisms have proven inadequate for preventing dams from blocking access to habitat upstream and degrading habitat downstream. Further, water quality continues to be a problem in the S outh Atlantic DPS, even with existing controls on some pollution sources. Current regulatory regimes are not necessarily effective in controlling water allocation issues (e.g., no permit requirements for water withdrawals under 100,000 gpd in Georgia, no restrictions on interbasin water transfers in South Carolina, the lack of ability to regulate non

- point source pollution.)

The recovery of Atlantic sturgeon along the Atlantic Coast, especially in areas where habitat is limited and water quality is sever ely degraded, will require improvements in the following areas: (1) elimination of barriers to spawning habitat either through dam removal, breaching, or installation of successful fish passage facilities; (2) operation of water control structures to provi de appropriate flows, especially during spawning season; (3) imposition of dredging restrictions including seasonal moratoriums and avoidance of spawning/nursery habitat; and, (4) mitigation of water quality parameters that are restricting sturgeon use of a river (i.e., DO). Additional data regarding sturgeon
use of riverine and estuarine environments is needed.

A viable population able to adapt to changing environmental conditions is critical to Atlantic sturgeon, and the low population numbers of every river population in the South Atlantic DPS put them in danger of extinction throughout their range; none of the populations are large or stable enough to provide with any level of certainty for continued existence of Atlantic sturgeon in this part of its r ange. Although the largest impact that caused the precipitous decline of the species has been curtailed (directed fishing), the population sizes within the South Atlantic DPS have remained relatively constant at greatly reduced levels (approximately 6 per cent of historical population sizes90

in the Altamaha River, and 1 percent of historical population sizes in the remainder of the DPS) for 100 years. Small numbers of individuals resulting from drastic reductions in populations, such as
occurred with Atlant ic sturgeon due to the commercial fishery, can remove the buffer against natural demographic and environmental variability provided by large populations (Berry, 1971; Shaffer, 1981; Soulé, 1980). Recovery of depleted populations is an inherently slow proc ess for a

late

- maturing species such as Atlantic sturgeon, and they continue to face a variety of other threats that contribute to their risk of extinction. Their late age at maturity provides more opportunities for individual Atlantic sturgeon to be remo ved from the population before reproducing. While a long

life

- span also allows multiple opportunities to contribute to future generations, it also results increases the timeframe over which exposure to the multitude of threats facing the South Atlantic

DP S can occur.

Summary of the Status of the South Atlantic DPS of Atlantic Sturgeon The South Atlantic DPS is estimated to number fewer than 6 percent of its historical population size, with all river populations except the Altamaha estimated to be less t han 1 percent of historical abundance. There are an estimated 343 spawning adults per year in the Altamaha and less than 300 spawning adults per year (total of both sexes) in each of the other major river systems occupied by the DPS in which spawning stil l occurs, whose freshwater range occurs in the watersheds (including all rivers and tributaries) of the ACE Basin southward along the South Carolina, Georgia, and Florida coastal areas to the St. Johns River, Florida. Recovery of depleted populations is a n inherently slow process for a late

- maturing species such as Atlantic sturgeon. Their late age at maturity provides more opportunities for individuals to be removed from the population before reproducing. While a long life

- span also allows multiple oppo rtunities to contribute to future generations, this is hampered within the South Atlantic DPS by habitat alteration, bycatch, and from the inadequacy of existing regulatory mechanisms to address and reduce habitat alterations and bycatch.

Dredging is co ntributing to the status of the South Atlantic DPS by modifying spawning, nursery, and foraging habitat. Habitat modifications through reductions in water quality are also contributing to the status of the South Atlantic DPS through reductions in DO, part icularly during times of high water temperatures, which increase the detrimental effects on Atlantic sturgeon habitat. Interbasin water transfers and climate change threaten to exacerbate existing water quality issues. Bycatch is also a current impact to the South Atlantic DPS that is contributing to its status. Fisheries known to incidentally catch Atlantic sturgeon occur throughout the marine range of the species and in some riverine waters as well. Because Atlantic sturgeon mix extensively in marine waters and may utilize multiple river systems for nursery and foraging habitat in addition to their natal spawning river, they are subject to being caught in multiple fisheries throughout their range. In addition to direct mortality, stress or injury to A tlantic sturgeon taken as bycatch but released alive may result in increased susceptibility to other threats, such as poor water quality (e.g., exposure to toxins). This may result in reduced ability to perform major life functions, such as foraging and s pawning, or even post

- capture mortality. While many of the threats to the South Atlantic DPS have been ameliorated or reduced due to the existing regulatory mechanisms, such as the moratorium on directed fisheries for Atlantic sturgeon, bycatch is current ly not being addressed through existing mechanisms. Further, access to habitat and water quality continues to be a problem even with NMFS’ authority under the Federal Power Act to recommend fish passsage and existing controls on some pollution sources. T here is a lack of regulation for some large water91

withdrawals, which threatens sturgeon habitat. Current regulatory regimes do not require a permit for water withdrawals under 100,000 gpd in Georgia and there are no restrictions on interbasin
water transf

ers in South Carolina. Data required to evaluate water allocation issues are either very weak, in terms of determining the precise amounts of water currently being used, or non

- existent, in terms of our knowledge of water supplies available for use under historical hydrologic conditions in the region. Existing water allocation issues will likely be compounded by population growth, drought, and potentially climate change. The inadequacy of regulatory mechanisms to control bycatch and habitat alterations i s contributing to the status of the South Atlantic DPS.

4. 13 Summary of Available Information on Use of Action Area by Listed Species

4. 13 .1 Sea turtles Sea turtles are seasonally present in Delaware Bay from May to early November each year, with the highest number of individuals present from June to October. Sea turtles occur as far upstream as Artificial Island, but are unlikely to be present in reaches further upstream ; as such sea turtles are only present in Reaches D and E

.

One of the main fac tors influencing sea turtle presence in northern waters is seasonal temperature patterns (Ruben and Morreale 1999). Temperature is correlated with the time of year, with the warmer waters in the late spring, summer, and early fall being the most suitable for cold

- blooded
sea turtles. Sea turtles are most likely to occur in the action area between June and October when water temperatures are above 11°C and depending on seasonal weather patterns, could be present in May and early November. Sea turtles have been documented in the action area by the CETAP aerial and boat surveys as well as by surveys conducted by NMFS Northeast Science Center and fisheries observers. Additionally, satellite tracked sea turtles have been documented in the action area (seaturt le.org tracking database). The majority of sea turtle observations have been of loggerhead sea turtles, although all four species of sea turtles have been recorded in the area.

To some extent, water depth also dictates the number of sea turtles occurri ng in a particular area. The only areas to be dredged have water depths of less than 45 feet. Satellite tracking studies of sea turtles in the Northeast found that foraging turtles mainly occurred in areas where the water depth was between approximately 16 and 49 ft (Ruben and Morreale 1999). This depth was interpreted not to be as much an upper physiological depth limit for turtles, as a natural limiting depth where light and food are most suitable for foraging turtles (Morreale and Standora 1990). The areas to be dredged and the depths preferred by sea turtles do overlap, suggesting that if suitable forage was present, loggerheads and Kemp’s ridleys may be foraging in the channel areas where dredging will occur. As there are no SAV beds in any of the channel areas where dredging will occur, green sea turtles are not likely to use the areas to be dredged for foraging.

4. 13

. 2 Shortnose Sturgeon Shortnose sturgeon occur in the Delaware River from the lower bay upstream to at least Lambertville, New J ersey (river mile 148). Tagging studies by O’Herron et al. (1993) found that the most heavily used portion of the river appears to be between river mile 118 below Burlington Island and river mile 137 at the Trenton Rapids. Hastings et al. (1987) used Flo y T

- anchor tags in a
tag

- and

- recapture experiment from 1981 to 1984 to estimate the size of the Delaware River population in the Trenton to Florence reach. Population sizes by three estimation procedures ranged92

from 6,408 to 14,080 adult sturgeon. These estimates compare favorably with those based upon similar methods in similar river systems. This is the best available information on population size, but because the recruitment and migration rates between the population segment studied and the total pop ulation in the river are unknown, model assumptions may have been violated.

In the Delaware River, movement to the spawning grounds occurs in early spring , typically in late

March 15 , with spawning occurring through the end of April . Movement to the spawn ing areas is triggered in part by water temperature and fish typically arrive at the spawning locations when water temperatures are between 8

- 9oC with most spawning occurring when water temperatures are
between 10 and 15oC. Until recently, actual spawning (i.e., fertilized eggs or larvae) ha d not been

documented in this area ; however, the concentrated use of the Scudders Falls region in the spring by large numbers of mature male and female shortnose sturgeon indicate d that this is the major spawning area ( O’Herron et al. 1993). The same area was identified as a likely spawning area based on the collection of two ripe females in the spring of 1965 (Hoff 1965). The capture of early life stages (eggs and larvae) in this region in the spring of 2008 confirms that this area of the river is used for spawning and as a nursery area (ERC 2009). During the spawning period, males remain on the spawning grounds for approximately a week while females only stay for a few days (O’Herron and Hastings 1985). After spawni ng, which typically ceases by the time water temperatures reach 15oC (although sturgeon have been reported on the spawning grounds at water temperatures as high

as 18oC) , shortnose sturgeon move rapidly downstream to the Philadelphia area.

Shortnose stu rgeon eggs generally hatch after approximately 9

- 12 days (Buckley and Kynard 1981). The larvae are photonegative, remaining on the bottom for several days. Buckley and Kynard (1981) found week old larvae to be photonegative and form aggregations with oth er larvae in concealment. Larvae are expected to begin swimming downstream at 9

- 14 days old (Richmond and Kynard 1995). Larvae are expected to be less than 20mm TL at this time (Richmond and Kynard 1995). This initial downstream migration generally last s two to three days (Richmond and Kynard 1995). Studies (Kynard and Horgan 2002) suggest that larvae move approximately 7.5km/day during this initial 2 to 3 day migration. Laboratory studies indicate that young sturgeon move
downstream in a 2

- step migrat ion: the initial 2

- 3 day migration followed by a residency period of the Young of the Year (YOY), then a resumption of migration by yearlings in the second summer of life (Buckley and Kynard 1981).

No studies have been conducted on juveniles in the Dela ware River. As shortnose sturgeon demonstrate nearly identical migration patterns in all rivers, it is likely that juveniles in the Delaware River exhibit similar migration patterns to sturgeon in other river systems. As such, it is likely that yearlings are concentrated in the upper Delaware River above Philadelphia.

As noted above, due to limited information on juvenile shortnose sturgeon, it is difficult to ascertain

15 Based on US Geological Survey (USGS) water temperature data for the Delaware River at the Trenton gage (USGS gage 01463500; the si te closest to the Scudders Falls area), for the period 2003

- 2009, water temperature reached 8°C sometime between March 26 (2006) and April 21 (2007), with temperatures typically reaching 8°C in the last few days of March. During this period, mean water te mperatures at Trenton reached 10°C between March 28 (2004) and April 22 (2007) and 15oC between April 15 (2006) and April 21 (2003). There is typically a three to four week period with mean daily temperatures between 8 and 15°C.93

their distribution and nursery habitat (O’Herron 2000, pers. comm.). In other rive r systems, older juveniles (3

- 10 years old) occur in the saltwater/freshwater interface (NMFS 1998). In these systems, juveniles moved back and forth in the low salinity portion of the salt wedge during summer. In the Delaware River the oligohaline/fresh interface can range from as far south as Wilmington, Delaware, north to Philadelphia, Pennsylvania, depending upon meteorological conditions such as excessive rainfall or drought. As a result, it is possible that in the Delaware River, juveniles could ra nge from Artificial Island (river mile 54) to the Schuylkill River (river mile 92) (O’Herron 2000, pers. comm.). The distribution of juveniles in the river is likely highly influenced by flow and salinity. In years of high flow (for example, due to exces sive rains or a significant spring runoff), the salt wedge will be pushed seaward and the low salinity reaches preferred by juveniles will extend further downriver. In these years, shortnose sturgeon juveniles are likely to be found further downstream in the summer months. In years of low flow, the salt wedge will be higher in the river and in these years juveniles are likely to be concentrated further
upstream.

O’Herron believes that if juveniles are present within this range they would likely aggrega te closer to the downstream boundary in the winter when freshwater input is normally greater (O’Herron 2000, pers. comm.). Research in other river systems indicates that juveniles are typically found over silt and sand/mud substrates in deep water of 10

- 2 0m. Juvenile sturgeon primarily feed in 10 to 20 meter deep river channels, over sand

- mud or gravel

- mud bottoms (Pottle and Dadswell 1979). However, little is known about the specific feeding habits of juvenile shortnose sturgeon in the
Delaware River.

As noted above, after spawning, adult shortnose sturgeon migrate rapidly downstream to the Philadelphia area (RM 100) . After adult sturgeon migrate to the area around Philadelphia, many adults return upriver to between river mile 127 and 134 within a few weeks, while others gradually move to the same area over the course of the summer (O’Herron 1993). By the time water temperatures have reached 10°C, typically by mid

- November 16

, adult sturgeon have returned to the overwintering grounds around Duck Island a nd Newbold Island. These patterns are generally supported by the movement of radio

- tagged fish in the region between river mile 125 and river mile 148 as presented by Brundage (1986). Based on water temperature data collected at the USGS gage

at Philadel phia, in general, shortnose sturgeon are expected to be at the overwintering grounds between early November and mid

- April. Adult sturgeon overwinter in dense sedentary aggregations in the upper tidal reaches of the Delaware between river mile 118 and 131. The areas around Duck Island and Newbold Island seem to be regions of intense overwintering concentrations. However, unlike sturgeon in other river systems, shortnose sturgeon in the Delaware do not appear to remain as stationary during overwintering pe riods. Overwintering fish have been found to be generally active, appearing at the surface and even breaching through the skim ice (O’Herron 1993). Due to the relatively active nature of these fish, the use of the river during the winter is difficult to predict. However, O’Herron et al. (1993) found that the typical overwintering movements are fairly localized and sturgeon appear to remain within 1.24 river miles

16 Based on information f rom the USGS gage at Philadelphia (01467200) during the 2003

- 2008 time period, mean water temperatures reached 10°C between October 29 (2005 and 2006) and November 14 (2003). In the spring, mean water temperature reached 10°C between April 2 (2006) and Ap ril 21 (2009).94

of the aggregation site (O’Herron and Able 1986). Investigations with video equipment by th e ACOE in March 2005 (Versar 2006) documented two sturgeon of unknown species at Marcus Hook and 1 sturgeon of unknown species at Tinicum. Gillnetting in these same areas caught only one Atlantic sturgeon and no shortnose sturgeon. Video surveys of the k nown overwintering area near Newbold documented 61 shortnose sturgeon in approximately 1/3 of the survey effort. This study supports the conclusion that the vast majority of shortnose sturgeon overwinter near Duck and
Newbold Island but that a limited num ber of shortnose sturgeon occur in other downstream areas, including Marcus Hook, during the winter months. The overwintering location of juvenile shortnose sturgeon is not known but believed to be on the freshwater side of the oligohaline/fresh
water int erface (O’Herron 1990). In the Delaware River, the oligohaline/freshwater interface occurs in the area between Wilmington, Delaware and Marcus Hook, Pennsylvania (O’Herron 1990).

Shortnose sturgeon appear to be strictly benthic feeders (Dadswell 1984). Adults eat mollusks, insects, crustaceans and small fish. Juveniles eat crustaceans and insects. While shortnose sturgeon forage on a variety of organisms, in the Delaware River, sturgeon primarily feed on the Asiatic river clam ( Corbicula manilensis ). Corbicula is widely distributed at all depths in the upper tidal Delaware River, but it is considerably more numerous in the shallows on both sides of the river than in the navigation channels. Foraging is heaviest immediately after spawning in the sprin g and during the summer and fall, and lighter in the winter.

Historically, sturgeon were relatively rare below Philadelphia due to poor water quality. Since the 1990s, the water quality in the Philadelphia area has improved leading to an increased use of the lower river by shortnose sturgeon. Few studies have been conducted to document the use of the river below Philadelphia by sturgeon. Brundage and Meadows (1982) have reported incidental captures in commercial gillnets in the lower Delaware. During a study focusing on Atlantic sturgeon, Shirey et al. (1999) captured 9 shortnose sturgeon in 1998. During the June through September study period, Atlantic and shortnose sturgeon were found to use the area on the west side of the shipping channel between Deep Water Point, New Jersey and the Delaware

- Pennsylvania line. The most frequently utilized areas within this section were off the northern and southern ends of Cherry Island Flats in the vicinity of the Marcus Hook Bar. A total of 25 shortnose sturge on have been captured by Shirey in this region of the river from 1992

- 2004, with capture rates ranging from 0

- 10 fish per year (Shirey 2006). Shortnose sturgeon have also been documented on the trash racks of the Salem nuclear power plant in Salem, New Jersey at Artificial Island . The intakes for this plant are located in Delaware Bay. While the available information does not identify the area below Philadelphia as a concentration area for adult shortnose sturgeon, it is apparent that this species does occur in the lower Delaware River and upper Delaware Bay.

In May 2005, a one

- year survey for juvenile sturgeon in the Delaware River in the vicinity of the proposed Crown Landing LNG project was initiated. The objective of the survey was to obtain

info rmation on the occurrence and distribution of juvenile shortnose and Atlantic sturgeon near the proposed project site to be located near RM 78, approximately 20 miles south of Philadelphia. Sampling for juvenile sturgeon was performed using trammel nets a nd small mesh gill nets. The nets were set at three stations, one located adjacent to the project site, one at the upstream end of the Marcus Hook anchorage (approximately 2.7 miles upstream of the project site, at RM 81), and one near the upstream end of the Cherry Island Flats (at RM 74; approximately 3.8 miles downstream of95

the site). Nets were set within three depth ranges at each station: shallow (<10 feet at MLW), intermediate (10

- 20 feet at MLW) and deep (20

- 30+ feet at MLW). Each station/depth z one was sampled once per month. Nets were fished for at least 4 hours when water temperatures were less than 27°C and limited to 2 hours when water temperature was greater than 27°C. The sampling from April through August 2005 yielded 3,014 specimens of 22 species, including 3 juvenile shortnose sturgeon. Juvenile shortnose sturgeon were collected one each during the June, July and August sampling events. Two of the shortnose sturgeon were collected at RM 78 and one was taken at the downstream sampling station at RM 74. Total length ranged from 311

- 367mm. During the September

– December sampling, one juvenile shortnose sturgeon was caught in September at RM 78 and one in November at the same location. One adult shortnose sturgeon was captured in

Octo ber at RM 74. All of the shortnose sturgeon were collected in deep water sets (greater than 20 feet). These depths are consistent with the preferred depths for foraging shortnose sturgeon juveniles reported in the literature (NMFS 1998). The capture of an adult in the Cherry Island Flats area (RM 74) is consistent with the capture location of several adult sturgeon reported by Shir e y et al. 1999 and Shirey 2006.

Brundage compiled a report presenting an analysis of telemetry data from receivers locat ed at Torresdale RM 93, Tinicum RM 86, Bellevue RM 73 and New Castle RM 58 during April through December 2003. The objective of the study was to provide information on the occurrence and movements of shortnose sturgeon in the general vicinity of the propo sed Crown Landing LNG facility. A total of 60 shortnose sturgeon had been tagged with ultrasonic transmitters: 30 in fall 2002, 13 in early summer 2003 and 13 in fall 2003. All fish tagged were adults tagged after collection in gill nets in the upper ti dal Delaware River, between RM 126

- 132. Of the 60 tagged sturgeon, 39 (65%) were recorded at Torresdale, 22 (36.7%) were recorded at Tinicum, 16 (26.7%) at Bellevue and 18 (30%) at New Castle. The number of tagged sturgeon recorded at each location
varie d with date of tagging. Of the 30 sturgeon tagged in fall 2002, 26 were recorded at Torresdale, 17 at Tinicum, 11 at Bellevue and 13 at New Castle. Only two of the 13 tagged in fall 2003 were recorded, both at Torresdale only. Brundage concludes that se asonal movement patterns and time available for dispersion likely account for this variation, particularly for the fish tagged in fall 2003. Eleven of the 30 shortnose sturgeon tagged in fall 2002 and 5 of the 17 fish tagged in summer 2003
were recorded a t all four locations. Some of the fish evidenced rapid movements from one location sequentially to the next in upstream and/or downstream direction. These periods of rapid sequential movement tended to occur in the spring and fall, and were probably asso ciated with movement to summer foraging and overwintering grounds, respectively. As a group, the shortnose sturgeon tagged in summer 2003 occurred a high percentage of time within the range of the Torresdale receiver. The report concludes that the metric s indicate that the Torresdale Range of the Delaware River is utilized by adult shortnose sturgeon more frequently and for greater durations than the other three locations. Of the other locations, the New Castle Range appears to be the most utilized regio n. At all ranges, shortnose were detected throughout the study period, with most shortnose sturgeon detected in the project area between April and October. The report indicates that most adult shortnose sturgeon used the Torresdale to New Castle area as a short

- term migratory route rather than a long

- term concentration or foraging area. Adult sturgeon in th is region of the river are highly mobile, and as noted above, likely using the area as a migration route.

Information on the use of the river by ju veniles is lacking and the information available is extremely limited (i.e., 5 captures). As evidenced by the Crown Landing study, juvenile shortnose sturgeon96

have been documented between RM 81

- 74 from June

– November. Due to the limited geographic

scope of this study, it is difficult to use these results to predict the occurrence of juvenile shortnose sturgeon throughout the action area. However, the April

– August time frame is when flows in the Delaware River are highest and the time when the action a rea is likely to experience the low salinity levels preferred by juveniles (FERC 2005). Beginning in August, flows decrease and the salt wedge begins to move upstream, which may preclude juveniles from occurring in the action area. Based

on this informat ion, it is likely that juvenile shortnose sturgeon are present in the action area at least during the April

– August time frame. The capture of juvenile shortnose sturgeon in the RM 81

- 74 range in November of 2005 suggests that if water conditions are app ropriate, juveniles may also be present in this area through the fall. While it is possible, based on habitat characteristics, that this area of the river is used as an overwintering site for juveniles, there is currently no evidence to support this presu mption.

In 2005, the ACOE conducted investigations to determine the use of the Marcus Hook region by
sturgeon. Surveys for the presence of Atlantic and shortnose sturgeon were conducted between March 4 and March 25, 2005 primarily using a Video Ray ® Ex plorer submersible remotely operated vehicle (ROV). The Video Ray ® was attached to a 1.0 x 1.0 x 1.5 meter aluminum sled which was
towed over channel bottom habitats behind a 25

- foot research boat. All images captured by the
underwater camera were transm itted through the unit’s electronic tether and recorded on v ideo

c assettes. A total of 43 hours of bottom video were collected on 14 separate survey days. Twelve days of survey work were conducted at the Marcus Hook, Eddystone, Chester, and Tinicum range s, while two separate days of survey work were conducted up river near Trenton, New Jersey, at an area known to have an over wintering population of shortnose sturgeon.

The sled was generally towed on the bottom parallel to the centerline of the channel a nd into the current at 0.8 knots. Tow track logs were maintained throughout the survey and any fish seen on the ROV monitor was noted. Boat position during each video tow was recorded every five minutes with the vessel’s Furuno GPS. The Sony digital rec order recorded a time stamp that could be matched with the geographic coordinates taken from the on

- board GPS. Digital tapes were reviewed in a darkened laboratory at normal or slow speed using a high quality 28

- inch television
screen as a monitor. When a fish image was observed the tape was slowed and advanced frame by frame (30 images per second were recorded by the system). The time stamp where an individual fish was observed was recorded by the technician. Each fish was identified to the lowest prac tical taxon (usually species) and counted. A staff fishery biologist reviewed questionable images and species identifications. Distances traveled by the sled between time stamps were calculated based on the GPS coordinates recorded in the field during ea ch tow. Total fish counts between the recorded coordinates within a particular tow were converted to observed numbers per 100 meters of
tow track.

Limited 25

- foot otter trawling and gillnet sets were conducted initially to provide density data, and

later to provide ground truth information on the fish species seen in the video recording. Large boulders and other snags that tore the net and hung up the vessel early on in the study prompted abandoning this effort for safety reasons given the high degree of tanker traffic in the lower
Delaware River. The trawl net was a 7.6

- m (25

- foot) experimental semi

- balloon otter trawl with

44.5

- mm stretch mesh body fitted with a 3.2

- mm stretch mesh liner in the cod end. Otter trawls were generally conducted for five m inutes unless a snag or tanker traffic caused a reduction in tow97

time. Experimental gillnets were periodically deployed throughout the survey period in the Marcus Hook area. One experimental gillnet was 91.4

- m in length and 3

- m deep and was composed of s ix

15.2

- m panels of varying mesh size. Of the six panels in each net, two panels were 50.8

- mm stretch mesh, 2 panels were 101.6

- mm stretch mesh and two panels were 152.4

- mm stretch mesh. Another gillnet was 100 m in length and consisted of four 25 x 2

- m panels of 2.5

- 10.2

- cm stretched monofilament mesh in 2.5 cm increments. Gill nets were generally set an hour before slack high or
low water and allowed to fish for two hours as the nets had to be retrieved before maximum
currents were reached.

Turbidity in the Marcus Hook region of the Delaware River limited visibility to about 18 inches in front of the camera. However, despite the reduced visibility, several different fish species were recorded by the system including sturgeon. In general, fish that en countered the sled between the leading edge of the sled runners were relatively easy to distinguish. The major fish species seen in the video images were confirmed by the trawl and gillnet samples. In the Marcus Hook project area, a total of 39 survey mi les of bottom habitat were recorded in twelve separate survey days. Eight different species were observed on the tapes from a total of 411 fish encountered by the camera. White perch, unidentified catfish, and unidentified shiner were the most common tax a observed. Three unidentified sturgeon were seen on the tapes, two in the Marcus Hook Range, and one in the Tinicum Range. Although it could not be determined if these sturgeon were Atlantic or shortnose, gillnetting in the Marcus Hook anchorage produce d one juvenile Atlantic sturgeon that was 396 mm in total length, 342 mm in fork length, and weighed 250 g.

Water clarity in the Trenton survey area was much greater (about 6 feet ahead of the camera) and large numbers of shortnose sturgeon wer e seen in t he video recordings. In a total of 7.9 survey miles completed in two separate days of bottom imaging, 61 shortnose sturgeons were observed. To provide a comparative measure of project area density (where visibility was limited) to up river densities (whe re visibility was greater), each of the 61 sturgeon images were classified as to whether the individual fish was observed between the sled runners or whether they were seen ahead of the sled. Real time play backs of video recordings in the upriver sites i ndicated that the sturgeon did not react to the approaching sled until the cross bar directly in front of the camera was nearly upon it. Thirty of the 61 upstream sturgeon images were captured when the individual fish was between the runners. Using this criterion, approximately 10 times more sturgeon were encountered in the upriver area relative to the project site near Marcus Hook where three sturgeons were observed. Using the number of sturgeon observed per 100 meters of bottom surveyed, the relative

s turgeon density in the project area was several orders of magnitude less than those observed in the

Trenton area. As calculated in the report, t he relative density of unidentified sturgeon in the Marcus Hook area was 0.005 fish per 100 meters while the de nsities of shortnose sturgeon between the sled runners in the upriver area was 0.235 fish per 100 meters.

The results of the video sled survey in the Marcus Hook project area confirmed that sturgeons are using the area in the winter months. However, stur geon relative densities in the project area were much lower than those observed near Trenton, New Jersey, even when the upriver counts were adjusted for the higher visibility (i.e., between runner sturgeon counts). The sturgeons seen near

Trenton were ver y much concentrated in several large aggregations, which were surveyed in multiple passes on the two sampling dates devoted to this area. The lack of avoidance of the approaching sled seen in the upriver video recordings where water clarity was good sugge sts that98

little to no avoidance of the sled occurred in the low visibility downriver project area. Video surveys in the downriver project area did not encounter large aggregations of sturgeon as was observed in the upstream survey area despite having five times more sampling effort than the upstream area. This suggests that sturgeons that do occur in the Marcus Hook area during the
winter are more dispersed and that the overall number of shortnose sturgeon occurring in this area
in the winter months is lo w

.

As described in the “Description of the Action” section above, dredging will occur in six river

reaches (see Table 1 and 2 ). The discussion below will summarize the likely seasonal distribution of shortnose sturgeon in these river reaches. Based on the best available information, eggs and larvae are not likely to be in the action area. Due to the benthic, adhesive nature of the eggs, they only occur in the immediate vicinity of the spawning area, located at least 30 miles upstream of the

action are a. Larvae are also limited to an area close to the spawning grounds, and therefore, not likely to occur in the action area

. Distribution of adult and juvenile shortnose sturgeon in the action area is influenced by seasonal water temperature, the distribu tion of forage items, and salinity.

Although they have been documented in waters with salinities as high as 31 parts per thousand (ppt), shortnose sturgeon are typically concentrated in areas with salinity levels of less than 3 ppt (Dadswell et al. 1984 ). Jenkins et al. (1993) demonstrated in lab studies that 76 day old shortnose sturgeon experienced 100% mortality in salinity greater than 14 ppt. One year old shortnose sturgeon were able to tolerate salinity levels as high as 20 ppt for up to 18 hours but experienced 100% mortality at salinity levels of 30 ppt. A salinity of 9 ppt appeared to be a threshold at which significant mortalities began to occur, especially among the youngest f i sh (Jenkins et al. 1993)

. The distribution of salinity in the De laware estuary exhibits significant variability on both spatial and temporal scales, and at any given time reflects the opposing influences of freshwater inflow from
tributaries versus saltwater inflow from the Atlantic Ocean. The estuary can be divided i nto four longitudinal salinity zones. Starting at the downstream end, the mouth of the Bay to RM 34 is considered polyhaline (18

- 30ppt), RM 34

- 44 is mesohaline (5

- 18ppt), RM 44

- 79 is oligohaline (0.5

- 5ppt), and Marcus Hook (RM 79) to Trenton is considered Fresh (0.0

- 0.5ppt). Based on this information and the known tolerances and preferences of shortnose sturgeon to salinity, shortnose sturgeon are most likely to occur upstream of RM 44 (rkm 70) where salinity is typically less than 5ppt. As tolerance to salinity increases with age and size, large juveniles and adults are likely to be present through the mesohaline area extending to RM 34. Due to the typical high salinities experienced in the polyhaline zone (below RM 34 (rkm 55) ), shortnose sturgeon are likely to be r are in this reach of the river; this area covers part of Reach D and all of Reach E.

Both adult and juvenile shortnose sturgeon are likely to occur in reach AA (RM 102

- 97 (rkm 164

– 156) ) any time water temperatures are greater than 10°C ( the trigger for movement to overwintering areas) ; these temperatures are typically experienced between early April and m id

- late November 17

. S hortnose sturgeon in this reach are likely to be using it for migration and for opportunistic foraging. This reac h of the river is not known to be a concentration area for any life stage of shortnose sturgeon. Similarly, reach A (RM 97

- 85) is also likely to be used by migrating shortnose

17 For example, in 2004 temperatures reached 10°C on April 2 and dropped to 10°C on November 13. In 2005 temperatures were above 10°C between April 11 and November 23.99

sturgeon and for opportunistic foraging. This reach of the river includes the Torresdale Range (RM 93), an area which the 2003

- 2004 telemetry study noted above suggests may be a relatively high use area for shortnose sturgeon in the April

– October time frame. The number of shortnose sturgeon utilizing the Torresdale area suggests that conditions in Torresdale may support a shortnose

stur geon foraging or resting area; however, the tracking data indicates that shortnose sturgeon in this reach are highly mobile. Reach B (RM 85

- 67) encompasses the Cherry Island Flats and Marcus

Hook B ar areas. The capture of multiple shortnose sturgeon in this reach during the summer months (Shirey 1999 and 2006) indicates that shortnose sturgeon are likely to be foraging here in this summer and that it may serve as a summer concentration area. Evide nce also suggests that at least some shortnose sturgeon may overwinter near Marcus Hook, or that at least that some shortnose sturgeon are present in this area during the winter (Versar 2006 ; ERC 2012 ). As such, shortnose sturgeon could be present in Reac h B year round, with the highest numbers present when water temperatures are above 10°C between April and November. Reach C encompasses the area
from RM 67

- 55 and includes the New Castle range where the 2003

- 2004 telemetry studies indicated
was an area fr equented by shortnose sturgeon. This area also includes the outlet of the Chesapeake

Delaware canal which has been documented to be used by shortnose sturgeon moving between the upper Chesapeake Bay and the Delaware River. Based on the best available inf ormation, shortnose sturgeon are likely to be present in this reach of the river when water temperatures are greater than 10°C (mid April

– mid November). Reach D includes RM 55

- 41 and includes the area near Artificial Island. Shortnose sturgeon have occ asionally been recorded at the Salem Nuclear Generating Facility intakes with at least 10 live sturgeon observed at the trash racks between April and early November since 1979. One dead shortnose sturgeon was o bserved at the intake in January 1978 and one in late November 2007. However, due to the level of decomposition observed with these fish, it is unlikely that they died at the intakes or that they died during the winter months. Shortnose sturgeon are likely to at least occasionally occur in Reach D; however, the low number of documented occurrences in this reach combined with the higher salinity levels, make this reach less likely to be used than other upstream reaches. Reach E includes RM 41

- 5. Based on the best available information, including t he high salinity levels in this reach, shortnose sturgeon are expected to be rare in this reach ; however, occasional shortnose sturgeon may occur in this reach between late April and mid

- November.

4.13.3 Atlantic sturgeon in the Action Area
In the Delaw are River and Estuary, Atlantic sturgeon occur from the mouth of the Delaware Bay to the fall line near Trenton, NJ, a distance of 220 km (NMFS and USFWS, 1998; Simpson, 2008).

A ll historical Atlantic sturgeon habitats appear to be accessible in the Delaw are (NMFS and USFWS, 1998; ASSRT, 2007). Recent multi

- year studies have provided new information on the use of habitats by Atlantic sturgeon within the Delaware River and Estuary (Brundage, 2007; Simpson, 2008; Brundage and O’Herron, 2009; Fisher, 2009; C alvo et al. , 2010; Fox and Breece, 2010).

Historical records from the 1830's indicate Atlantic sturgeon may have spawned as far north as Bordentown, just below Trenton, NJ (Pennsylvania Commission of Fisheries, 1897). Cobb (1899) and Borden (1925) repor ted spawning between rkm 77 and 130 (Delaware City, DE to Chester City, PA). Based on recent tagging and tracking studies carried out from 2009

- 2011, Breece (2011) reports likely spawning locations at rkm 120

- 150 and rkm 170

- 190. The shift from historica l spawning sites is thought to be at least partially related to changes in the location of the salt line100

over time. Mature adults have been tracked in these areas at the time of year when spawning is expected to occur and movements have been consistent wi th what would be expected from spawning adults. Based on tagging and tracking studies, Simpson (2008) suggested that spawning habitat also exists from Tinicum Island (rkm 136) to the fall line in Trenton, NJ (rkm 211). To date, eggs and larvae have not b een documented to confirm that actual spawning is occurring in these

areas. However, as noted below, the recent documented presence of young of the year in the Delaware River provides confirmation that spawning is occurring in this river.

Sampling in 2009 that targeted YOY resulted in the capture of more than 60 YOY in the Marcus Hook anchorage (rkm 127) area during late October

- late November 2009 (Fisher, 2009; Calvo et al. , 2010). Twenty of the YOY from one study and six from the second study re ceived acoustic tags that provided information on habitat use by this early life stage (Calvo et al. , 2010; Fisher, 2011). YOY used several areas from Deepwater (rkm 105) to Roebling (rkm 199) during late fall to early spring. Some remained in the Marcus Hook area while others moved upstream, exhibiting migrations in and out of the area during winter months (Calvo et al. , 2010; Fisher, 2011). At least one YOY spent some time downstream of Marcus Hook (Calvo et al. , 2010; Fisher, 2011).
Downstream detectio ns from May to August between Philadelphia (rkm 150) and New Castle (rkm 100) suggest non

- use of the upriver locations during the summer months (Fisher, 2011). By September 2010, only 3 of 20 individuals tagged by DE DNREC persisted with active tags (Fish er, 2011). One of these migrated upstream to the Newbold Island and Roebling area (rkm 195), but
was back down in the lower tidal area within three weeks and was last detected at Tinicum Island (rkm 141) when the transmitter expired in October (Fisher, 20 11). The other two remained in the Cherry Island Flats (rkm 113) and Marcus Hook Anchorage area (rkm130) until their tags transmissions also ended in October (Fisher, 2011).

The Delaware Estuary is known to be a congregation area for sturgeon from multi ple DPSs. Generally, non

- natal late stage juveniles (also referred to as subadults) immigrate into the estuary in spring, establish home range in the summer months in the river, and emigrate from the estuary in the fall (Fisher, 2011). Subadults tagged and tracked by Simpson (2008) entered the lower Delaware Estuary as early as mid

- March but, more typically, from mid

- April through May. Tracked sturgeon remained in the Delaware Estuary through the late fall departing in November (Simpson, 2008).
Previous st udies have found a similar movement pattern of upstream movement in the spring

summer and downstream movement to overwintering areas in the lower estuary or nearshore ocean

in the fall

- winter (Brundage and Meadows, 1982; Lazzari et al. , 1986; Shirey et al. , 1997; 1999; Brundage and O’Herron, 2009; Brundage and O’Herron in Calvo et al. , 2010).

Brundage and O’Herron (in Calvo et al. (2010)) tagged 26 juvenile Atlantic sturgeon, including six young of the year. For non YOY fish, most detections occured in th e lower tidal Delaware River from the middle Liston Range (rkm 70) to Tinicum Island (rkm 141). For non YOY fish, these researchers also detected a relationship between the size of individuals and the movement pattern of
the fish in the fall. The fork le ngth of fish that made defined movements to the lower bay and ocean averaged 815 mm (range 651

- 970 mm) while those that moved towards the bay but were not detected below Liston Range averaged 716 mm (range 505

- 947 mm), and those that appear to have

remaine d in the tidal river into the winter averaged 524 mm (range 485

- 566 mm) (Calvo et al.

, 2010). During the summer months, concentrations of Atlantic sturgeon have been located in the Marcus Hook (rkm 123

- 129) and Cherry Island Flats (rkm 112

- 118) regions of the river (Simpson,101

2008; Calvo et al. , 2010) as well as near Artificial Island (Simpson, 2008). Sturgeon have also been detected using the Chesapeake and Delaware Canal (Brundage, 2007; Simpson, 2008).

Adult Atlantic sturgeon captured in marine wate rs off of Delaware Bay in the spring were tracked in an attempt to locate spawning areas in the Delaware River, (Fox and Breece, 2010 ; Breece 2011 ). Over the period of two sampling seasons (2009

- 2010) four of the tagged sturgeon were detected in
the Delawa re River. The earliest detection was in mid

- April while the latest departure occurred in

mid

- June (Fox and Breece, 2010) ; supporting the assumption that adults are only present in the river during spawning. The sturgeon spent relatively little time in the river each year, generally about 4 weeks, and used the area from New Castle, DE (rkm 100) to Marcus Hook (rkm 130) (Fox and Breece, 2010). A fifth sturgeon tagged in a separate study was also tracked and followed a similar timing pattern but traveled fart her upstream (to rkm 165) before exiting the river in early June (Fox and Breece, 2010).

Based on mixed

- stock analysis, we have determined that Atlantic sturgeon in the action area likely originate from the five DPSs at the following frequencies: Gulf o f Maine 7%; NYB 58%; Chesapeake Bay 18%; South Atlantic 17%; and Carolina 0.5%. In the action area, any eggs, larvae, or young of the year (juveniles) would only originate from the New York Bight DPS because these life stages are restricted to their natal river. Subadults from any of the five DPSs could be present in the action area in the proportions noted above; this life stage is most likely to be in the action area

from mid

- April to mid

- November although some subadults may overwinter in the river and be present year round. Adults are only likely to be present in the river for approximately a four week period from mid

- April to mid

- June, dependent on annual water temperature. Nearly all adults in the river are likely to originate from the New York Bigh t DPS, but tracking indicates that occasionally adults are present in rivers outside their DPS of origin.

Atlantic sturgeon are well distributed throughout the Delaware River and Bay and could be present year round in all of the river reaches; however, because of low tolerance to salinity, juveniles are restricted to waters above the salt line, which moves seasonally. Juveniles are only likely to be present in Reaches AA, A, B and upper portions of C. Based on the likely spawning sites at rkm

120

- 150 a nd 170

- 190, eggs are only likely to be present seasonally in reach B and upstream of reach AA. Larvae and YOY can also be present in Reaches AA, A, B and upper portions of reach

C. Subadults and adults could be present in any of the reaches.

5.0 ENVIR ONMENTAL BASELINE Environmental baselines for biological opinions include the past and present impacts of all state, federal or private actions and other human activities in the action area, the anticipated impacts of all proposed federal projects in the action area that have already undergone formal or early Section 7 consultation, and the impact of state or private actions that are contemporaneous with the consultation in process (50 CFR 402.02). The environmental baseline for this Opinion includes the effects of several activities that may affect the survival and recovery of the listed species in the action area. The activities that shape the environmental baseline in the action area of this consultation generally include: dredging operations, water qu ality, scientific research, shipping and
other vessel traffic and fisheries, and recovery activities associated with reducing those impacts.102

5.1 Federal Actions that have Undergone Formal or Early Section 7 Consultation
NMFS has undertaken several ESA section 7 consultations to address the effects of actions authorized, funded or carried out by Federal agencies . Each of those consultations sought to develop ways of reducing the probability of adverse impacts of the action on listed species.
Consultat ions are detailed below.

5.1.1 Delaware River

– Philadelphia to Trenton Federal Navigation Project

– Dredging
The Delaware River Philadelphia to Trenton Federal Navigation Channel is maintained by the

ACOE

. As explained in the Consultation History sec tion above, a batched consultation was completed in 1996 between NMFS and the ACOE on the effects of the ACOE’s authorization and completion of several Federal navigation projects, including the Philadelphia to Trenton project, as well as their regulatory dredging program. The Opinion was reinitiated in 1998 with an amendment issued in 1999. The amended Opinion included an Incidental Take Statement exempting the annual

take (entrainment and mortality) of four shortnose sturgeon, 4 loggerhead, 1 Kemp’s rid ley, and 1 green sea turtle. This take applies to the Philadelphia to Trenton project, maintenance of the 40

- foot Philadelphia to the Sea channel , and the ACOE regulatory program where private dredging
activities are authorized.

D redging in the Philad elphia to Trenton project has caused shortnose sturgeon mortality and may have affected shortnose sturgeon distribution and foraging habitat

. In mid

- March 1996, three subadult shortnose sturgeon were found in a dredge discharge pool on Money Island, near Newbold Island. The dead sturgeon were found on the side of the spill area into which the hydraulic pipeline dredge was pumping, and the presence of large amounts of roe in two specimens and minimal decomposition indicates that the fish were alive and in good condition prior to entrainment. In January 1998, three shortnose sturgeon were discovered in the hydraulic maintenance dredge spoil in the Florence to Trenton section of the upper Delaware River . These fish also appeared to have been alive and in go od condition prior to entrainment.

Dredging was being conducted in the Kinkora and Florence ranges when takes occurred ; this area is overlaps with where shortnose sturgeon are known to overwinter in large aggregations

. Since dredging involves removing t he bottom material down to a specified depth, the benthic environment could be severely impacted by dredging operations. As shortnose sturgeon are benthic species, the alteration of the benthic habitat could have affected sturgeon prey distribution and/or foraging ability. Since 1998 the ACOE has been avoiding dredging in the overwintering area during the time of year when shortnose sturgeon are present. Habitats affected by the Philadelphia to Trenton project include foraging, overwintering and nursery habitats. Since 1998, no sturgeon mortalities
have been observed.

5.1.2 Delaware River

– Philadelphia to the Sea Federal Navigation Project As noted in the Consultation History section, the existing 40 foot Philadelphia to the Sea navigation project is maintained with hopper and cutterhead dredges annually. As noted above, an Opinion
was issued in 1996 and amended in 1999 that considered the effects of the maintenance of this project on shortnose sturgeon and sea turtles. The Philadelphia District End angered Species Monitoring Program began in August 1992. Since that time, all hopper dredge operations conducted downstream of the Delaware Memorial Bridge between May and November have used endangered species observers to monitor for interactions with se a turtles. No shortnose or Atlantic103

sturgeon have been observed during any hopper dredging event. Several sea turtles have been entrained during hopper dredging operations including two loggerhead s in August 1993 and one loggerhead on June 22, 1994. Rel ocation trawling was conducted in 1994, and eight loggerheads were captured and relocated away from the channel. On November 13, 1995 one loggerhead was entrained by a hopper dredge working in the channel. On July 27, 2005, fresh loggerhead parts
were ob served in the hopper basket during two different loads. Outside of the disposal site inspectors working at upland disposal areas, no endangered species observers have been used during any cutterhead dredging operations for this project or at any hopper dr edge operation upstream of the Delaware Memorial Bridge.

The deepening project began in March 2010. Between March and September , 2010, approximately 3 million cy of material was removed via cutterhead dredge from reach C. The disposal site was inspect ed daily for evidence of entrained sturgeon. No shortnose sturgeon or their parts were observed during the dredging operations. Dredging to execute contract 2, Reach B began in
November 2011 and was completed in December 201 1 with approximately 1 million cy of material
removed

. N o sturgeon or their parts have been observed at the disposal site.

5.1.3 Crown Landing LNG Project On May 23, 2006 NMFS issued an Opinion to the Federal Energy Regulatory Commission (FERC)
and the ACOE regarding the effects of the issuance of an Order by FERC) to British Petroleum/Crown Landing LLC (Crown Landing) to site, construct and operate a Liquefied Natural Gas (LNG) import terminal on the banks of Delaware River and the effects of the US Army Corps of Engineers (ACOE) i ssuing two permits to Crown Landing for the construction of this facility. The Opinion included an ITS exempting the take (lethal entrainment in cutterhead dredge) of up to 3 shortnose sturgeon during the initial dredging needed to create the berthing are a and the death of up to an additional 3 shortnose sturgeon over the first ten years of maintenance dredging permitted by the ACOE. As explained in the “Effects of the Action” section of this Opinion, only transient shortnose sturgeon are likely to occur in the project area and all other effects on shortnose sturgeon and their habitat are likely to be insignificant or discountable. The Opinion also concluded that the project is not likely to alter the Delaware River in a way that would make the action are a unsuitable for use as a migratory pathway for any life stage of shortnose sturgeon. In the Opinion, NMFS concluded that the proposed action was not likely to adversely affect listed sea turtles. To date, the proposed project has not been constructed. Due to issues related to Coastal Zone Management Act consistency determinations, it is currently unknown whether the project will move forward as planned or whether it will be surrendered or modified.

5.1.4 Salem and Hope Creek Nuclear Generating Statio ns PSEG Nuclear operates two nuclear power plants pursuant to licenses issued by the US Nuclear Regulatory Commission (NRC). These facilities are the Salem and Hope Creek Generating Stations (Salem and HCGS), which are located on adjacent sites within a 740

- acre parcel of property at the southern end of Artificial Island in Lower Alloways Creek Township, Salem County, New Jersey. Salem Unit 1 will cease operations in 2036 and Salem Unit 2 will cease operations in 2040. Hope Creek is authorized to operat e until 2046.

Consultation pursuant to Section 7 of the ESA between NRC and NMFS on the effects of the operation of these facilities has been ongoing since 1979. A Biological Opinion was issued by104

NMFS in April 1980 in which NMFS concluded that the ong oing operation of the facilities was not likely to jeopardize the continued existence of shortnose sturgeon. Consultation was reinitiated in 1988 due to the documentation of impingement of sea turtles at the Salem facility. An Opinion was

issued on Janua ry 2, 1991 in which NMFS concluded that the ongoing operation was not likely to jeopardize shortnose sturgeon, Kemp’s ridley, green or loggerhead sea turtles. Consultation was reinitiated in 1992 due to the number of sea turtle impingements at the Salem i ntake exceeding the number exempted in the 1991 Incidental Take Statement. A new Opinion was issued on August 4, 1992. Consultation was again reinitiated in January 1993 when the number of sea turtle impingements exceeded the 1992 ITS with an Opinion iss ued on May 14, 1993. In 1998 the NRC requested that NMFS modify the Reasonable and Prudent Measures and Terms and Conditions of the ITS, and, specifically, remove a sea turtle study requirement. NMFS responded to this request in a letter dated January 21 , 1999. Accompanying this letter was a revised ITS which served to amend the May 14, 1993 Opinion. The 1999 ITS exempts the annual take (capture at intake with injury or mortality) of 5 shortnose sturgeon, 30 loggerhead sea turtles, 5 green sea turtles, and 5 Kemp’s ridleys. With the exception of 1991 and 1992, when 23 and 10 sea turtles were captured at the intakes, the actual level of take has been far lower than the exempted level. Inclusive of 1991 and 1992, for the period between 1979 and 1992, a t otal of 2 green, 23 Kemp’s ridley and 60 loggerheads have been captured at the intakes. Since monitoring of the intakes was initiated in 1978, 18 shortnose sturgeon have been recovered from the Salem intakes. No shortnose sturgeon or
sea turtles have bee n observed at the Hope Creek intakes. No sea turtles have been captured at Salem since 2001. Two Atlantic sturgeon, both previously dead, have been observed at the Salem intakes; none have been observed at the Hope Creek intakes. Consultation was reinit iated in 2011; we are currently in the process of preparing an updated Biological Opinion considering effects of ongoing operations on sea turtles , shortnose sturgeon and Atlantic sturgeon.

5.1.5 Emergency Clean

- Up Actions associated with the M/V Athos I Spill On November 26, 2004, during docking operations at the Citgo facility in Paulsboro, New Jersey (RM 90), the hull of the tank vessel M/V Athos I was punctured by a submerged object causing the discharge of approximately 473,000 gallons of crude oil (low aromatic, sweet, product code: 1267) into the Delaware River. The emergency cleanup action was initiated under US Coast Guard (USCG) oversight. Pursuant to the emergency consultation procedures outlined in Section 7 of the ESA, the USCG initiated em ergency consultation on the effects of the cleanup action on shortnose sturgeon. In a letter dated January 20, 2006, NMFS concluded that “while it is likely that the spill itself negatively impacted shortnose sturgeon in the Delaware River, likely by intr oducing contaminants into the environment and by altering normal behaviors, there is no evidence that suggests that the cleanup and response activities had an adverse affect on shortnose sturgeon. The removal of oil by mechanical means and the removal of oiled wildlife likely beneficially affected shortnose sturgeon as it minimized, to the extent possible, the potential for shortnose sturgeon to come into contact with the oil or to be contaminated by toxins through the food chain.” In this letter

NMFS con curred with the determination made by the USCG that the response activities associated with the November 26, 2004 spill of the M/V Athos I did not adversely affect shortnose sturgeon. No oiled sturgeon or sea turtles were documented during the spill or du ring clean up activities.

5.1.6 Scientific Studies There are currently four scientific research permits issued pursuant to Section 10(a) ( 1 ) (A) of the ESA, that authorize research on sturgeon in the Delaware River. The activities authorized under105

these permits are presented below.

Hal Brundage of Environmental Research and Consulting, Inc. holds a scientific research permit (#14604, which replaces his previously held permit #1486) authorizing research on relative abundance, reproduction, juvenile recr uitment, temporal and spatial distributions, and reproductive health of shortnose sturgeon. Methods would include capturing up to 1,000 adult and juvenile shortnose sturgeon annually via gill net, trammel net, and trawl net; measure; weigh; scan (for tags) ; PIT and Floy T

- bar tag; and sample tissue for genetic analysis. A subset of 30 adults and 30 juveniles annually will be tagged with acoustic transmitters. Another subset of 24 adults annually will be examined internally using laparoscopic techniques, blo od drawn for analysis, and a biopsy of the gonads taken. U p to 500 eggs and larvae will be collected by artificial substrate, D

- frame ichthyoplankton net, and/or epibenthic sled. The unintentional mortality of one adult or juvenile shortnose sturgeon is anticipated over the five year life of the permit. This permit expires on April 19, 2015

.

Mr. Brundage also holds a scientific research permit (#16438) authorizing research on Atlantic sturgeon. Mr. Brundage is authorized to capture and tag 384 juvenil e, subadult and adult Atlantic sturgeon as well as 500 Atlantic sturgeon eggs or larvae. The unintentional mortality of one adult or juvenile shortnose sturgeon is anticipated over the five year life of the permit. This permit expires on April 5, 2017.

Dr. Dewayne Fox of Delaware State University holds a scientific research permit (#16507) authorizing research on Atlantic and shortnose sturgeon. Dr. Fox is authorized to capture and tag 510 Atlantic sturgeon and 100 shortnose sturgeon as well as 300 At lantic sturgeon eggs. This permit expires on April 5, 2017. No mortality is authorized by this permit.

The Delaware Department of Natural Resources and Environmental Control (DNREC) holds a scientific research permit (#14396) authorizing research on s hortnose sturgeon. DNREC is authorized to capture, handle and tag 215 shortnose sturgeon. The unintentional mortality of one adult or juvenile shortnose sturgeon is anticipated over the five year life of the permit. This permit expires on December 13, 2 014.

5.1.7 Vessel Operations Potential adverse effects from federal vessel operations in the action area of this consultation include operations of the US Navy (USN) and the US Coast Guard (USCG), which maintain the largest federal vessel fleets, the E PA, the National Oceanic and Atmospheric Administration (NOAA), and the ACOE. NMFS has conducted formal consultations with the USCG, the USN, EPA and NOAA on their vessel operations. In addition to operation of ACOE vessels, NMFS has
consulted with the A COE to provide recommended permit restrictions for operations of contract or private vessels around whales. Through the section 7 process, where applicable, NMFS has and will continue to establish conservation measures for all these agency vessel operatio ns to avoid adverse effects to listed species. Refer to the biological opinions for the USCG (September 15, 1995; July 22, 1996; and June 8, 1998) and the USN (May 15, 1997) for detail on the scope of vessel operations for these agencies and conservation measures being implemented as standard operating procedures. No interactions with sturgeon or sea turtles have been reported with any of the vessels considered in these Opinions.106

5 .1. 8 Other Federally Authorized Actions
We have completed several inform al consultations on effects of in

- water construction activities in

the Delaware River permit ted by the ACOE. This includes several dock

, pier and bank stabilization projects. No interactions with shortnose or Atlantic sturgeon have been reported in asso ciation with any of these projects.

We have also completed several informal consultations on effects of private dredging projects permitted by the ACOE . All of the dredging was with a mechanical or cutterhead dredge. No
interactions with shortnose or Atlantic sturgeon have been reported in association with any of these projects.

5.2 State or Private Actions in the Action Area

5.2.1 State Authorized Fisheries
Atlantic and shortnose sturgeon

, and sea turtles may be vulnerable to capture, injury an d mortality in fisheries occurring in state waters. The action area includes portions of Pennsylvania, New Jersey and Delaware state waters within the Delaware River and Delaware Bay . Information on the number of sturgeon captured or killed in state fish eries is extremely limited and as such, efforts are currently underway to obtain more information on the numbers of sturgeon captured and killed in
state water fisheries . We are currently working with the Atlantic States Marine Fisheries Commission (ASMF C) and the coastal states to assess the impacts of state authorized fisheries on sturgeon. We anticipate that some states are likely to apply for ESA section 10(a)(1)(B) Incidental Take Permits to cover their fisheries; however, to date, no applications h ave been submitted. Below, we discuss the different fisheries authorized by the states and any available information on interactions between these fisheries and sturgeon.

American Eel American eel (

Anguilla rostrata ) is exploited in fresh, brackish and coastal waters from the southern tip of Greenland to northeastern South America. American eel fisheries are conducted primarily in tidal and inland waters. Eels are typically caught with hook and line or with eel traps and may also be caught with fyke n ets. Sturgeon and sea turtles are not known to interact with the eel fishery.

Atlantic croaker Atlantic croaker ( Micropogonias undulates ) occur in coastal waters from the Gulf of Maine to Argentina, and are one of the most abundant inshore bottom

- dwe lling fish along the U.S. Atlantic coast. Atlantic croaker are managed under an ASMFC ISFMP (including Amendment 1 in 2005 and Addendum 1 in 2010), but no specific management measures are required. Atlantic croaker are seasonally present in Delaware Bay; fishing occurs for this species in the Bay but not in the river.

Recreational fisheries for Atlantic croaker are likely to use hook and line; commercial fisheries targeting croaker primarily use otter trawls. The average annual bycatch of loggerhead s ea turtles in bottom otter trawl gear used in the Atlantic croaker fishery was estimated to be 70 loggerhead sea

turtles (Warden 2011) . Additional information on sea turtle interactions with gillnet gear, including gillnet gear used in the Atlantic croake r fishery, has also been recently published by Murray (2009a, 2009b). The average annual bycatch of loggerhead sea turtles in gillnet gear used in the Atlantic107

croaker fishery, based on VTR data from 2002

- 2006, was estimated to be 11 per year with a 95% C I
of 3

- 20 (Murray 2009b). A quantitative assessment of the number of Atlantic sturgeon captured in the croaker fishery is not available. Mortality rates of Atlantic sturgeon in commercial trawls has
been estimated at 5%. A review of the NEFOP database i ndicates that from 2006

- 2010, 60 Atlantic sturgeon (out of a total of 726 observed interactions) were captured during observed trips where the trip target was identified as croaker. This represents a minimum number of Atlantic sturgeon captured in the cro aker fishery during this time period as it only considers observed trips for boats with federal permits only. Because of the area where the fishery occurs, we do not anticipate any interactions with shortnose sturgeon.

Horseshoe crabs ASMFC manages ho rseshoe crabs through an Interstate Fisheries Management Plan that sets state quotas, and allows states to set closed seasons. Horseshoe crabs are present in Delaware Bay. In New Jersey, there is currently a moratorium on the harvest of horseshoe crabs an d horseshoe crab eggs for an indeterminate period of time. The law also prohibits the possession of horseshoe crabs and horseshoe crab eggs except for those individuals in possession of a scientific collecting permit, allowing them to possess horseshoe cr abs or horseshoe crab eggs for research or educational purposes only, and those fishermen utilizing horseshoe crabs as bait must provide adequate documentation that the horseshoe crabs in their possession were not harvested in New Jersey. In Delaware, lim ited harvest of horseshoe crabs is allowed. Delaware’s annual quota allocation is 100,000 male

- only horseshoe crabs ; with an open season of June 8

– December 31. Stein et al. (2004) examined bycatch of Atlantic sturgeon using the NMFS sea

- sampling/observ er database (1989

- 2000) and found that the bycatch rate for horseshoe crabs was very low, at 0.05%. Few Atlantic sturgeon are expected to be caught in the horeshoe crab fishery in the action area. Sea turtles are not known to be captured during horseshoe crab fishing. Shortnose sturgeon are unlikely to be captured in gear targeting horseshoe crabs given the location of fishing effort in the lower Bay.

Shad and River herring Shad and river herring (blueback herring ( Alosa aestivalis ) and alewives ( Alos a pseudoharengus )) are managed under an ASMFC Interstate Fishery Management Plan. In the action area , fishing for river herring is prohibited. Limited fishing effort for shad continues to occur. Recreational shad fishing is currently allowed within the Delaware River with hook and line only; commercial fishing for shad occurs with gill nets, but only in Delaware Bay. In the past, it was estimated that over 100 shortnose sturgeon were captured annually in shad fisheries in the Delaware River, with an

unk nown mortality rate (O’Herron and Able 1985). Nearly all captures occurred in the upper Delaware River, upstream of the action area. No recent estimates of captures or mortality of shortnose or Atlantic sturgeon are available

. In 2012, only one commerci al fishing license was granted for shad in New Jersey. S hortnose and Atlantic sturgeon continue be exposed to the risk of interactions with this fishery ; however, because increased controls have been placed on the shad fishery, impacts to shortnose and At lantic sturgeon are likely less than they were in the past.

Striped bass Striped bass are managed by ASMFC through Amendment 6 to the Interstate FMP, which requires minimum sizes for the commercial and recreational fisheries, possession limits for the r ecreational108

fishery, and state quotas for the commercial fishery (ASMFC 2003). Under Addendum 2, the coastwide striped bass quota remains the same, at 70% of historical levels. Data from the Atlantic Coast Sturgeon Tagging Database (2000

- 2004) shows that the striped bass fishery accounted for 43% of Atlantic sturgeon recaptures; however, no information on the total number of Atlantic sturgeon caught by fishermen targeting striped bass or the mortality rate is available.

Weakfish The weakfish fishery occurs in both state and federal waters but the majority of commercially and recreationally caught weakfish are caught in state waters (ASMFC 2002). The dominant commercial gears include gill nets, pound nets, haul seines, and trawls, with the majority of landings occurring in the fall and winter months (ASMFC 2002). Fishing for weakfish occurs in Delaware Bay.

As described in section 3.1.1, sea turtle bycatch in the weakfish fishery has occurred (Warden 2011; Murray 2009a, 2009b). The average annual bycatch of loggerhead sea turtles in bottom otter trawl gear used in the weakfish fishery was estimated to be 1 loggerhead sea turtle (Warden 2011)

. Additional information on sea turtle interactions with gillnet gear, including gillnet gear used in the

we akfish fishery, has also been recently published by Murray (2009a, 2009b). The average annual bycatch of loggerhead sea turtles in gillnet gear used in the weakfish fishery, based on VTR data
from 2002

- 2006, was estimated to be one (1) per year with a 95% CI of 0

- 1 (Murray 2009b).

A quantitative assessment of the number of Atlantic sturgeon captured in the weakfish fishery is not
available. A review of the NEFOP database indicates that from 2006

- 2010, 36 Atlantic sturgeon (out of a total of 726 observe d interactions) were captured during observed trips where the trip target was identified as weakfish. This represents a minimum number of Atlantic sturgeon captured in the weakfish fishery during this time period as it only considers observed trips, and mo st inshore
fisheries are not observed. An earlier review of bycatch rates and landings for the weakfish fishery reported that the weakfish

- striped bass fishery had an Atlantic sturgeon bycatch rate of 16% from
1989

- 2000; the weakfish

- Atlantic croaker fish ery had an Atlantic sturgeon bycatch rate of 0 .02%, and the weakfish fishery had an Atlantic sturgeon bycatch rate of 1.0% (ASSRT 2007).

American lobster trap fishery An American lobster trap fishery also occurs in Delaware Bay. This fishery is managed under the
ASMFC’s ISFMP. This fishery has also been identified as a source of gear causing injuries to and mortality of loggerhead and leatherback sea turtles as a result of entanglement in vertical buoy lines of the pot/trap gear. Between 2002 and 2008, t he lobster trap fishery in state waters was verified as the fishery involved in at least 27 leatherback entanglements in the Northeast Region. All entanglements involved the vertical line of the gear. These verified/confirmed entanglements

occurred in Maine, Massachusetts, and Rhode Island state waters from June through October (Northeast Region STDN database). While no entanglements in lobster gear have been reported for Delaware Bay, the potential for future entanglement exists. Atlantic and shortno se sturgeon are not known to interact with lobster trap gear.109

5.3 Other Impacts of Human Activities in the Action Area

5.3.1 Contaminants and Water Quality Historically, shortnose sturgeon were rare in the area below Philadelphia, likely as a result of poor water quality precluding migration further downstream. However, in the past 20 to 30 years, the water quality has improved and sturgeon have been found farther downstream. It is likely that
contaminants remain in the water and in the action area , albeit to reduced levels.

Point source discharges (i.e., municipal wastewater, industrial or power plant cooling water or waste water) and compounds associated with discharges (i.e., metals, dioxins, dissolved solids, phenols, and hydrocarbons) contri bute to poor water quality and may also impact the health of sturgeon populations. The compounds associated with discharges can alter the pH or receiving waters, which may lead to mortality, changes in fish behavior, deformations, and reduced egg producti on and
survival.

Sources of contamination in the action area include atmospheric loading of pollutants, stormwater runoff from coastal development, groundwater discharges, and industrial development. Chemical contaminants may also have an effect on sea t urtle reproduction and survival. While the effects of contaminants on turtles is relatively unclear, pollution may be linked to the fibropapilloma virus that kills many turtles each year (NMFS 1997). If pollution is not the causal agent, it may make sea turtles more susceptible to disease by weakening their immune systems.

Contaminants have been detected in Delaware River fish. PCBs have been detected in elevated levels in several species of fish. Large portions of the Delaware River is bordered by h ighly industrialized waterfront development. Sewage treatment facilities, refineries, manufacturing plants and power generating facilities all intake and discharge water directly from the Delaware River. This results in large temperature variations, heav y metals, dioxin, dissolved solids, phenols and hydrocarbons which may alter the pH of the water eventually leading to fish mortality. Industrialized development, especially the presence of refineries, has also resulted in storage and leakage of hazardous material into the Delaware River. Presently 13 Superfund sites have been identified in Marcus Hook and one dumpsite has yet to be labeled as a Superfund site, but does contain hazardous waste. It is possible that the presence of contaminants in the acti on area may have adversely affected shortnose sturgeon abundance, reproductive success and survival.

Several characteristics of shortnose sturgeon life history including long life span, extended residence in estuarine habitats, and being a benthic omn ivore, predispose this species to long term, repeated exposure to environmental contaminants and bioaccumulation of toxicants (Dadswell 1979). Toxins introduced to the water column become associated with the benthos and can be particularly harmful to bent hic organisms (Varanasi 1992) like sturgeon. Heavy metals and organochlorine compounds are known to accumulate in fat tissues of sturgeon, but their long term effects are not yet known (Ruelle and Henry 1992; Ruelle and Keenlyne 1993). Available data

sug gest that early life stages of fish are more susceptible to environmental and pollutant stress than older life stages (Rosenthal and Alderdice 1976). Although there have not been any studies to assess the impact of contaminants on shortnose sturgeon, elev ated levels of environmental contaminants, including chlorinated hydrocarbons, in several other fish species are associated with reproductive impairment (Cameron et al. 1992; Longwell et al. 1992), reduced egg viability (Von110

Westernhagen et al. 1981; Hanse n 1985; Mac and Edsall 1991), and reduced survival of larval fish (Berlin et al. 1981; Giesy et al. 1986). Some researchers have speculated that PCBs may reduce the shortnose sturgeon’s resistance to fin rot (Dovel et al. 1992).

Although there is scant information available on levels of contaminants in shortnose sturgeon tissues, some research on other, related species indicates that concern about effects of contaminants on the health of sturgeon populations is warranted. Detectable levels of chlordane , DDE, DDT, and dieldrin, and elevated levels of PCBs, cadmium, mercury, and selenium were found in pallid sturgeon tissue from the Missouri River (US Fish and Wildlife Service 1993). These compounds may affect physiological processes and impede a fish’s ability to withstand stress. PCBs are believed to adversely affect reproduction in pallid sturgeon (Ruelle and Keenlyne 1993). Ruelle and Henry (1992) found a strong correlation between fish weight r = 0.91, p < 0.01), fish fork length r = 0.91, p < 0.01 ), and DDE concentration in pallid sturgeon livers, indicating that DDE concentration increases proportionally with fish size.

Contaminant analysis was conducted on two shortnose sturgeon from the Delaware River in the fall of 2002. Muscle, liver, and go nad tissue were analyzed for contaminants (ERC 2002). Sixteen metals, two semivolatile compounds, three organochlorine pesticides, one PCB Aroclor, as well as polychlorinated dibenzo

- p

- dioxins (PCDDs), and polychlorinated dibenzofurans (PCDFs) were

detect ed in one or more of the tissue samples. Levels of aluminum, cadmium, PCDDs, PCDFs, PCBs and DDE (an organochlorine pesticide) were detected in the “ adverse effect ” range. It is of particular concern that of the above chemicals, PCDDs, DDE, PCBs and cadm ium, were detected as these have been identified as endocrine disrupting chemicals. While no directed studies of chemical contamination in shortnose sturgeon in the Delaware River have been undertaken, it is evident that the heavy industrialization of the Delaware River is likely adversely affecting this population.

Excessive turbidity due to coastal development and/or construction sites could influence sea turtle foraging ability. Turtles are not very easily affected by changes in water quality or i ncreased suspended sediments, but if these alterations make habitat less suitable for turtles and hinder their capability to forage, eventually they would tend to leave or avoid these less desirable areas (Ruben and Morreale 1999).

Marine debris ( e.g. , di scarded fishing line or lines from boats) can entangle turtles in the water and drown them. Turtles commonly ingest plastic or mistake debris for food. Chemical contaminants may also have an effect on sea turtle reproduction and survival. Excessive turb idity due to coastal development and/or construction sites could influence sea turtle foraging ability. As mentioned previously, turtles are not very easily affected by changes in water quality or increased suspended sediments, but if these alterations ma ke habitat less suitable for turtles and hinder their capability to forage, eventually they would tend to leave or avoid these less desirable areas (Ruben and Morreale 1999). Noise pollution has been raised, primarily, as a concern for marine mammals but may be a concern for other marine organisms, including sea turtles.

5.3.2 Private and Commercial Vessel Operations Private and commercial vessels, including fishing vessels, operating in the action area of this consultation also have the potential to in teract with sea turtles. Approximately 3,000 cargo vessels transit the Delaware River annually as well as numerous smaller commercial and recreational111

vessels. The effects of fishing vessels, recreational vessels, or other types of commercial vessels on listed species may involve disturbance or injury/mortality due to collisions or entanglement in
anchor lines. Sea turtles are known to be vulnerable to vessel strikes; however no estimate of the
number of vessel strikes in the action area is available.

There is limited information on the effects of vessel operations on shortnose sturgeon. It is generally assumed that as shortnose sturgeon are benthic species, that their movements are limited to the bottom of the water column and that vessels operating with sufficient navigational clearance would not pose a risk of ship strike. Shortnose sturgeon may not be as susceptible due to their smaller size in comparison to Atlantic sturgeon that are larger and for which ship strikes have been

documented more fre quently. However, anecdotal evidence suggests that shortnose sturgeon at least occasionally interact with vessels, as evidence by wounds that appear to be caused by propellers. There has been only one confirmed incidence of a ship strike on a shortnose s turgeon and 2 suspected ship strike mortalities. On November 5, 2008, in the Kennebec River, Maine, Maine Department of Marine Resources (MEDMR) staff observed a small (<20) ft boat transiting a known shortnose sturgeon overwintering area at high speeds. When MEDMR approached the area after the vessel had passed, a fresh dead shortnose sturgeon was discovered. The fish was collected for necropsy, which later confirmed that the mortality was the result of a propeller wound to the right side of the mouth a nd gills. The other two suspected ship strike mortalities occurred in the Delaware River. On June 8, 2008, a shortnose was collected near Philadelphia. The fish was necropsied and found to have suffered from blunt force trauma; though there was no abili ty to confirm whether the source of the trauma resulted from a vessel interaction. Lastly, on November 28, 2007, a shortnose sturgeon was collected on the trash racks of the Salem Nuclear Generating Facility. The fish was not necropsied, however, a patte rn of lacerations on the carcass suggested a possible vessel interaction. Aside from these incidents, no information on the characteristics of vessels that are most likely to interact with shortnose sturgeon is available and there is no

information on the rate of interactions , however it is assumed to be low.

As noted in the 2007 Status Review and the final listing rule s , vessel strikes have been identified as a threat to Atlantic sturgeon

. While the exact number of Atlantic sturgeon killed as a result of being struck by boat hulls or propellers is unknown, it is an area of concern. Brown and Murphy (2010) examined twenty

- eight dead Atlantic sturgeon observed in the Delaware River from 2005

- 2008. Fifty

- percent of the mortalities resulted from apparent vessel strikes and 71% of these (10 of 14) had injuries consistent with being struck by a large vessel (Brown and Murphy 2010). Eight of
the fourteen vessel

- struck sturgeon were adult

- sized fish (Brown and Murphy 2010). Given the time of year in which t he fish were observed (predominantly May through July; Brown and Murphy 2010), it is likely that many of the adults were migrating through the river to or from the spawning grounds.

The factors relevant to determining the risk to Atlantic sturgeon from v essel strikes are currently unknown, but they may be related to size and speed of the vessels, navigational clearance (i.e., depth of water and draft of the vessel) in the area where the vessel is operating, and the behavior of Atlantic sturgeon in the are a (e.g., foraging, migrating, etc.). It is unknown to what extent the mortalities documented by Brown and Murphy (2010) accurately characterize the extent of vessel strikes in the Delaware River, but as it is unlikely that all Atlantic sturgeon that died in the time period of the study were observed by the authors, it is likely that there are other undocumented112

mortalities resulting from vessel strikes as well as from other sources. Vessel interactions are thought to cause the death of several Atlantic st urgeon in the Delaware River each year.

6.0 C LIMATE CHANGE The discussion below presents background information on global climate change and information on past and predicted future effects of global climate change throughout the range of the listed

spe cies considered here. Additionally, we present the available information on predicted effects of climate change in the action area (i.e., the Delaware River and estuary) and how listed sea turtles and sturgeon may be affected by those predicted environmen tal changes over the life of the proposed action (i.e., between now and 2027). Generally speaking, c limate change may be relevant to the Status of the Species

, Environmental Baseline and Cumulative Effects sections of an Opinion; rather than include parti al discussion in several sections of this Opinion, we are synthesizing this
information into one discussion. Effects of the proposed action that are relevant to climate change are included in the Effects of the Action section below (section 7 .0 below).

6.1 Background Information on Global climate change The global mean temperature has risen 0.76oC (1.36°F) over the last 150 years, and the linear trend over the last 50 years is nearly twice that for the last 100 years (IPCC 2007a) and precipitation has increased nationally by 5%

- 10%, mostly due to an increase in heavy downpours (NAST 2000). There is a high confidence, based on substantial new evidence, that observed changes in marine systems are associated with rising water temperatures, as well as rel ated changes in ice cover, salinity, oxygen levels, and circulation. Ocean acidification resulting from massive amounts of carbon dioxide and other pollutants released into the air can have major adverse impacts on the
calcium balance in the oceans. Chan ges to the marine ecosystem due to climate change include shifts in ranges and changes in algal, plankton, and fish abundance (IPCC 2007b); these trends are most apparent over the past few decades. Information on future impacts of climate change in the

ac tion area is discussed below.

Climate model projections exhibit a wide range of plausible scenarios for both temperature and precipitation over the next century. Both of the principal climate models used by the National Assessment Synthesis Team (NAST) project warming in the southeast by the 2090s, but at different rates (NAST 2000): the Canadian model scenario shows the southeast U.S. experiencing a high degree of warming, which translates into lower soil moisture as higher temperatures increase

evapo ration; the Hadley model scenario projects less warming and a significant increase in precipitation (about 20%). The scenarios examined, which assume no major interventions to reduce continued growth of world greenhouse gases (GHG), indicate that temperat ures in the U.S. will rise by about 3 o

- 5 o C (5 o

- 9 o F) on average in the next 100 years which is more than the projected global increase (NAST 2000). A warming of about 0.2 o C (0.4°F) per decade is projected for the next two decades over a range of emission s cenarios (IPCC 2007). This temperature increase will very likely be associated with more extreme precipitation and faster evaporation of water, leading to greater frequency of both very wet and very dry conditions. Climate warming has resulted in increas ed precipitation, river discharge, and glacial and sea

- ice melting (Greene et al. 2008).

The past three decades have witnessed major changes in ocean circulation patterns in the Arctic, and these were accompanied by climate associated changes as well (G reene et al. 2008). Shifts in atmospheric conditions have altered Arctic Ocean circulation patterns and the export of freshwater113

to the North Atlantic (Greene et al. 2008, IPCC 2006). With respect specifically to the North Atlantic Oscillation (NAO), cha nges in salinity and temperature are thought to be the result of changes in the earth’s atmosphere caused by anthropogenic forces (IPCC 2006). The NAO impacts climate variability throughout the northern hemisphere (IPCC 2006). Data from the 1960s through the present show that the NAO index has increased from minimum values in the 1960s to strongly positive index values in the 1990s and somewhat declined since (IPCC 2006). This warming extends over 1000m (0.62 miles) deep and is deeper than anywhere in th e world oceans and is particularly evident under the Gulf Stream/ North Atlantic Current system (IPCC 2006). On a global scale, large discharges of freshwater into the North Atlantic subarctic seas can lead to intense stratification of the upper water col umn and a disruption of North Atlantic Deepwater (NADW) formation (Greene et al. 2008, IPCC 2006). There is evidence that the NADW has already freshened significantly (IPCC 2006). This in turn can lead to a slowing down of the global ocean thermohaline ( large

- scale circulation in the ocean that transforms low

- density upper ocean waters to higher density intermediate and deep waters and returns those waters back to the upper ocean), which can have climatic ramifications for the whole earth system (Greene e t al. 2008).

While predictions are available regarding potential effects of climate change globally, it is more difficult to assess the potential effects of climate change over the next few decades on coastal and marine resources on smaller geographic s cales, such as the Delaware River, especially as climate variability is a dominant factor in shaping coastal and marine systems. The effects of future change will vary greatly in diverse coastal regions for the U.S. Warming is very likely to continue in the U.S. over the next 25 to 50 years regardless of reduction in GHGs, due to emissions that have already occurred (NAST 2000). It is very likely that the magnitude and frequency of ecosystem changes will continue to increase in the next 25 to 50 years, a nd it is possible that the rate of change will accelerate. Climate change can cause or exacerbate direct stress on ecosystems through high temperatures, a reduction in water availability, and altered frequency of extreme events and severe

storms. Water t emperatures in streams and rivers are likely to increase as the climate warms and are very likely to have both direct and indirect effects on aquatic ecosystems. Changes in temperature will be most evident during low flow periods when they are of greatest concern (NAST 2000). In some marine and freshwater systems, shifts in geographic ranges and changes in algal, plankton, and fish abundance are associated with high confidence with rising water temperatures, as well as related changes in ice cover, salini ty, oxygen levels and circulation (IPCC 2007).

A warmer and drier climate is expected to result in reductions in stream flows and increases in water temperatures. Expected consequences could be a decrease in the amount of dissolved oxygen

in surface waters and an increase in the concentration of nutrients and toxic chemicals due to reduced flushing rate (Murdoch et al. 2000). Because many rivers are already under a great deal of stress due to excessive water withdrawal or land development, and this stress may be exacerbated by changes in climate, anticipating and planning adaptive strategies may be critical (Hulme 2005).

A warmer

- wetter climate could ameliorate poor water quality conditions in places where human

caused concentrations of nutrients an d pollutants other than heat currently degrade water quality (Murdoch et al. 2000). Increases in water temperature and changes in seasonal patterns of runoff will very likely disturb fish habitat and affect recreational uses of lakes, streams, and wetland s. Surface water resources in the southeast are intensively managed with dams and channels and almost all are affected by human activities; in some systems water quality is either below recommended levels or nearly so. A global analysis of the potential effects of climate change on114

river basins indicates that due to changes in discharge and water stress, the area of large river basins in need of reactive or proactive management interventions in response to climate change will be much higher for basins imp acted by dams than for basins with free

- flowing rivers (Palmer et al. 2008). Human

- induced disturbances also influence coastal and marine systems, often reducing the ability of the systems to adapt so that systems that might ordinarily be capable of respo nding to variability and change are less able to do so. Because stresses on water quality are associated with many activities, the impacts of the existing stresses are likely to be exacerbated by climate change. Within 50 years, river basins that are imp acted by dams or by extensive development may experience greater changes in discharge and water stress than unimpacted, free

- flowing rivers (Palmer et al. 2008).

While debated, researchers anticipate: 1) the frequency and intensity of droughts and floo ds will change across the nation; 2) a warming of about 0.2 o C (0.4°F) per decade; and 3) a rise in sea level (NAST 2000). A warmer and drier climate will reduce stream flows and increase water temperature resulting in a decrease of DO and an increase in t he concentration of nutrients and toxic chemicals due to reduced flushing. Sea level is expected to continue rising: during the 20th century global sea level has increased 15 to 20 cm (6

- 8 inches).

6.2 Species Specific Information on Climate Change Effe cts

6.2.1 Loggerhead Sea Turtles The most recent Recovery Plan for loggerhead sea turtles as well as the 2009 Status Review Report identifies global climate change as a threat to loggerhead sea turtles. However, trying to assess the likely effects of cl imate change on loggerhead sea turtles is extremely difficult given the uncertainty in all climate change models and the difficulty in determining the likely rate of temperature increases and the scope and scale of any accompanying habitat effects. Additi onally, no significant climate change

- related impacts to loggerhead sea turtle populations have been observed to date. Over the long

- term, climate change related impacts are expected to influence biological trajectories on a century scale (Parmesan and Yo he 2003). As noted in the 2009 Status Review (Conant et al. 2009), impacts from global climate change induced by human activities are likely to become more apparent in future years (Intergovernmental Panel on Climate Change (IPCC) 2007). Climate change r elated increasing temperatures, sea level rise, changes in ocean productivity, and increased frequency of storm events may affect loggerhead sea turtles.

Increasing temperatures are expected to result in rising sea levels (Titus and Narayanan 1995 in

Co nant et al. 2009), which could result in increased erosion rates along nesting beaches. Sea level rise could result in the inundation of nesting sites and decrease available nesting habitat (Daniels et al. 1993; Fish et al. 2005; Baker et al. 2006). The BRT noted that the loss of habitat as a result of climate change could be accelerated due to a combination of other environmental and oceanographic changes such as an increase in the frequency of storms and/or changes in prevailing currents, both of which could lead to increased beach loss via erosion (Antonelis et al. 2006; Baker
et al. 2006; both in Conant et al. 2009). Along developed coastlines, and especially in areas where erosion control structures have been constructed to limit shoreline movement, rising sea levels may cause severe effects on nesting females and their eggs as nesting females may deposit eggs seaward of the erosion control structures potentially subjecting them to repeated tidal inundation. However, if global temperatures increase a nd there is a range shift northwards, beaches not currently used for115

nesting may become available for loggerhead sea turtles, which may offset some loss of accessibility to beaches in the southern portions of the range.

Climate change has the potential to result in changes at nesting beaches that may affect loggerhead sex ratios. Loggerhead sea turtles exhibit temperature

- dependent sex determination. Rapidly increasing global temperatures may result in warmer incubation temperatures and highly female

b iased sex ratios ( e.g. , Glen and Mrosovsky 2004; Hawkes et al. 2009); however, to the extent that nesting can occur at beaches further north where sand temperatures are not as warm, these effects may be partially offset. The BRT specifically identified cl imate change as a threat to loggerhead sea turtles in the neritic/oceanic zone where climate change may result in future trophic changes, thus impacting loggerhead prey abundance and/or distribution. In the threats matrix analysis, climate change was cons idered for oceanic juveniles and adults and eggs/hatchlings. The report states that for oceanic juveniles and adults, “although the effect of trophic level change from...climate change...is unknown it is believed to be very low.” For eggs/hatchlings the repo rt states that total mortality from anthropogenic causes, including sea level rise resulting from climate change, is believed to be low relative to the entire life stage. However, only limited data are available on past trends related to climate effects o n loggerhead sea turtles; current scientific methods are not able to reliably predict the future magnitude of climate change, associated impacts, whether and to what extent some impacts will offset others, or the adaptive capacity of this species.

Howev er, Van Houtan and Halley (2011) recently developed climate forcing models to investigate loggerhead nesting (considering juvenile recruitment and breeding remigration) in the North Pacific
and Northwest Atlantic. These models found that climate condition s/oceanographic influences explain loggerhead nesting variability, with climate models alone explaining an average 60% (range
18%

- 88%) of the observed nesting changes over the past several decades. In terms of future nesting projections, modeled climate d ata show a future positive trend for Florida nesting, with increases through 2040 as a result of the Atlantic Multidecadal Oscillation signal.

6.2.2 Kemp’s Ridley Sea Turtles

The recovery plan for Kemp’s ridley sea turtles (NMFS et al. 2011) identifies climate change as a threat; however, as with the other species discussed above, no significant climate change

- related impacts to Kemp’s ridley sea turtles have been observed to date. Atmospheric warming could cause habitat alteration which may change food resources such as crabs and other invertebrates. It may increase hurricane activity, leading to an increase in debris in nearshore and offshore waters, which may result in an increase in entanglement, ingestion, or drowning. In addition, increased hurri cane activity may cause damage to nesting beaches or inundate nests with sea water. Atmospheric warming may change convergence zones, currents and other oceanographic features that are relevant to Kemp's ridleys, as well as change rain regimes and levels of nearshore runoff.

Considering that the Kemp’s ridley has temperature

- dependent sex determination (Wibbels 2003) and the vast majority of the nesting range is restricted to the State of Tamaulipas, Mexico, global warming could potentially shift populati on sex ratios towards females and thus change the reproductive ecology of this species. A female bias is presumed to increase egg production (assuming that the availability of males does not become a limiting factor) (Coyne and Landry 2007) and increase t he rate of recovery; however, it is unknown at what point the percentage of116

males may become insufficient to facilitate maximum fertilization rates in a population. If males become a limiting factor in the reproductive ecology of the Kemp's ridley, then r eproductive output in the population could decrease (Coyne 2000). Low numbers of males could also result in the loss of genetic diversity within a population; however, there is currently no evidence that this is a problem in the Kemp's ridley population ( NMFS et al. 2011). Models (Davenport 1997, Hulin and Guillon 2007, Hawkes et al. 2007, all referenced in NMFS et al. 2011) predict very long

- term reductions in fertility in sea turtles due to climate change, but due to the relatively long life cycle of

se a turtles, reductions may not be seen until 30 to 50 years in the future.

Another potential impact from global climate change is sea level rise, which may result in increased beach erosion at nesting sites. Beach erosion may be accelerated due to a co mbination of other environmental and oceanographic changes such as an increase in the frequency of storms and/or changes in prevailing currents. In the case of the Kemp’s ridley where most of the critical nesting beaches are undeveloped, beaches may shift landward and still be available for nesting. The Padre Island National Seashore (PAIS) shoreline is accreting, unlike much of the Texas coast, and with nesting increasing and the sand temperatures slightly cooler than at Rancho Nuevo, PAIS could

become a n increasingly important source of males for the population.

6.2.3 Green Sea Turtles The five year status review for green sea turtles (NMFS and USFWS 2007d) notes that global climate change is affecting green sea turtles and is likely to continue to b e a threat. There is an increasing female bias in the sex ratio of green turtle hatchlings. While this is partly attributable to imperfect egg hatchery practices, global climate change is also implicated as a likely cause . This is

because warmer sand te mperatures at nesting beaches are likely to result in the production of more female embryos. At least one nesting site, Ascension Island, has had an increase in mean sand temperature in recent years (Hays et al. 2003 in NMFS and USFWS 2007d). Climate cha nge may also affect nesting beaches through sea level rise, which may reduce the availability of nesting habitat and increase the risk of nest inundation. Loss of appropriate nesting habitat may also be accelerated by a combination of other environmental and oceanographic changes, such as an increase in the frequency of storms and/or changes in prevailing currents, both of which could lead to increased beach loss via erosion. Oceanic changes related to rising water temperatures could result in changes in the abundance and distribution of the primary food sources of green sea turtles, which in turn could result in changes in behavior and distribution of this species. Seagrass habitats may suffer from decreased productivity and/or increased stress due to se a level rise, as well as salinity and temperature changes (Short and Neckles 1999; Duarte 2002).

As noted above, the increasing female bias in green sea turtle hatchlings is thought to be at least partially linked to increases in temperatures at nesting beaches. However, at this time, we do not know how much of this bias is due to hatchery practice and how much is due to increased sand temperature. Because we do not have information to predict the extent and rate to which sand temperatures at the nesti ng beaches used by green sea turtles may increase in the short

- term future

, we cannot predict the extent of any future bias. Also, we do not know to what extent to which green sea turtles may be able to cope with this change by selecting cooler areas of t he beach or shifting their nesting distribution to other beaches at which increases in sand temperature may not be experienced.117

6.2.4 Leatherback sea turtles Global climate change has been identified as a factor that may affect leatherback habitat and biology (NMFS and USFWS 2007b); however, no significant climate change related impacts to leatherback sea turtle populations have been observed to date. Over the long term, climate change related impacts will likely influence biological trajectories in th e future on a century scale (Parmesan and Yohe 2003). Changes in marine systems associated with rising water temperatures, changes in ice cover, salinity, oxygen levels and circulation including shifts in ranges and changes in algal, plankton, and fish ab undance could affect leatherback prey distribution and abundance. Climate change is expected to expand foraging habitats into higher latitude waters and some concern has been noted that increasing temperatures may increase the female:male sex ratio of

hat chlings on some beaches (Morosovsky et al. 1984 and Hawkes et al. 2007 in NMFS and USFWS 2007b). However, due to the tendency of leatherbacks to have individual nest placement preferences and deposit some clutches in the cooler tide zone of beaches, the e ffects of long

- term climate on sex ratios may be mitigated (Kamel and Mrosovsky 2004 in NMFS and USFWS 2007b).

Additional potential effects of climate change on leatherbacks include range expansion and changes in migration routes as increasing ocean tem peratures shift range

- limiting isotherms north (Robinson
et al. 2008). Leatherbacks have expanded their range in the Atlantic north by 330 km in the last 17 years as warming has caused the northerly migration of the 15°C sea surface temperature (SST)

isot herm, the lower limit of thermal tolerance for leatherbacks (McMahon and Hays 2006). Leatherbacks are speculated to be the best able to cope with climate change of all the sea turtle species due to their wide geographic distribution and relatively weak be ach fidelity. Leatherback sea turtles may be most affected by any changes in the distribution of their primary jellyfish prey, which may affect leatherback distribution and foraging behavior (NMFS and USFWS 2007b). Jellyfish populations may increase due to ocean warming and other factors (Brodeur et al. 1999;
Attrill et al. 2007; Richardson et al. 2009). However, any increase in jellyfish populations may or may not impact leatherbacks as there is no evidence that any leatherback populations are currently

food

- limited.

I ncreasing temperatures are expected to result in rising sea levels (Titus and Narayanan 1995 in

Conant et al. 2009), which could result in increased erosion rates along nesting beaches. Sea level

rise could result in the inundation of nes ting sites and decrease available nesting habitat (Fish et al. 2005). This effect would potentially be accelerated due to a combination of other environmental and oceanographic changes such as an increase in the frequency of storms and/or changes in

preva iling currents. While there is a reasonable degree of certainty that climate change related effects will be experienced globally ( e.g. , rising temperatures and changes in precipitation patterns), due to a lack of scientific data, the specific effects of c limate change on this species are not quantifiable at this time (Hawkes et al. 2009).

6.2.5 Shortnose sturgeon

Global climate change may affect shortnose sturgeon in the future. Rising sea level may result in the salt wedge moving upstream in affecte d rivers . Shortnose sturgeon spawning occurs in fresh water reaches of rivers because early life stages have little to no tolerance for salinity. Similarly, juvenile shortnose sturgeon have limited tolerance to salinity and remain in waters with little t o no salinity. If the salt wedge moves further upstream, shortnose sturgeon spawning and rearing habitat118

could be restricted. In river systems with dams or natural falls that are impassable by sturgeon, the extent that spawning or rearing may be shifted upstream to compensate for the shift in the movement of the saltwedge would be limited. While there is an indication that an increase in sea level rise would result in a shift in the location of the salt wedge, for most spawning rivers there are no predic tions on the timing or extent of any shift s that may occur ; thus, it is not possible to predict any future loss in spawning or rearing habitat. However, in all river systems, spawning occurs miles upstream of the saltwedge. It is unlikely that shifts in the location of the saltwedge would eliminate freshwater spawning or rearing habitat. If habitat was severely restricted, productivity or survivability may decrease.

The increased rainfall predicted by some models in some areas may increase runoff and scour spawning areas and flooding events could cause temporary water quality issues. Rising temperatures predicted for all of the U.S. could exacerbate existing water quality problems with DO and temperature. While this occurs primarily in rivers in the southeast U.S. and the Chesapeake Bay, it may start to occur more commonly in the northern rivers. Shortnose sturgeon are tolerant to water temperatures up to approximately 28°C (82.4°F); these temperatures are experienced naturally in some areas of rive rs during the summer months. If river temperatures rise and temperatures above 28°C are experienced in larger areas, sturgeon may be excluded from some
habitats.

Increased droughts (and water withdrawal for human use) predicted by some models in some a reas may cause loss of habitat including loss of access to spawning habitat. Drought conditions in the spring may also expose eggs and larvae in rearing habitats. If a river becomes too shallow or flows become intermittent, all shortnose sturgeon life st ages, including adults, may become susceptible to strandings. Low flow and drought conditions are also expected to cause additional water quality issues. Any of the conditions associated with climate change are likely to disrupt river ecology causing shi fts in community structure and the type and abundance of prey. Additionally, cues for spawning migration and spawning could occur earlier in the season causing a mismatch in prey that are currently available to developing shortnose sturgeon in rearing hab itat ; however, this would be mitigated if prey species also had a shift in distribution or if developing sturgeon were able to shift their diets to other species.

6.2.6 Atlantic sturgeon Global climate change may affect all DPSs of Atlantic sturgeon i n the future ; however, effects of increased water temperature and decreased water availability are most likely to effect the South
Atlantic and Carolina DPSs . Rising sea level may result in the salt wedge moving upstream in
affected rivers . Atlantic stu rgeon spawning occurs in fresh water reaches of rivers because early life stages have little to no tolerance for salinity. Similarly, juvenile Atlantic sturgeon have limited tolerance to salinity and remain in waters with little to no salinity. If the sa lt wedge moves further upstream, shortnose sturgeon spawning and rearing habitat could be restricted. In river systems with dams or natural falls that are impassable by sturgeon, the extent that spawning or rearing may be shifted upstream to compensate fo r the shift in the movement of the saltwedge would be limited.
While there is an indication that an increase in sea level rise would result in a shift in the location of the salt wedge, at this time there are no predictions on the timing or extent of any shift s that may

occur ; thus, it is not possible to predict any future loss in spawning or rearing habitat. However, in all river systems, spawning occurs miles upstream of the saltwedge. It is unlikely that shifts in the119

location of the saltwedge would eliminate freshwater spawning or rearing habitat. If habitat was severely restricted, productivity or survivability may decrease.

The increased rainfall predicted by some models in some areas may increase runoff and scour spawning areas and flooding ev ents could cause temporary water quality issues. Rising temperatures predicted for all of the U.S. could exacerbate existing water quality problems with DO and temperature. While this occurs primarily in rivers in the southeast U.S. and the Chesapeake

Ba y, it may start to occur more commonly in the northern rivers. Atlantic sturgeon prefer water temperatures up to approximately 28°C (82.4°F); these temperatures are experienced naturally in some areas of rivers during the summer months. If river temperat ures rise and temperatures above 28°C are experienced in larger areas, sturgeon may be excluded from some habitats.

Increased droughts (and water withdrawal for human use) predicted by some models in some areas may cause loss of habitat including loss o f access to spawning habitat. Drought conditions in the spring may also expose eggs and larvae in rearing habitats. If a river becomes too shallow or flows become intermittent, all Atlantic sturgeon life stages, including adults, may become susceptible t o strandings or habitat restriction . Low flow and drought conditions are also expected to cause additional water quality issues. Any of the conditions associated with climate change are likely to disrupt river ecology causing shifts in community structur e and the type and abundance of prey. Additionally, cues for spawning migration and spawning could occur earlier in the season causing a mismatch in prey that are currently available to developing sturgeon in rearing habitat

.

6. 3 Effects of Climate Change in the Action Area Available information on climate change related effects for the Delaware River largely focuses on effects that rising water levels may have on the human environment (Barnett et al. 2009) and the availability of water for human us e (e.g., Ayers et al. 1994). Documents prepared by ACOE for the deepening project have considered climate change (ACOE 2009, 2011), with a focus on sea level rise and a change in the location of the salt line.

Kreeger et al. (2010) considers effects of climate change on the Delaware Estuary. Using the average of 14 models, an air temperature increase of 1.9

- 3.7°C over this century is anticipated, with the amount dependent on emissions scenarios. No predictions related to increases in river water
tempe rature are provided. There is also a 7

- 9% increase in precipitation predicted as well as an increase in the frequency of short term drought, a decline in the number of frost days, and an increase in growing season length predicted by 2100.

The report no tes that t he Mid

- Atlantic States are anticipated to experience sealevel rise greater than the global average (GCRP, 2009). While the global sea level rise is largely attributed to melting ice sheets and expanding water as it warms, there is regional varia tion because of gravitational forces, wind, and water circulation patterns. In the Mid

- Atlantic region, changing water circulation patterns are expected to increase sea

- level by approximately 10 cm over this century (Yin et al.,
2009 in Kreeger et al. 201 0 ). Subsidence and s ediment a ccretion also influence sea level rise in the

Mid

- Atlantic, including in the Delaware estuary. As described by Kreeger, p ostglacial settling of the land masses has occurred in the Delaware system since the last Ice Age. This settling causes a steady loss of elevation, which is called subsidence. Through the next century, subsidence is estimated to hold at an average 1

- 2 mm of land elevation loss per year (Engelhart et al., 2009 in120

Kreeger et al. 2010 ). Rates of subsidence and accretion vary in different areas around the Delaware Estuary, but the greatest loss of shoreline habitat is expected to occur where subsidence is naturally high in areas that cannot accrete more sediments to compensate for elevation loss plus absolute se a

level rise. The net increase in sea

- level compared to the change in land elevation is referred to as the
rate of relative sea

- level rise (RSRL). Kreeger states that the b est estimate for RSLR by the end of the century is 0.8 to 1.7 m in the Delaware Est uary.

Sea level rise combined with more frequent droughts and increased human demand for water are predicted to result in a northward movement of the salt wedge in the Delaware River (Collier 2011). Currently , the normal average location of the salt we dge is at approximately river mile 7 1 . Collier predicts that without mitigation (e.g., increased release of flows into downstream areas of the river), at high tide in the peak of the summer during extreme drought conditions, the salt line could be as

far upstream as river mile 114 (rkm 183) in 2050 and 117 (rkm 188) in 2100. The farthest north the salt line has historically been documented was approximately river mile 103 during a period of severe drought in 196 5 ; thus, he predicts that over time, during certain extreme conditions, the salt line could shift up to 11 miles further upstream by 2050 and 14 miles further upstream by 2100

.

A hydrologic model for the Delaware River, incorporating predicted changes in temperature and precipitation was compiled by Hassell and Miller (1999). The model results indicate that when only the temperature increase is input to the hydrologic model, the mean annual streamflow decreased, the winter flows increased due to increased snowmelt, and the mean position of the sa lt front moved upstream. When only the precipitation increase was input to the hydrologic model, the mean annual streamflow increased, and the mean position of the salt front moved further downstream. However, when both the temperature and precipitation increase were input to the hydrologic model the mean annual streamflow changed very little, with a small increase during the first four months of the year.

Water temperature in the Delaware River varies seasonally. A 2007 examination of long

- term
trends in Delaware River water temperature shows no indication of any long

- term trends in these seasonal changes (BBL Sciences 2007). Monthly mean temperature in 2001 compares almost identically to long

- term monthly mean temperatures for the period from 1964 to 2000, with lowest temperatures recorded in April (10

– 11°C) and peak temperatures observed in August (approximately 26

– 27°C). While water temperature rises have been observed in other mid

- Atlantic rivers (e.g., a 2°C increase in the Hudson River from the 1 960s to 2000s ( Pisces 2008 ) ), a similar trend does not currently appear in the Delaware River.

6. 4 Effects of Climate Change in the Action Area to Atlantic and shortnose sturgeon As there is significant uncertainty in the rate and timing of change as well as the effect of any changes that may be experienced in the action area due to climate change, it is difficult to predict the impact of these changes on shortnose and Atlantic sturgeon ; however, we have considered the
available information to consider likely impacts to sturgeon in the action area . The proposed action under consideration of the continuation of the deepening project through January 2017 and 10 years of maintenance dredging; thus, we consider here, likely effects of climate change during the period
from now until 2027.

Over time, the most likely effect to shortnose and Atlantic sturgeon would be if sea level rise was great enough to consistently shift the salt wedge far enough north which would restrict the range of121

juvenile sturgeon and may affect the development of these life stages. Upstream shifts in spawning or rearing habitat in the Delaware River are not limited by any impassable falls or manmade barriers. Habitat that is suitable for spawning is known to be present upstream o f the areas that are thought to be used by shortnose and Atlantic sturgeon suggesting that there may be some capacity for spawning to shift further upstream to remain ahead of the saltwedge. Based on predicted upriver shifts in the saltwedge, areas where Atlantic sturgeon currently spawn could, over time, become too saline to support spawning and rearing. Modeling conducted by the ACOE indicates that this is unlikely to occur before 2040 but modeling conducted by Collier (2011) suggests that by 2100 areas where spawning is thought to occur (rkm 120

- 150 and 170

- 190), may be too salty and spanwing would need to shift further north. Given the availability of spawning habitat in the river, it is unlikely that the saltwedge would shift far enough upstream to r esult in a significant restriction of spawning or nursery habitat. The available habitat for juvenile sturgeon could decrease over time; however, even if the saltwedge shifted several miles upstream, it seems unlikely that the decrease in
available habita t would have a significant effect on juvenile sturgeon.

In the action area, it is possible that changing seasonal temperature regimes could result in changes in the timing of seasonal migrations through the area as sturgeon move throughout the river. T here could be shifts in the timing of spawning; presumably, if water temperatures warm earlier in the spring, and water temperature is a primary spawning cue, spawning migrations and spawning events could occur earlier in the year. However, because spawni ng is not triggered solely by water temperature, but also by day length (which would not be affected by climate change) and river flow (which could be affected by climate change), it is not possible to predict how any change in water temperature or river f

low alone will affect the seasonal movements of sturgeon through the action

area. However, it seems most likely that spawning would shift earlier in the year.

Any forage species that are temperature dependent may also shift in distribution as water

tem peratures warm. However, because we do not know the adaptive capacity of these individuals or how much of a change in temperature would be necessary to cause a shift in distribution, it is not possible to predict how these changes may affect foraging stur geon. If sturgeon distribution shifted along with prey distribution, it is likely that there would be minimal, if any, impact on the availability of food. Similarly, if sturgeon shifted to areas where different forage was available and sturgeon were able to obtain sufficient nutrition from that new source of forage, any effect would be minimal. The greatest potential for effect to forage resources would be if sturgeon shifted to an area or time where insufficient forage was available; however, the likelih ood of this happening seems low because sturgeon feed on a wide variety of species and in a wide variety of habitats.

Limited information on the thermal tolerances of Atlantic and shortnose sturgeon is available. Atlantic sturgeon have been observed in w ater temperatures above 30°C in the south (see Damon

Randall et al. 2010); in the wild, shortnose sturgeon are typically found in waters less than 28°C. In the laboratory, juvenile Atlantic sturgeon showed negative behavioral and bioenergetics responses ( related to food consumption and metabolism) after prolonged exposure to temperatures greater than 28°C (82.4°F) (Niklitschek 2001). Tolerance to temperatures is thought to increase with age and body size (Ziegweid et al. 2008 and Jenkins et al. 1993), how ever, no information on the lethal thermal maximum or stressful temperatures for subadult or adult Atlantic sturgeon is available. Shortnose sturgeon, have been documented in the lab to experience mortality at temperatures of 33.7°C (92.66°F) or greater a nd are thought to experience stress at temperatures above 28°C. For122

purposes of considering thermal tolerances, we consider Atlantic sturgeon to be a reasonable surrogate for shortnose sturgeon given similar geographic distribution and known biological

si milarities.

Mean monthly ambient temperatures in the Delaware estuary range from 11

- 27°C from April

– November, with temperatures lower than 11°C from December

- March. No estimates of a predicted rise in water temperatures for the Delaware River is availa ble. A predicted increase in water temperature of 3

- 4 °C within 100 years is predicted in the Hudson River. If we assume that a similar rate of change would be experienced in the Delaware River, we would expect an increase of less
than 1°C between now and 2027. This could result in temperatures approaching the preferred temperature of shortnose and Atlantic sturgeon (28°C) on more days and/or in larger areas. This could result in shifts in the distribution of sturgeon out of certain areas during the warm er months. Information from southern river systems suggests that during peak summer heat, sturgeon are most likely to be found in deep water areas where temperatures are coolest. Thus, we could expect that over time, sturgeon would shift out of shallow habitats on the warmest days. This could result in reduced foraging opportunities if sturgeon were foraging in shallow waters.

As described above, over the long term, global climate change may affect shortnose and Atlantic sturgeon by affecting the locat ion of the salt wedge, distribution of prey, water temperature and water quality. However, there is significant uncertainty, due to a lack of scientific data, on the degree to which these effects may be experienced and the degree to which shortnose or Atl antic sturgeon will be able to successfully adapt to any such changes. Any activities occurring within and outside the action area that contribute to global climate change are also expected to affect shortnose and Atlantic sturgeon in the action area. Wh ile we can make some predictions on the likely effects of climate change on these species, without modeling and additional scientific data these predictions remain speculative. Additionally, these predictions do not take into account the adaptive capacity of these species which may allow them to deal with change better than predicted.

6. 5 Effects of Climate Change in the Action Area on Sea Turtles As there is significant uncertainty in the rate and timing of change as well as the effect of any changes t hat may be experienced in the action area due to climate change, it is difficult to predict the impact of these changes on sea turtles; however, we have considered the available information to consider likely impacts to these species in the action area. T he proposed action under consideration of the continuation of the deepening project through January 2017 and 10 years of maintenance dredging; thus, we consider here, likely effects of climate change during the period
from now until 2027. S ea turtles are most likely to be affected by climate change due to increasing sand temperatures at nesting beaches which in turn would result in increased female:male sex ratio among hatchlings, sea level rise which could result in a reduction in available nesting beach habitat, increased risk of nest inundation, changes in the abundance and distribution of forage species which could result in changes in the foraging behavior and distribution of sea turtle species

, and changes in water temperature which could possibly le ad to a northward shift in their range.

Over the time period considered in this Opinion, sea surface temperatures are expected to rise less than 1°C. It is unknown if that is enough of a change to contribute to shifts in the range or

distribution of se a turtles. Theoretically we expect that as waters in the action area warm, more sea turtles could be present or sea turtles could be present for longer periods of time. However, if123

temperature affected the distribution of sea turtle forage in a way that decreased forage in the action area, sea turtles may be less likely to occur in the action area. It has been speculated that the nesting range of some sea turtle species may shift northward. Nesting in the mid

- Atlantic generally is extremely rare and no nesting has been documented at any beach in the action area. In 2010, one green sea turtle came up on the beach in Sea Isle City, New Jersey; however, it did not lay any eggs. In August 2011, a loggerhead came up on the beach in Stone Harbor, New Jersey but did not lay any eggs. On August 18, 2011, a green sea turtle laid one nest at Cape Henlopen Beach in Lewes Delaware near the entrance to Delaware Bay. The nest contained 190 eggs and was transported indoors to an incubation facility on October 7. A total of twelve eggs hatched, with eight hatchlings surviving. In December, seven of the hatchlings were released in Cape Hatteras, North Carolina. It is important to consider that in order for nesting to be successful in the mid

- Atlantic, fall and winte r temperatures need to be warm enough to support the successful rearing of eggs and sea temperatures must be warm enough for hatchlings not to die when they enter the water. Predicted increases in water temperatures between now and 2027 are not great enou gh to allow successful rearing of sea turtle eggs in the action area. Therefore, it is unlikely that over the time period considered here, that there would be an increase in nesting activity in the action area or that

h atchlings would be present in the ac tion area.

We have considered whether the disposal of sand at Broadkill Beach and Kelly Island would impact sea turtles. As noted above, there is the potential for a northward shift in nesting by sea turtles. Given existing nesting locations and the relatively short duration of time considered in this Opinion (15 years), it seems extremely unlikely that the range of leatherback or Kemp’s ridley sea turtle nesting would shift enough so that nesting would occur on beaches in Delaware Bay. The furthest north that leatherbacks nest is southeastern Florida. Kemp’s ridleys only nest in Mexico. It is more likely that any shift in nesting to Delaware Bay beaches would be from loggerheads (which nest as far north as Virginia) and/or green sea turtles (which normally nest as far north as North Carolina. The disposal of material at Broadkill Beach and Kelly Island is meant to stabilize and restor e eroding habitats and maintain existing beach. None of the activity is likely to reduce the suitability

of these beaches for potential future nesting.

7.0 EFFECTS OF THE ACTION
This section of a n Opinion assesses the direct and indirect effects of the proposed action on threatened and endangered species or critical habitat, together with the effects of other activ ities that are interrelated or interdependent (50 CFR 402.02). Indirect effects are those that are caused later in time, but are still reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend upon the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration (50 CFR 402.02). We have not identified any interdependent or interrelated actions. This Opinion examines the li kely effects (direct and indirect) of the proposed action on shortnose sturgeon, f ive DPSs of Atlantic
sturgeon, and sea turtles in the action area and their habitat within the context of the species status now and projected over the course of the action

, the environmental baseline and cumulative effects. As explained in the Description of the Action, the action under consideration in this Opinion is the ongoing initial dredging cycle needed to deepen the channel which will be conducted through January 201 7 , the disposal of dredged material resulting from this dredging, including beneficial use of material at Broadkill Beach and Kelly Island, blasting of rock material at Marcus Hook and subsequent removal with a mechanical dredge , as well as 10 years of mai ntenance dredging.124

As explained in the Description of the Action section above, both hydraulic cutterhead and hopper dredges will be used for the initial deepening

. It is also possible that a mechanical dredge could be
used in Reach AA. Refer to Table 2 and Figure 2 in the “ Description of th e Action ” section for a summary of the proposed dredging by reach. The effects of dredging on listed species will be different depending on the type of dredge used and the geographical area where dredging will

occur . As such, the following discussion of effects of dredging will be organized by dredge type. Below, the discussion will consider the effects of dredging, including the risk of entrainment or capture of Atlantic sturgeon, shortnose sturgeon and sea turtle s . We also consider effects of dredging and disposal on water quality, including turbidity/suspended sediment and effects of dredge vessel traffic. Following, there is a discussion of blasting and associated debris removal with a mechanical dredge. Las t, there is a discussion of other effects of the project which are not specific to the type of equipment used. This includes effects on prey and foraging and changes in the characteristics of the river (i.e., sediment type, location of the salt wedge). W e also consider effects of 10 years of maintenance dredging.

7.1 Hopper Dredge A large self

- propelled hopper dredge will be used for dredging in Reach E and may also be used in Reach AA, A and D. At Reach A, dredging is scheduled over approximately six months from August 201 2

- February 2013 (1,666,600cy to be removed ) ; at this time it is unknown if a cutterhead or a hopper dredge will be used . Dredging at Reach E will occur with a hopper dredge

, with disposal at Broadkill Beach (1,598,700 cy) is schedul ed for September

– Decembe r 201 3; dredging at Reach E will also occur with disposal at Kelly Island (2,483,000 cy) between April and August

2015

. Dredging at Reach AA will be with a cutterhead or hopper dredge and will remove 994,000 cy from August

– Nove mber 2014. Dredging at Reach D is likely to be with a hopper dredge but could occur with a cutterhead dredge; dredging will occur from December 2012

– June 2013.

7.1.1 Entrainment in Hopper Dredges

– Sea Turtles As outlined above, sea turtles are like ly to occur in Delaware Bay from May through mid

November each year with the largest numbers present from June through October of any year (Stetzar 2002). The majority of sea turtles in the Delaware Estuary are juvenile loggerheads; however, adult loggerh eads, juvenile Kemp’s ridley, adult and juvenile leatherback and adult green

sea turtles have also been documented in the area . The Delaware Estuary is an important foraging area for sea turtles and an important developmental habitat for juvenile sea turt les, particularly loggerheads. The only dredging operations that are scheduled to occur in the geographic region of the action area where sea turtles are likely to occur are deepening and maintenance in Reaches D
and E. No sea turtles occur in Reach A or AA so no sea turtles will be exposed to effects of hopper dredging carried out in Reach A or AA

.

Deepening will remove 2,051,100 cy from Reach D and a total of 4,981,700 cy from Reach E. Dredging is scheduled in Reach D from December 2012

– June 2013 and in Reach E from September

– December 2013 and April

– August 2015. Exact scheduling is dependent on funding and availability of dredge equipment.

L oggerhead, Kemp’s ridley and green sea turtles are vulnerable to entrainment in the draghead of

the h opper dredge . Given their large size, leatherback sea turtles are not vulnerable to entrainment.125

As reported by ACOE, no leatherback sea turtles have been entrained in hopper dredge operations operating along the U.S. Atlantic coast (ACOE Sea Turtle War ehouse, 2012). The areas to be dredged in Reaches D and E are part of the summer developmental habitat of juvenile sea turtles

a nd are used by turtles for foraging. Sea turtles are likely to be feeding on or near the bottom of the water column during the warmer months, with loggerhead and Kemp’s ridley sea turtles being the most common species in these waters. Although not expected to be as numerous as loggerheads and Kemp’s ridleys, green sea turtles are also likely to occur seasonally in Reach D and E.

Sea turtles become entrained in hopper dredges as the draghead moves along the bottom. Entrainment occurs when sea turtles do not or cannot escape from the suction of the dredge. Sea turtles can also be crushed on the bottom by the moving draghead. Mortality most often occurs when turtles are sucked into the dredge draghead, pumped through the intake pipe and then killed as they cycle through the centrifugal pump and into the hopper. Because entrainment is believed to occur primarily while the dra ghead is operating on the bottom, it is likely that only those species feeding or resting on or near the bottom would be vulnerable to entrainment. Turtles can also be entrained if suction is created in the draghead by current flow while the device is bei ng placed or removed, or if the dredge is operating on an uneven or rocky substrate and rises off the bottom. Recent information from the ACOE suggests that the risk of entrainment is highest when the bottom terrain is uneven or when the dredge is conduct ing “clean up” operations at the end of a dredge cycle when the bottom is trenched and the dredge is working to level out the bottom. In these instances, it is difficult for the dredge operator to keep the draghead buried in the sand and sea

turtles near the bottom may be more vulnerable to entrainment.

Sea turtles have been found resting in deeper waters, which could increase the likelihood of interactions from dredging activities. In 1981, observers documented the take of 71 loggerheads by a hopper d redge at the Port Canaveral Ship Channel, Florida (Slay and Richardson 1988). This channel is a deep, low productivity environment in the Southeast Atlantic where sea turtles are known to rest on the bottom, making them extremely vulnerable to entrainment . The large number of turtle mortalities at the Port Canaveral Ship Channel in the early 1980s resulted in part from turtles being buried in the soft bottom mud, a behavior known as brumation. Since 1981, 77 loggerhead sea turtles have been taken by hopp er dredge operations in the Port Canaveral Ship Channel, Florida. Chelonid turtles have been found to make use of deeper, less productive channels as resting areas that afford protection from predators because of the low energy, deep water
conditions. Wh ile sea turtle brumation has not been documented in mid

- Atlantic or New England waters, it is possible that this phenomenon occurs in these waters.

7.1.1.1 Background Information on Entrainment of Sea Turtles in Hopper Dredges
Sea turtles have been kil led in hopper dredge operations along the East and Gulf coasts of the US. Documented turtle mortalities during dredging operations in the ACOE South Atlantic Division (SAD; i.e., south of the Virginia/North Carolina border) are more common than in the ACO E North Atlantic Division (NAD; Virginia

- Maine) p resumably due to the greater abundance of turtles in these waters and the greater frequency of hopper dredge operations. For example, in the ACOE SAD, over 400 sea turtles have been entrained in hopper dred ges since 1980 and in the Gulf Region
over 160 sea turtles have been killed since 1995. Records of sea turtle entrainment in the ACOE NAD began in 1994. Through May 2012 , 7 5 sea turtles deaths (see Table 8 ) related to hopper dredge activities have been r ecorded in waters north of the North Carolina/Virginia border (USACE126

Sea Turtle Database 18 ) ; the majority of these turtles have been entrained in dredges operating in Chesapeake Bay

.

Before 1994, endangered species observers were not required on board ho pper dredges and dredge baskets were not inspected for sea turtles or sea turtle parts. The majority of sea turtle takes in the NAD have occurred in the Norfolk district. This is largely a function of the large number of loggerhead and Kemp’s ridley sea turtles that occur in the Chesapeake Bay each summer and the intense dredging operations that are conducted to maintain the Chesapeake Bay entrance channels and for beach nourishment projects at Virginia Beach. Since 1992, the take of 10 sea turtles (all loggerheads) has been recorded during hopper dredge operations in the Philadelphia, Baltimore and
New York Districts. Hopper dredging is relatively rare in New England waters where sea turtles are known to occur, with most hopper dredge operations being c ompleted by the specialized Government owned dredge Currituck which operates at low suction and has been demonstrated to have a very low likelihood of entraining or impinging sea turtles. To date, no hopper dredge operations (other than the Currituck) hav e occurred in the New England District in areas or at times when sea turtles are likely to be present.

Of the 10 sea turtle mortalities attributed to hopper dredge operations outside of the Norfolk District, 6 have occurred in the Philadelphia District, 3 in the Baltimore District and 1 in the New York District. As explained in the ACOE BA, the Philadelphia District Endangered Species Monitoring Program began in 1992. For four hopper dredging projects conducted in 1992

– 1994, observers were present to provide approximately 25% coverage (6 hours on, 6 hours off on a biweekly basis). No sea turtles were observed during the 8/25

- 10/13/92 dredging at Bethany Bay,
DE or the 10/24

- 11/14/92 dredging at Cape May, NJ. The dredge McFarland worked in the
Delawa re River entrance channel from 6/23

– 7/23/93 with no sea turtle observations. The dredge

continued in the Brandywine Range from 7/24

- 8/2 and 8/10

- 8/19/93. Fresh sea turtle parts were observed in the inflow screening on two separate dates three days apar t in the Brandywine Range of the Delaware Bay . Additionally, three live sea turtles were observed from the bridge during dredging operations. Dredging with the McFarland continued in the Delaware Bay entrance
channel from 6/13

- 8/10/94. During this dredg ing cycle, relocation trawling was conducted in an attempt to capture sea turtles in the area where dredging was occurring and move them away from the dredge . Eight loggerhead sea turtles were captured alive with the trawl and relocated away from

the dred ging site. One loggerhead was taken by the dredge on June 22, 1994. Since this event in 1994, dredge observer coverage was increased to 50%. On November 3, 1995, one loggerhead was taken by a hopper dredge operating in the entrance channel. In 1999, dr edging occurred in July at the entrance channel. Three decomposed loggerheads were observed at Brandywine Shoal and Reedy Island by the dredge observer while the dredge was transiting to the disposal site. There is no evidence to suggest that these turtl es were killed during dredging operations. On July 27, 2005

fresh loggerhead parts were observed in two different dredge loads while dredging was being

conducted in the Miah Maul l Range of the channel in Delaware Bay. It is currently unknown
whether thes e were parts of the same turtle or two different turtles.

18 The USACE Sea Turtle Data Warehouse is maintained by the ACOE’s E nvironmental Laboratory and contains information on ACOE dredging projects conducted since 1980 with a focus on information on interactions with sea
turtles.127

In addition to sea turtles observed as entrained, one loggerhead was killed during dredging operations off Sea Girt, New Jersey during an ACOE New York District beach renourishment project on Aug ust 23, 1997. This turtle was closed up in the hinge between the draghead and the dragarm as the dragarm lifted off the bottom

.

Table 8 . Sea Turtle Takes in USACE NAD Dredging Operations

Project Location Year of Operation Cubic Yardage

Removed Obser ved Takes

Cape Henry Channel 2012 NA 1 loggerhead York Spit 2012 NA 1 Loggerhead

Thimble Shoal
Channel 2009 NA 3 Loggerheads

York Spit 2007 608,000 1 Kemp’s Ridley Cape Henry 2006 NA 3 Loggerheads

Thimble Shoal
Channel 2006 300,000 1 loggerhead

D elaware Bay 2005 50,000 2 Loggerheads

Thimble Shoal
Channel 2003 1,828,312 7 Loggerheads 1 Kemp’s ridley

1 unknown Cape Henry 2002 1,407,814 6 Loggerheads 1 Kemp’s ridley 1 green

VA Beach Hurricane Protection Project (Cape Henry) 2002 NA 1 Loggerhead

York Spit Channel 2002 911,406 8 Loggerheads 1 Kemp’s ridley Cape Henry 2001 1,641,140 2 loggerheads 1 Kemp’s ridley

VA Beach Hurricane Protection Project (Thimble Shoals) 2001 NA 5 loggerheads
1 unknown

Thimble Shoal
Channel 2000 831,761 2 loggerheads
1 unknown

York River Entrance
Channel 1998 672,536 6 loggerheads

Atlantic Coast of NJ 1997 1,000,000 1 Loggerhead

Thimble Shoal
Channel 1996 529,301 1 loggerhead

Delaware Bay 1995 218,151 1 Loggerhead128

Cape Henry 1994 552,671 4 loggerheads
1 unknown York Spit Channel 1994 61,299 4 loggerheads Delaware Bay 1994 NA 1 Loggerhead Delaware Bay 1993 NA 2 Loggerhead s Off Ocean City MD 1992 1,592,262 3 Loggerheads

TOTAL = 7

5 Turtles

It should be noted that the observed takes may not be representat ive of all the turtles killed during dredge operations. Typically, endangered species observers are required to observe a total of 50% of the dredge activity (i.e., 6 hours on watch, 6 hours off watch). As such, if the observer was off watch or the cage was emptied and not inspected or the dredge company either did not report or was unable to identify the turtle incident, there is the possibility that a turtle could be taken by the dredge and go unnoticed. Additionally, in older Opinions (i.e., prior to 1995) , NMFS frequently only required 25% observer coverage and monitoring of the overflows which has since been determined to not be as effective as monitoring of the intakes. These conditions may have led to sea turtle takes going undetected.

NMFS ra ised this issue to the ACOE Norfolk District during the 2002 season, after several turtles were taken in the Cape Henry and York Spit Channels, and expressed the need for 100% observer coverage. On September 30, 2002, the ACOE informed the dredge contract or that when the observer was not present, the cage should not be opened unless it is clogged. This modification was to ensure that any sea turtles that were taken and on the intake screen (or in the cage area) would
remain there until the observer evalua ted the load. The ACOE’s letter further stated “Crew members will only go into the cage and remove wood, rocks, and man

- made debris; any aquatic biological material is left in the cage for the observer to document and clear out when they return on duty. In addition, the observer is the only one allowed to clean off the overflow screen. This practice provides us with 100% observation coverage and shall continue.” Theoretically, all sea turtle parts were observed under this scheme, but the frequency of cl ogging in the cage is unknown
at this time. T he most effective way to ensure that 100% observer coverage is attained is to have a

NMFS

- approved endangered species observer monitoring all loads at all times. This level of observer coverage would document all turtle interactions and better quantify the impact of dredging on turtle populations. More recently issued Opinions have required 100% observer coverage which increases the likelihood of takes being detected and reported.

It is likely that not all sea turtles killed by dredges are observed onboard the hopper dredge. Several

sea turtles were stranded on Virginia shores with crushing type injuries from May 25 to October 15, 2002. The Virginia Marine Science Museum (VMSM) found 10 loggerheads, 2 Kemp ’s ridleys, and 1 leatherback exhibiting injuries and structural damage consistent with what they have seen in animals that were known dredge takes. While it cannot be conclusively determined that these strandings were the result of dredge interactions, t he link is possible given the location of the strandings (e.g., in the southern Chesapeake Bay near ongoing dredging activity), the time of the documented strandings in relation to dredge operations, the lack of other ongoing activities which may have caus ed such damage, and the nature of the injuries (e.g., crushed or shattered carapaces and/or flipper bones, black mud in mouth). Additionally, in 1992, three dead sea turtles were found129

on an Ocean City, Maryland beach while dredging operations were ongoin g at a borrow area located 3 miles offshore. Necropsy results indicate that the deaths of all three turtles were dredge related. It is unknown if turtles observed on the beach with these types of injuries were crushed by the dredge and subsequently stran ded on shore or whether they were entrained in the dredge, entered the hopper and then were discharged onto the beach with the dredge spoils.

A dredge could crush an animal as it was setting the draghead on the bottom, or if the draghead was lifting on and off the bottom due to uneven terrain, but the actual cause of these crushing injuries cannot be determined at this time. Further analyses need to be conducted to better understand the link between crushed strandings and dredging activities, and if tho se strandings need to be factored into an incidental take level. Regardless, it is possible that dredges are taking animals that are not observed on the dredge which may result in strandings on nearby beaches.

Due to the nature of interactions between li sted species and dredge operations, it is difficult to predict the number of interactions that are likely to occur from a particular dredging operation. Projects that occur in an identical location with the same equipment year after year may result in

int eractions in some years and none in other years as noted in the examples of sea turtle takes above. Dredging operations may go on for months, with sea turtle takes occurring intermittently throughout the duration of the action. For example, dredging occur red at Cape Henry over 160 days in 2002 with 8 sea turtle takes occurring over 3 separate weeks while dredging at York Spit in 1994 resulted in 4 sea turtle takes in one week. In Delaware Bay, dredge cycles have been conducted during the May

- November peri od with no observed entrainment and as many as two sea turtles have
been entrained in as little as three weeks. Even in locations where thousands of sea turtles are known to be present (i.e., Chesapeake Bay) and where dredges are operating in areas with p referred sea turtle depths and forage items (as evidenced by entrainment of these species in the dredge), the numbers of sea turtles entrained is an extremely small percentage of the likely number of sea turtles in the action area. This is likely due to t he distribution of individuals throughout the action area, the relatively small area which is affected at any given moment and the ability of some sea turtles to avoid the dredge even if they are in the immediate area.

The number of interactions between dredge equipment and sea turtles seems to be best associated with the volume of material removed, which is closely correlated to the length of time dredging takes, with a greater number of interactions associated with a greater volume of material removed and a longer duration of dredging. The number of interactions is also heavily influenced by the time of year dredging occurs (with more interactions correlated to times of year when more sea turtles are present in the action area) and the type of dredge p lant used (sea turtles are apparently capable of avoiding pipeline and mechanical dredges as no takes of sea turtles have been reported with these types of dredges). The number of interactions may also be influenced by the terrain in the area being dredge d, with interactions more likely when the draghead is moving up and off the bottom frequently. Interactions are also more likely at times and in areas when sea turtle forage items are concentrated in the area being dredged, as sea turtles are more likely to be spending time on the bottom while foraging.

As explained above, since 1992 endangered species observers have worked on all hopper dredge operations below the Delaware Memorial Bridge operating between June and November. Prior to 1995, observers w orked one week on, one week off, resulting in approximately 25% observer130

coverage. Since this date, observers have provided continuous 8

- hour on 8

- hour off coverage. Cages are generally not cleaned without the observer being present, so it is likely that greater than
50% of material has been observed and that the number of entrainments that go undetected is low

. Six sea turtles have been entrained in hopper dredges operating in Delaware Bay since 1993. As
sea turtles have been documented in the action a rea and suitable habitat and forage items are present, it is likely that sea turtles will be present in the action area when dredging takes place.

We have compiled a dataset representing all of the hopper dredge projects in the Philadelphia

District tha t have reported the cubic yardage removed as well as the number of takes observed. Records for 12 projects occurring during “sea turtle season” (i.e., May

– November 15) in the Philadelphia District are available that report the cubic yardage removed duri ng a project. Of these, 7 projects involved dredging in the Philadelphia to the Sea navigation channel and 5 involved dredging off the Atlantic coast of Delaware. T he distribution of sea turtles in offshore locations
such as offshore borrow areas used fo r beach nourishment is not expected to be comparable to the distribution of sea turtles in estuarine foraging areas such as Delaware Bay. Additionally, as evidenced in the sea turtle database, very few sea turtles have been entrained in hopper dredges

ope rating at any offshore borrow area. This is true even in the southeast, where large numbers of sea turtles are present year round. This is likely due to the transitory nature of most sea turtles occurring in offshore borrow areas as well as the widely di stributed nature of sea turtles in offshore

waters. As such, we have excluded the five projects involving dredging off the Atlantic coast of
Delaware from the dataset used to estimate an entrainment rate for sea turtles in hopper dredges operating in Dela ware Bay ( see Table 9 below)

.

As explained above, for projects prior to 1995, observers were only present on the dredge for every other week of dredging. For dredging undertaken since 1995, observers were present on board the dredge full time and worke d a 8

- hour on, 8

- hour off shift. The only time that cages (where sea turtle parts are typically observed) were cleaned by anyone other than the observer was when there was a clog. If a turtle or turtle part was observed in such an instance, crew were ins tructed to inform the observer, even if off

- duty. As such, it is reasonable to expect that even though there was only 50% observer coverage, an extremely small amount of biological material went unobserved. To make the data from the 1993 and 1994 dredge events when observers were only on board every other week, comparable to the 1995

- 2006 data when observers were on board full time, NMFS has assumed that an equal number of turtles were entrained when observers were not present. This

calculation is reflec ted in Table 2 as “adjusted entrainment number.”

Table 9

. Sea turtle entrainment in Philadelphia District dredging operations

Project Dates CY
Removed Observed

Entrainment Adjusted Entrainment

Number Philadelphia to the

Sea

- Mia h Maul l

, Brandywine, Deepwater and Liston ranges 08/08/06

- 08/23/06;

09/07/06

- 11/16/06 390,000 0 0

Philadelphia to the

Sea

- Brandywine and Deepwater 11/01/2005

-

11/18/2005 167

, 982 0 0131

Ranges

Philadelphia to the

Sea

- Miah Maul l and
Brandwine 10/04/05

-

10/22/2005 162

, 68 2 0 0

Philadelphia to the

Sea

- Miah Maul l 7/24/05

- 7/27/05 50,000 2 2

Philadelphia to the

Sea

- Miah Maul l and

Brand y wine 10/07/95

- 11/16/95 218,151 1 1

Philadelphia to the

Sea

- Miah Maul McFarland 6/15/94

-

8/10/94 2,830,000 1 2

Cape May Inlet

Beach fill

- Brandywine Range 07/24/93

- 08/19/93 275,000 2 4

TOTAL

4,093,815 6 9

7.1.1.2 Predicted Entrainment in Proposed Hopper Dredging

Based on th e data in Table 9

, NMFS has made calculations which indicate that an average of one sea turtle is killed f

or approximately every 45 0 ,000 cy removed. This calculation has been based on a number of assumptions including the following: that sea turtles are evenly distributed throughout

all channel reaches for which takes have occurred, that all dredges will tak e an identical number of sea turtles, and that sea turtles are equally likely to be encountered throughout the May to
November time frame. Based on these calculations, we expect that for dredging in Reaches D and E of the navigation channel during the tim e of year when sea turtles are likely to be present, one sea turtle is likely to be entrained for every 45 0 ,000 cubic yards of material removed by a hopper dredge. While this estimate is based on several assumptions, it is reasonable because it uses the b est available information on entrainment of sea turtles from past dredging operations in the action area, including channel reaches that are contained within Reaches D and E, includes multiple projects over several years, and all of the projects have had o bserver coverage.

With the exception of one green turtle entrained in a hopper dredge operating in Chesapeake Bay, all other sea turtles entrained in dredges operating in the ACOE NAD have been loggerheads and Kemp’s ridley. Of these 7 5 sea turtles, 6 5 have been loggerhead s , 5 have been Kemp’s ridleys, 1 green and 4 unknown. Overall, of those identified to species, approximately 9 1 % of the sea turtles

entrained in dredges operating in the ACOE North Atlantic Division have been loggerheads. No Kemp’s r idleys or greens have been entrained in dredge operations outside of the Chesapeake Bay area. The high percentage of loggerheads is likely due to several factors including their tendency to forage on the bottom where the dredge is operating and the fact t hat this species is the most numerous of the sea turtle species in Northeast and Mid

- Atlantic waters. It is likely that the documentation of only one green sea turtle entrainment in Virginia dredging operations is a reflection of the low numbers of green sea turtles that occur in waters north of North Carolina. The low number of green sea turtles in the action area makes an interaction with a green sea turtle132

extremely unlikely to occur.

Based on the above information, it is reasonable to expect that o ne sea turtle is likely to be injured or killed for approximately every 45 0 ,000 cy of material removed from Reach D and E between May and November, and that at least 90% will be loggerheads. The ACOE has provided us with a

schedule t hat indicates during what months dredging in Reach D and E is expected to occur;

because sea turtles do not occur in the action area from December

– April, we do not expect any entrainment during these months. Based on the information outlined above and t he volume of material estimated to be removed from each reach during the time of year when sea turtles are likely to be present

, we anticipate the following levels of entrainment:

Reach Scheduled

Dates Total Volume May

– November

Volume Expected Sea

turtl e interactions

D Dec 2012

–

June 2013 2,051,100 586,028 2

E Sept

– Dec

2013 1,598,700 1,200,025 3

E April

– Aug

2015 2,483,000 2,483,000 6

Total: 11

As such, assuming that all three of these reaches are deepened with hopper dredges, we anticipate

that no more than 1 1 sea turtles are likely to be entrained in the initial dredge cycle operating on the
schedule outlined above. We expect that nearly all of the sea turtles will be loggerheads and that the entrainment of a Kemp’s ridley during a particu lar dredge cycle will be rare; however, as Kemp’s ridleys have been documented in the action area and have been entrained in hopper dredges, it is likely that this species will interact with the dredge over the course of the project life. As explained abo ve, approximately 9 1 % of the sea turtles taken in dredges operating in the ACOE North Atlantic Division have been loggerheads and all sea turtles entrained in hopper dredges operating in Delaware Bay have been loggerheads . Based on th e ratio of sea turtle entrainment in
the ACOE NAD

, no more than 1 of the sea turtles likely to be entrained in a hopper dredge will be a Kemp’s ridley, with the remainder being loggerheads. As noted above, interactions with green sea

turtles are extremely un likely.

7.1. 2 E ntrainment

– Shortnose Sturgeon Shortnose sturgeon are also vulnerable to entrainment in hopper dredges. As explained above, since 1992, endangered species observers have been present for at least a portion of all hopper dredging done during the June

– No vember time frame below the Delaware Memorial Bridge (i.e., Reaches D and E)

. No shortnose sturgeon have been documented during any hopper dredge activity in the Philadelphia to the Sea channel maintenance. Little is known about the distribution of short nose sturgeon in Delaware Bay. However, shortnose sturgeon have been documented at the Salem Nuclear Generating Facility at Artificial Island. The known occurrence of shortnose sturgeon in

Reaches D and E and the lack of documented occurrence of entrainm ent of shortnose sturgeon in other hopper dredging operations in this area and the extent of the observer coverage (i.e., at least133

25% coverage over 7 events over 15 years) leads to the conclusion that it is extremely unlikely that a shortnose sturgeon wil l become entrained in a hopper dredge operating in Reach D or Reach E. This is likely due to the low number of shortnose sturgeon in these reaches (due to high salinity). Additionally, tracking studies conducted by O’Herron (1985) in the Bay, indicate th at sturgeon were not typically found in the deepwater channel, but were more common outside the channel and on the channel edges. This distribution is likely to reduce the likelihood of an interaction between a dredge operating in the Bay and a shortnose sturgeon. Based on this information and the lack of interactions with shortnose sturgeon during dredging in this area in the past, no shortnose sturgeon are likely to be injured or killed during hopper dredgin g operations at these reaches.

A hopper dre dge will also be used for deepening at Reach A and Reach AA. Dredging at Reach A will remove 1,666,600 cy between August 2012 and February 2013. Dredging in Reach AA will remove 994,000 cy between August and November 2014. Shortnose sturgeon are likely to be present in these river reaches between April and November.

Dredging of this reach of the navigation channel has occurred routinely in the past. However, no observers have been present on board the dredge. As such, there is no information on any historic interactions that may have occurred. Because location specific information is not available, we have considered information on hopper dredge interactions in other river systems. A hopper dredge
is used to maintain the Kennebec River Federal Navi gation Project (Maine ; see T able 10 below ). Over the past 20 years, dredging in the channel with a hopper dredge has occurred six times. Shortnose sturgeon have only been entrained during two of these events, with a total of seven sturgeon entrained. Co nsidering the six dredging events that have occurred over the past 20 years, an entrainment rate of 1 shortnose sturgeon for every 30,000 cy is calculated for the Kennebec
River

. Hopper dredges are also used to maintain the Hudson River navigation channel in New York. However, dredging is timed to minimize the potential for shortnose sturgeon occurrence in the area being dredged. No endangered species observers are used and no interactions with shortnose sturgeon have been reported to NMFS or the ACOE

.

Table 10 . Maintenance dredging of the lower Kennebec River F NP since 1991.

Location Dates Volume Removed (cy) Observer

Present? Interactions

with Shortnose Sturgeon Doubling Point Fall 1991 69 ,000 No 2 lethal Doubling Point November 1997 22 ,000 Y es 0 Doubling Point December 2000 2 0,000 Yes 0 Doubling Point April 2002 25 ,000 Yes 0 Doubling Point 10/6

- 10/10/2003 22

, 310 Yes 3 lethal 2 injured but alive upon

release Doubling Point August 2011 50,000 No 0134

We have also considered information on shortnose sturgeon interactions with other dredge types. Complete data sets from t hree cutterhead dredging events in the upper Delaware River are available (see Table 11 below). As explained in the cutterhead dredging section below, five shortnose
sturg eon have been observed entrained during two separate dredging events in the upper Delaware River with the fish observed at the Money Island disposal site. Complete data is also available for two cutterhead dredging events that have occurred for the deepen ing of the Delaware main channel. Dredging occurred in Reach C in 2010 and in Reach B in 2011. The dredge disposal sites were inspected daily during the 2010 and 2011 dredge events. No shortnose sturgeon were observed

entrained during either deepening e vent. Using these four dredge events, the calculated entrainment rate is one shortnose sturgeon for approximately every 1.1 mcy of material removed.

Table 11

. Shortnose Sturgeon Observations during Delaware River Dredging

Project Type of Dredge Dates CY Removed Sturgeon
Observe d

Kinkora to Trenton C utterhead March 1996 509,946 2

Kinkora to Trenton C utterhead January 1998 512,923 3

Reach C Cutterhead March

– September

2010 3,594,963 0

Reach B (rkm 113.3

- 118) Cutterhead Nov

– December

2011 1,100 ,00 0 0

We have also considered information on interactions between hydraulic dredges and other sturgeon species. The ACOE reports records of 29 interactions between dredges and sturgeon on the U.S.
Atlantic coast between 1990 and 2010 (ACOE unpublished inf ormation)

. This number includes the 10 interactions discussed above (Kennebec River and Delaware River). At least two of the 29 entrained sturgeon were likely killed prior to entrainment based on the degree of decomposition.
NMFS is aware of three addit ional interactions that were not included in this report, including two Atlantic sturgeon entrained during dredging in the Chesapeake Bay in May 2011 and 1 shortnose sturgeon captured in a dredge bucket operating at Bath Iron Works, Kennebec River, Maine i n 2008 ( released alive and unharmed ). The ACOE and their contractors remove millions of cubic yards of material from rivers and coastal navigation channels, as well as offshore sand borrow areas, every year. Interactions with sturgeon remain a rare event , even in areas where sturgeon are relatively

numerous.

Limited information is available on the likely entrainment rates and it is difficult to make a comparison between the likelihood of entrainment in a hopper dredge vs. a cutterhead dredge. However, it is likely that aquatic organisms, including shortnose sturgeon, may be more vulnerable to entrainment in a hopper dredge than a cutterhead. This is due to the larger size of the hopper draghead, the stronger suction and the faster s peed at which the d raghead moves which may make escape more difficult. A cutterhead dredge has a smaller intake, moves more slowly and is typically
buried in the sediment. While in theory the risk of entrainment is likely higher in a hopper dredge than a cutterhead dredge, there is no quantitative way to calculate the difference in the level of risk.135

While neither the Money Island dataset (2 events)

, the 2010

- 2011 Reach B and C dredging , or the Kennebec River dataset (6 events) are perfect estimates of the risk of entrainm ent in a hopper operating in these reaches, the Delaware River data sets, when combined, allow NMFS to calculate a risk of entrainment. NMFS believes that using this dataset of four Delaware River cutterhead dredging events is reasonable because it is bas ed on dredging events in the same river system and incorporates entrainment data from the same dredge types at times of year when shortnose sturgeon were likely present in the areas being dredged and the dredge disposal sites were inspected with a goal of detecting any entrained sturgeon . Using these data sets, an entrainment rate of 1 shortnose sturgeon per approximately every 1 .1 million cy of material removed is calculated.

Based on the above information, we expect one shortnose sturgeon to be entr ained for approximately every 1,10 0,000 cy of material removed from Reach A and AA between April and November. No entrainment of shortnose sturgeon is anticipated in Reach D or E. The ACOE has provided us with a schedule that indicates during what months dredging in Reach A and AA is expected to occur; because we expect shortnose sturgeon to be overwintering outside Reach A from

December

– March, we do not expect any entrainment in Reach A during these months. Based o n the information outlined here, we a nticipate the following levels of entrainment:

Reach Scheduled Dates Total Volume April

– November
Volume Expected

shortnose sturgeon
interactions

A Aug 2012

– Feb 13 1,666,600 1,000,000 1

AA August

– November

2014 994,000 994,000 1

E Sept

– Dec 2013 1,598,700 1,698,700 0

E April

– Aug 2015 2,483,000 2,483,000 0

D Dec 2012

– June 2013 2,051,100 293,014 0

This calculation has been based on a number of assumptions including the following: that shortnose
sturgeon are evenly distributed throughout al l channel reaches used in this estimate, th at all dredges
will have the same entrainment rate , and that shortnose sturgeon are equally likely to be encountered throughout the time period when dredging will occur. While this estimate is based on
several as sumptions, it is reasonable because it uses the best available information on entrainment of shortnose sturgeon from past dredging operations, including dredging operations in the action area, it includes multiple projects over several years, and all of th e projects have had observer

coverage at the disposal site specifically looking for sturgeon

.

There is evidence that some shortnose sturgeon, particularly juveniles or smaller adults, could be entrained in the dredge and survive. However, as the extent of internal injuries and the likelihood of survival is unknown, and the size of the fish likely to be entrained is impossible to predict, it is reasonable to conclude that any shortnose sturgeon entrained in the hopper dredge are likely to be
killed.136

7.1. 3 Hopper Dredge Entrainment

– Atlantic Sturgeon

Atlantic sturgeon are vulnerable to entrainment in hopper dredges. As explained above, since 1992, endangered species observers have been present for at least a portion of all hopper dredging done

duri ng the June

– November time frame below the Delaware Memorial Bridge. No Atlantic sturgeon have been documented during any hopper dredge activity in the Philadelphia to the Sea

maintenance dredging

. Observers have not been used for hopper dredge activiti es in other reaches
of the river.

G iven the large size of adults (greater than 150cm) and the size of the openings on the dragheads,

adult Atlantic sturgeon are unlikely to be vulnerable to entrainment. ACOE reports that from 1990

- 2011, 30 interactions w ith sturgeon occurred during dredge operations. Of these, 17 were reported as Atlantic sturgeon, with 15 of these entrained in hopper dredges. Of the entrained Atlantic sturgeon for which size is available, all were subadults ( larger than 50cm but less t han 150cm)

. Information on these interactions is presented in Table 12 . Most of these interactions occurred
within rivers and harbors

.

Table 12

. USACE Atlantic Sturgeon Entrainment Records from Hopper Dredge Operations
1990

- 2011

Project Locatio n Corps

Division/District* Month/Year of Operation Cubic

Yards

Removed Observed**

Entrainment

Winyah Bay, Georgetown (SC) SAD/SAC Oct

- 90 517,032 1

Savannah Harbor (GA) SAD/SAS Jan

- 94 2,202,800 1

Savannah Harbor SAD/SAS Dec

- 94 2,239,800 2

Wilmington Ha rbor, Cape Fear River (NC) SAD/SAW Sep

- 98 196,400 1

Charleston Harbor (SC) SAD/SAC Mar

- 00 5,627,386 2

Brunswick Harbor (GA) SAD/SAS Feb

- 0 2 1,459,630 1

Charleston Harbor SAD/SAC Jan

- 04 1,449,234 1

Brunswick Harbor SAD/SAS Mar

- 05 966,000 1

Brunswick Har

bor SAD/SAS Dec

- 06 1,198,571 1

Savannah Entrance
Channel SAD/SAS Nov

- 07 973,463 1

Sandy Hook Channel (NJ) NAD/NANY Aug

- Nov

- 08 23,500 1137

York Spit (VA) NAD/NAN Apr

- 11 1,630,713 2

Total 17,553,816 15 * SAD= South Atlantic Division; NAD= North Atlanti c Division; SAC=Charleston District; SAS=Savannah District; SAW=Wilmington District; NANY=New York District;
NAN=Norfolk District.

** Records based on sea turtle observer reports which record listed species entrained as well as all other organisms entrain ed during dredge operations.

In general, entrainment of large mobile animals, such as Atlantic sturgeon, is relatively rare. Several factors are thought to contribute to the likelihood of entrainment. In areas where animals are present in high density, the risk of an interaction is greater because more animals are exposed to the potential for entrainment. T he risk of entrainment is likely to be higher in areas where the movements of animals are restricted (e.g., in narrow river s or confined bays ) where there is limited opportunity for animals to move away from the dredge than in unconfined areas such as wide rivers or open bays . The hopper dredge draghead operates on the bottom and is typically at least partially buried in the sediment. Sturgeon are b enthic feeders and are often found at or near the bottom while foraging or while moving within rivers.

As noted above, no Atlantic sturgeon have been observed entrained in hopper dredges operating in the Delaware River. The only instances of Atlantic s turgeon entrainment in hopper dredges in the NMFS Northeast Region are two sturgeon entrained at York Spit, VA in 2011 (both were killed) and one live Atlantic sturgeon entrained in Sandy Hook, NJ in 2008. As described in the discussion of shortnose sturg eon and sea turtles above, many other hopper dredge projects have occurred in th e Northeast Region; nearly all of which overlap with times and areas where Atlantic sturgeon are known to be present. Because observers have been present on these dredges and we expect that any interactions with Atlantic sturgeon would have been reported to us, the interaction rate between hopper dredges and Atlantic sturgeon seems to be very low. Even just considering the projects

listed in Table 12 , where entrainment was rec orded, we calculate an entrainment rate of one Atlantic sturgeon for approximately every 1.2 million cy of material removed. If we included projects where observers were present and no Atlantic sturgeon were observed, the entrainment rate is even lower. Even just adding in the seven Delaware Bay projects and the six Kennebec projects presented in

Table s 10 and 11 above, lowers the entrainment rate to one Atlantic sturgeon for every 1.5 mcy.

As noted above for sea turtles, there is a relationship betwe en the number of animals entrained and
the volume of material removed. The volume of material removed is correlated to the amount of time spent dredging but is a more accurate measure of effort because reports often provide the total days of a project but may not provide information on the actual hours of dredging vs. the number of hours steaming to the disposal site or in port for weather or other delays. Using just the information available for hopper dredging projects in the action area, we would expec t no Atlantic sturgeon entrainment because none has been observed. However, because observers have not been used on hopper dredges outside of Reach D and E, it is possible that this would be an underestimate of the potential for entrainment outside of tho se reaches. H owever, it does suggest that entrainment in

reaches D and E is likely to be very low

. As noted above, tracking of sturgeon in Delaware Bay indicates that they are more likely to occur outside the channel and along the channel edges than138

with in the deepwater channel; this likely reduces the risk of entrainment because it minimizes the

co

- occurrence of the dredge and sturgeon. The entrainment estimate generated above using the projects in rivers and bays where entrained Atlantic sturgeon have been observed plus the Kennebec and Delaware Bay hopper dredge projects , is an overestimate because it does not consider other projects where no entrainment occurred. However, at this time, it is the best available estimate of

in

- river entrainment rates f or Atlantic sturgeon and hopper dredges.

Based on the above information, we expect one Atlantic sturgeon to be entrained for approximately

every 1, 5 0 0,000 cy of material removed with a hopper dredge

. Given the size of adult Atlantic sturgeon (greater t han 150cm) and the size of observed entrained sturgeon (less than 150cm) , we do not anticipate the entrainment of any adult Atlantic sturgeon ; all entrainment will be YOY, juveniles

or subadults

. Because observers have been used for dredging at Reach D an d E in the past and no entrainment of Atlantic sturgeon has been observed, we do not anticipate any future entrainment of Atlantic sturgeon in these reaches. The reduced risk of entrainment in these reaches is likely due to the width of the river and bay in these areas , the known use of areas outside the channel rather than in the channel, and the increased availability of habitat outside of the area where dredging is occurring which may increase the potential for sturgeon to escape from the dredge. Based o n the information outlined here, we anticipate the following levels of entrainment:

Reach Scheduled Dates Total Volume Expected Atlantic sturgeon
interactions

A Aug 2012

– Feb 13 1,666,600 1

AA August

– Nov 2014 994,000 1

E Sept

– Dec 2013 1,598,70 0 0

E April

– Aug 2015 2,483,000 0

D Dec 201 2

– June 201 3 2,051,100 0

There is evidence that some Atlantic sturgeon, particularly juveniles and small subadults , could be entrained in the dredge and survive. However, as the extent of internal injuries and the likelihood of survival is unknown, and the size of the fish likely to be entrained is impossible to predict, it is reasonable to conclude that any Atlantic sturgeon entrained in the hopper dredge are likely to be
killed. Based on the mixed stock analysis, it is likely that the entrained Atlantic sturgeon will originate from the New York Bight DPS but could also originate from the Gulf of Maine, Chesapeake Bay or South Atlantic DPS. Given the low numbers of Carolina DPS fish in the action

area and the low number of mortalities anticipated, it is unlikely that there will be any mortality of any Carolina DPS Atlantic sturgeon.

7.1. 4 Interactions with the Sediment Plume

- Hopper Dredge Dredging operations cause sediment to be suspended in the water column. This results in a sediment plume in the water, typically present from the dredge site and decreasing in concentration as sediment falls out of the water column as distance increases from the dredge site. The nature, degree, and extent of sedimen t suspension around a dredging operation are controlled by many factors including : the particle size distribution, solids concentration, and composition of the139

dredged material; the dredge type and size, discharge/cutter configuration, discharge rate, and solids concentration of the slurry; operational procedures used; and the characteristics of the hydraulic regime in the vicinity of the operation, including water composition, temperature and hydrodynamic forces (i.e., waves, currents, etc.) causing verti cal and horizontal mixing (ACOE 1983).

Resuspension of fine

- grained dredged material during hopper dredging operations is caused by the dragheads as they are pulled through the sediment, turbulence generated by the vessel and its prop wash, and overflow of turbid water during hopper filling operations. During the filling operation, dredged material slurry is often pumped into the hoppers after they have been filled with slurry in order to maximize the amount of solid material in the hopper. The lower de nsity, turbid water at the surface of the filled hoppers overflows and is usually discharged through ports located near the waterline of the dredge. Use of this “overflow” technique results in a larger sediment plume than if

no overflow is used. The ACOE has indicated that overflow is not authorized for the deepening project. In 2001, a study was done of overflow and nonoverflow hopper dredging. Monitoring of the sediment plumes was accomplished using a boat

- mounted 1,200

- kHz Broad

- Band Acoustic Doppler Current Profiler (ADCP). The instrument collects velocity vectors in the water column together with backscatter levels to determine the position and relative intensity of the sediment plume. Along with the ADCP, a MicroLite recording instrument with an Optical Backscatterance (OBS) Sensor was towed by the vessel at a depth of 15 ft. The MicroLite recorded data at 0.5

- sec intervals. Navigation data for monitoring were obtained by a Starlink differential Global Positioning System (GPS). The GPS monitors the boat position from the starting and ending points along each transect.

Transects were monitored in the test area to obtain the background levels of suspended materials prior to dredging activities. A period of 8 minutes following the dredge passing during non

overflow dredging showed the level of suspended material to be returning to background levels. No lateral dispersion of the plume out of the channel was observed during the non

- overflow dredging operation. During overflow dredging, a wider tra nsect was performed to determine the lateral extent of the plume. No significant change above background levels could be detected. At 1

- hr elapsed time following the end of the overflow dredging operation, the levels of suspended material

returned to bac kground conditions. Again, no lateral dispersion of the plume out of the channel
area was observed.

No information is available on the effects of total suspended solids (TSS) on juvenile and adult sea
turtles. Studies of the effects of turbid waters on fish suggest that concentrations of suspended solids can reach thousands of milligrams per liter before an acute toxic reaction is expected (Burton 1993). TSS is most likely to affect sea turtles if a plume causes a barrier to normal behaviors or if

sedim ent settles on the bottom affecting sea turtle prey. As sea turtles are highly mobile they are likely to be able to avoid any sediment plume and any effect on sea turtle or whale movements is likely to be insignificant. While an increase in suspended sed iments may cause sea turtles to alter their normal movements, any change in behavior is likely to be insignificant as it will only involve movement to alter course out of the sediment plume , which is expected to be limited to the navigation channel and be present at any location for no more than 8 minutes. Based on this information, any increase in suspended sediment is not likely to affect the movement of sea turtles between foraging areas or while migrating or otherwise negatively affect listed species i n the action area. Based on this information, it is likely that the effect of the suspension of sediment resulting140

from dredging operations will be insignificant.

The life stages of sturgeon most vulnerable to increased sediment are eggs and non

- mobile larvae which are subject to burial and suffocation. As noted above, no shortnose sturgeon eggs and/or larvae will be present in the action area. Reach A partially overlaps with one of the areas where Atlantic sturgeon are thought to spawn. D redging is scheduled to begin in th is reaches in August. At that time of year, Atlantic sturgeon spawned that year (April/May) would be at least two

- three months old and would be mobile; these fish are no longer considered larvae, but are YOY (see

Table 4 in Section 4.7 above). All sturgeon in the action area at this time of year would be sufficiently mobile to avoid any sediment plume. Therefore, any shortnose and Atlantic sturgeon in the action area during dredging would be capable of avoiding any sediment plume by swimming

around it . Laboratory studies (Niklitschek 2001 and Secor and Niklitschek 2001) have

demonstrated shortnose and Atlantic sturgeon are able to actively avoid areas with unfavorable water quality conditions and that they will seek out more favor able conditions when available.
While the increase in suspended sediments may cause sturgeon to alter their normal movements, any change in behavior is likely to be insignificant as it will only involve movement further up in the water column, or movement to an area just outside of the navigation channel. Based on this information, any increase in suspended sediment is not likely to affect the movement of shortnose

or Atlantic sturgeon between foraging areas and/or concentration areas during any phase of dredging or otherwise negatively affect shortnose sturgeon in the action area.

7. 2 Hydraulic Cutterhead Dredge

Table 13 describes work to be done w ith a cutterhead dredge. Dredging in Reach B is planned with a cutterhead dredge; dredging in Reaches AA , A and D could occur with a cutterhead or hopper dredge.

Table 13. Scheduled dredging by reach, date and volume to be removed

Channel Reach Volume (CY) Scheduled

Dates

AA 994,000 August

– November 201 4

A 1,666,600 August 2012

– February
2013

B 3 ,485,469 August 2016

– January
2017

D 2,051,100 December 2012

– June
2013

Sea turtles are extremely unlikely to occur in Reaches AA, A and B and therefore would not be exposed to effects of dredging in these reaches. Sea turtles are seasonally present in Reach D. However, sea turtles are not known to be vulnerable to entrainment in cutterhead dredges. This is thought to be due to the size of sea turtles and their swimming ability that allows them to escape the intake velocity near a cutterhead. Ther e are no records of any sea turtles being entrained in cutterhead dredges in the Delaware River or anywhere else. Based on the available information , we do not anticipate any entrainment of sea turtles in any reaches when a cutterhead dredge is used.141

7. 2 .1 Available Information on the Risk of Entrainment of Sturgeon in Cutterhead Dredge Maintenance of the existing 40 foot channel occurs routinely with some dredging accomplished with a cutterhead dredge. The cutterhead dredge operates with the dredge head buried in the sediment; however, a flow field is produced by the suction of the operating dredge head. The amount of suction produced is dependent on linear flow rates inside the pipe and the pipe diameter (Clausner and Jones 2004). High flow rates and larger pipes create greater suction velocities and wider flow fields. The suction produced decreases exponentially with distance from the dredge head (Boysen and Hoover 2009). A cutterhead dredge is also used in the upriver Philadelphia to

Trenton na vigation channel. W ith a cutterhead dredge, material is pumped directly from the dredged area to a disposal site. As such, there is no opportunity to monitor for biological material on board the dredge ; rather, observers work at the disposal site to insp ect material

.

It is generally assumed that sturgeon a re mobile enough to avoid the suction of an oncoming cutterhead dredge and that any sturgeon in the vicinity of such an operation would be able to avoid the intake and escape. However, in mid

- March 1 996, two shortnose sturgeon were found in a dredge discharge pool on Money Island, near Newbold Island. The dead sturgeon were found on the side of the spill area into which the hydraulic pipeline dredge was pumping. An assessment of

the condition of the fish indicated that the fish were likely alive and in good condition prior to entrainment and that they were both adult females. The area where dredging was occurring was a known overwintering area for shortnose sturgeon and large numbers of shortnose st urgeon were known to be concentrated in the general area. A total of 509,946 cy were dredged between Florence and the upper end of Newbold Island during this dredge cycle. Since that time, dredging occurring
in the winter months in the Newbold

– Kinkora range require that inspectors conduct daily inspections of the dredge spoil area in an attempt to detect the presence of any sturgeon. In January
1998 , three shortnose sturgeon carcasses were discovered in the Money Island Disposal Area. The
sturgeon wer e found on three separate dates : January 6, January 12, and January 13. Dredging was being conducted in the Kinkora and Florence ranges at this time which also overlaps with the shortnose sturgeon overwintering area . A total of 512,923 cy of material wa s dredged between Florence and upper Newbold Island during that dredge cycle. While it is possible that not all shortnose sturgeon killed during dredging operations were observed at the dredge disposal pool, ACOE has indicated that due to flow patterns in the pool, it is expected that all large material (i.e., sturgeon, logs etc.) will move towards the edges of the pool and be readily observable. Deepening has occurred in Reach C and Reach B. Dredging in Reach C occurred from March

– September
2010 with 3,594,963 cy of material removed with a cutterhead dredge. Dredging in Reach B occurred in November and December 2011, with 1,100,000 cy of material removed with a cutterhead dredge. In both cases, the dredge disposal area was inspected daily for the pre sence of sturgeon. No sturgeon were detected.

In an attempt to understand the behavior of sturgeon while dredging is ongoing, the ACOE worked with sturgeon researchers to track the movements of tagged Atlantic and shortnose sturgeon w hile

cutterhead dr edge operations were ongoing in Reach B (ERC 2011) . The movements of acoustically tagged sturgeon were monitored using both passive and active methods. Passive monitoring was performed using 14 VEMCO VR2 and VR2W single

- channel receivers, deployed through the study area. These receivers are part of a network that was established and cooperatively maintained by E nvironmental Research and Consulting, Inc. (ERC), Delaware State University (DSU), and the Delaware Department of Natural Resources and Environment al Control (DNREC).142

Nineteen tagged Atlantic sturgeon and three tagged shortnose sturgeon (all juveniles) were in the study area during the time dredging was ongoing. Eleven of the 19 juvenile Atlantic sturgeon detected during this study remained upriver of the dredging area and showed high fidelity to the Marcus Hook anchorage. Th ree of the juvenile sturgeon detected during this study (Atlantic sturgeons 13417, 1769; shortnose sturgeon 58626) appeared to have moved through Reach B when the dredge was wor king. The patterns and rates of movement of these fish indicated nothing to
suggest that their behavior was affected by dredge operation. The other sturgeon that were detected in the lower portion of the study area either moved through the area before or after the dredging period (Atlantic sturgeons 2053, 2054), moved through Reach B when the dredge was shut down (Atlantic sturgeons 1774, 58628, 58629), or moved through the channel on the east side of Cherry Island Flats (shortnose sturgeon 2090, Atlantic sturgeon 2091) opposite the main navigation
channel. It is unknown whether some of these fish chose behaviors (routes or timing of movement) that kept them from the immediate vicinity of the operating dredge . In the report, Brundage speculates that this could be to avoid the noisy area near the dredge but also states that o n the other hand, the movements of the sturgeon reported here relative to dredge operation could simply have
been coincidence.

A similar study was carried out in the James River (Vi rginia) (Cameron 2012) . Dredging occurred with a cutterhead dredge between January 30 and February 19, 2009 with 166,545 cy of material removed over 417.6 hours of active dredge time. Six subadult Atlantic sturgeon (77.5

– 100 cm length) were caught, tag ged with passive and active acoustic tags, and released at the dredge site. The study concluded that: tagged fish showed no signs of impeded up

- or downriver movement due to the physical presence of the dredge; fish were actively tracked freely moving pas t the dredge during full production mode; fish showed no signs of avoidance response (e.g., due to noise generated by the dredge) as indicated by the amount of time spent in close proximity to the dredge after release (3.5

– 21.5 hours); and, tagged fish s howed no evidence of attraction to the dredge.

Several scientific studies have been undertaken to understand the ability of sturgeon to avoid cutterhead dredges. Hoover et al. (2011) demonstrated the swimming performance of juvenile lake sturgeon and p allid sturgeon (12

– 17.3 cm FL) in laboratory evaluations. The authors compared swimming behaviors and abilities in water velocities ranging from 10 to 90 cm/second (0.33

- 3.0 feet per second). Based on the known intake velocities of several sizes of cut terhead dredges. At distances more than 1.5 meters from the dredges, water velocities were negligible (10 cm/s). The authors conclude that in order for a sturgeon to be entrained in a dredge, the fish would need to be almost on top of the drag head and b e unaffected by associated disturbance (e.g., turbidity and noise). The authors also conclude that juvenile sturgeon are only at risk of entrainment in a cutterhead dredge if they are in close proximity, less than 1 meter, to the drag heads.

Boysen and Hoover (2009) assessed the probability of entrainment of juvenile white sturgeon by evaluating swimming performance of young of the year fish (8

- 10 cm TL). The authors determined that within 1.0 meter of an operating dredge head, all fish would escape wh en the pipe was 61 cm (2 feet) or smaller. Fish larger than 9.3 cm (about 4 inches) would be able to avoid the intake when the pipe was as large as 66 cm (2.2 feet). The authors concluded that regardless of fish size or pipe size, fish are only at risk o f entrainment within a radius of 1.5

– 2 meters of the dredge head; beyond that distance velocities decrease to less than 1 foot per second.143

Clarke ( 2011 ) reports that a cutterhead dredge with a suction pipe diameter of 36” ( larger than the

one to be us ed for this project) has an intake velocity of approximately 95 cm/s at a distance of 1 meter from the dredge head and that the velocity reduces to approximately 40cm/s at a distance of 1.5 meters, 25cm/s at a distance of 2.0 meters and less than 10cm/s at a distance of 3.0 meters. Clarke also reports on swim tunnel performance tests conducted on juvenile and subadult Atlantic, white and lake sturgeon. He concludes that there is a risk of sturgeon entrainment only within 1 meter of a cutterhead dredge hea d with a 36” pipe diameter and suction of 4.6m/second. This is slightly larger than the pipe on t he dredge that will be used for deepening (30”)

.

The risk of an individual shortnose sturgeon being entrained in a cutterhead dredge is difficult to

calcul ate. While a large area overall will be dredged, the dredge operates in an extremely small area at any given time (i.e., the river bottom in the immediate vicinity of the intake). As shortnose and

Atlantic sturgeon are well distributed throughout the act ion area and an individual would need to be in the immediate area where the dredge is operating to be entrained (i.e., within 1 meter of the dredge head) , the overall risk of entrainment i s low. It is likely that the nearly all shortnose and

Atlantic stur geon in the action area will never encounter the dredge as they would not occur within 1 meter of the dredge. Information from the tracking studies in the James and Delaware river supports these assessments of risk, as none of the tagged sturgeon were att racted to or entrained in the operating dredges.

The entrainment of five sturgeon in the upper Delaware River indicates that entrainment of sturgeon in cutterhead dredges is possible. However, there are several factors that may increase the risk of

entr ainment in that area of the river as compared to the areas where cutterhead dredging will occur for the deepening. All five entrainments occurred during the winter months in an area where shortnose sturgeon are known to concentrate in dense aggregations; sturgeon in these aggregations

rest on the bottom and exhibit little movement and ma y be slow to respond to stimuli such as an oncoming dredge. Sturgeon in th at areas where dredging with the cutterhead dredge will occur are likely to be more active as evi denced by the movements of sturgeon tracked through Reach B in November through the end of December (ERC 2012).

In total, approximately 8 .2 million cy of material will be removed with a cutterhead dredge for the deepening (inclusive of approximately 5.6 million cy of material that will be removed from Reach

A A, A and D with either a cutterhead or hopper dredge) during a total of four dredge events

. Because the only entrainment of Atlantic or shortnose sturgeon in cutterhead dredges in the United

States has been the five shortnose sturgeon found at the disposal site in the upper Delaware River it is difficult to predict the number of shortnose or Atlantic sturgeon that are likely to be entrained during the deepening project. Based on the available inform ation presented here, entrainment in a cutterhead dredge is likely to be rare, and would only occur if a sturgeon was within 1 meter of the dredge head. This determination applies to all life stages of sturgeon that are likely to be in the

action area dur ing the time of year when dredging will occur, including young of year, juveniles and subadult shortnose and Atlantic sturgeon and adult shortnose sturgeon. However, because we know that entrainment is possible, we expect that over the duration of the dee pening project, some entrainment will occur. Based on the predicted rarity of the entrainment event, we expect that no more than one shortnose sturgeon and no more than one Atlantic sturgeon will be entrained in the

2012

- 2013 dredging of Reach e s A and D, no more than one Atlantic sturgeon and no more than one shortnose sturgeon will be entrained in the 2014 dredging of Reach AA and no more than one144

Atlantic sturgeon will be entrained in the 2016

- 2017 dredging of Reach B. The entrained shortnose
sturgeon c ould be a juvenile or adult. The entrained Atlantic sturgeon could be a young of year, juvenile or subadult. Based on the mixed stock analysis, it is likely that the entrained Atlantic sturgeon will originate from the New York Bight DPS but could also or iginate from the Gulf of Maine, Chesapeake Bay or South Atlantic DPS

. Given the low numbers of Carolina DPS fish in the action area and the low number of mortalities anticipated, it is unlikely that there will be any mortality of any Carolina DPS Atlantic sturgeon.

Due to the suction, travel through up to 3 miles of pipe and any residency period in the disposal area, all entrained shortnose and Atlantic sturgeon are expected to be killed.

7.1.2.2 Interactions with the Sediment Plume Dredging operatio ns cause sediment to be suspended in the water column. This results in a sediment plume in the river, typically present from the dredge site and decreasing in concentration as sediment falls out of the water column as distance increases from the dredge si te. Dredging with a pipeline dredge minimizes the amount of material re

- suspended in the water column as the material is essentially vacuumed up and transported to the disposal site in a pipe.

A s reported by ACOE, a near

- field water quality modeling of dredging operations in the Delaware River was conducted in 2001. The purpose of the modeling was to evaluate the potential for sediment contaminants released during the dredging process to exceed applicable water quality criteria. The model predicted su spended sediment concentrations in the water column at downstream distances from a working cutterhead dredge in fine

- grained dredged material. Suspended sediment concentrations were highest at the bottom of the water column, and returned to background con centrations within 100 meters downstream of the dredge.

In 2005, FERC presented NMFS with an analysis of results from the DREDGE model used to estimate the extent of any sediment plume associated with the proposed dredging at the Crown Landing LNG berth (FERC 2005) . The model results indicated that the concentration of suspended sediments resulting from hydraulic dredging would be highest close to the bottom and would decrease rapidly downstream and higher in the water column. Based on a conservative ( i.e., low) TSS background concentration of 5mg/L, the modeling results indicated that elevated TSS concentrations (i.e., above background levels) would be present at the bottom 2 meters of the water column for a distance of approximately 1,150 feet. Based on these analyses, elevated suspended sediment levels are expected to be present only within 1,150 feet of the location of the cutterhead. Turbidity levels associated with cutterhead dredge sediment plumes typically range from 11.5 to 282 mg/L with the h ighest levels detected adjacent to the cutterhead and concentrations decreasing with greater distance from the dredge (see U. Washington 2001).

Studies of the effects of turbid waters on fish suggest that concentrations of suspended solids can

reach tho usands of milligrams per liter before an acute toxic reaction is expected (Burton 1993). The studies reviewed by Burton demonstrated lethal effects to fish at concentrations of 580mg/L to 700,000mg/L depending on species. Sublethal effects have been obse rved at substantially lower turbidity levels. For example, prey consumption was significantly lower for striped bass larvae tested at concentrations of 200 and 500 mg/L compared to larvae exposed to 0 and 75 mg/L (Breitburg 1988 in Burton 1993). Studies with striped bass adults showed that pre

- spawners did not145

avoid concentrations of 954 to 1,920 mg/L to reach spawning sites (Summerfelt and Moiser 1976 and Combs 1979 in Burton 1993). While there have been no directed studies on the effects of TSS

on shor tnose or Atlantic sturgeon, shortnose sturgeon juveniles and adults are often documented in turbid water and Dadswell (1984) reports that shortnose sturgeon are more active under lowered light conditions, such as those in turbid waters.

The life stages of sturgeon most vulnerable to increased sediment are eggs and non

- mobile larvae which are subject to burial and suffocation. As noted above, no shortnose sturgeon eggs and/or larvae will be present in the action area. Juvenile and adult shortnose sturge on are frequently found in turbid water and would be capable of avoiding any sediment plume by swimming higher in the
water column. Reaches A and B overlap with one of the presumed Atlantic sturgeon spawning
sites. Dredging is scheduled to begin in these reaches in August. At that time of year, Atlantic sturgeon spawned that year (April/May) would be at least two

- three months old and would be mobile; these fish are no longer considered larvae, but are YOY (see Table 4 in Section 4.7 above). All sturgeon in the action area at this time of year would be sufficiently mobile to avoid any sediment plume. Therefore, any shortnose and Atlantic sturgeon in the action area during dredging would be capable of avoiding any sediment plume by swimming around it.

La boratory studies (Niklitschek 2001 and Secor and Niklitschek 2001) have demonstrated shortnose sturgeon are able to actively avoid areas with unfavorable water quality conditions and that they
will seek out more favorable conditions when available. While the increase in suspended sediments may cause shortnose sturgeon to alter their normal movements, any change in behavior is likely to be insignificant as it will only involve movement further up in the water column. Based on this information, any increase in suspended sediment is not likely to affect the movement of shortnose sturgeon between foraging areas and/or concentration areas during any phase of dredging or otherwise negatively affect shortnose sturgeon in the action area.

7. 3 Dredged Material D isposal As indicated above, all material removed at Reaches AA, A, B, and D will be disposed of at an upland location. When a cutterhead dredge is used, the material is piped directly from the intake to an upland disposal area. The pipe will extend up t o 3 miles, depending on the distance between the dredge site and the disposal site. The pipe will be approximately 30” in diameter and be laid on the river bottom. While the presence of the pipe will cause a small amount of benthic habitat to be
unavaila ble to sturgeon and sea turtles , the extremely small area affected will cause any effects to be insignificant and discountable. There are not likely to be any other effects to sturgeon or sea turtles from disposal of material at upland disposal sites.

Material removed from Reach E , approximately 4 million cy of material will be disposed of at the Kelly Island and Broadkill Beach disposal areas. For these projects, sand will be placed along the shoreline. While this could cause a small increase in susp ended sediment in the immediate vicinity of sand placement, any effects are likely to be minor and temporary. Impacts associated with this action include a short term localized increase in turbidity during disposal operations. During the discharge of sed iment at a disposal site, suspended sediment levels have been reported as high as 500mg/L within 250 feet of the disposal vessel and decreasing to background levels (i.e., 15

- 100mg/L depending on location) within 1000

- 6500 feet (ACOE 1983). For this proje ct, the ACOE has reported that because the dredged material is clean sand, the material will settle out quickly and146

any sediment plume will be localized and temporary. Any sea turtles or sturgeon in the vicinity of the beach disposal sites during disposal may temporarily avoid the disposal area; however, as any effects to movements will be small and temporary, these effects will be insignificant. Effects of disposal on prey resources are considered in section 7.5.

7. 4 Blasting and Mechanical Dredging

A s part of the proposed deepening project approximately 77,000 cubic yards of bedrock, covering 18 acres near Marcus Hook, Pennsylvania (River Mile 76.4 to River Mile 84.6) would be removed to deepen the navigation channel in this area

. Blasting will occur at Reach B (Marcus Hook) from
December 201 3

- January 201 4 with mechanical rock removal continuing through February 201 4

. During this time of year, the majority of adult shortnose sturgeon are expected to be located at the overwintering area between mile 118 and 131 which is over 33 river miles from the blasting site (RM 76.4

- 84.6)

.

S tudies conducted by the ACOE in March 2005, indicate that sturgeon are present in the Marcus Hook area during the winter months. While the three sturgeon observed on video at the Marcus Hook area could not be identified to species, the size of the fish suggests that they could be adult shortnose sturgeon or subadult Atlantic sturgeon

. T he density estimate calculated in Versar 2006 (which was based on the video monitoring a t Marcus Hook) indicates that there are 0.005 sturgeon/100 m , or one sturgeon per 20,000m.

Blasting operations would occur up to five days a week during th e December

– January blasting period , but the actual blasting would only occur for a brief period e ach day

. Blasting could impact
sturgeon by causing physical injury or mortality to individual fish and by d isplacing sturgeon from the area where blasting is occurring. Effects to sturgeon also include modifications to the benthic community and reduced foraging opportunities.

The blasting plan has been designed to minimize the potential for fish mortality. As such, as noted above, all blasting will occur between December and January when fish density is expected to be
lowest. C ontrolled blasting met hods will be employed such as delayed blasting and “stemming” to reduce the amount of energy that would impact fish. In addition, fish avoidance techniques will be utilized to drive fish away from the proposed blasting area to reduce the detrimental impac t to the fish and benthic community. Monitoring impacts to fish from the blasting will also be conducted to verify that impacts are minimal. Additionally, the following measures will be taken:

 Scare charges will be used for each blast. A scare charge is a small charge of explosives detonated immediately prior to a blast for the purpose of scaring aquatic organisms away from the location of an impending blast. Two scare charges will be used for each blast. The detonation of the first scare charge will be a t 45 seconds prior to the blast, with the second scare charge detonated 30 seconds prior to the blast. Some marine mammals and fish may not locate the origin of the first scare charge. The second scare charge allows these creatures to better locate the sou rce of the charge and maneuver away from the source.

 Blast pressures will be monitored and upper limits will be imp osed on each series of 5 blasts, with a verage pressure not exceed ing 70 pounds per square inch (psi) at a147 distance of 140 feet and m aximum pe ak pressure not exceed ing 120 psi at a distance
of 140 feet.

 Surveillance for schools of fish will be conducted by vessels with sonar fish finders for a period of 20 minutes before each blast, and if fish schools are detected, blasting will be delayed unti l they leave. The surveillance zone will be approximately circular with a radius of about 500 feet extending outward from each blast set.

7. 4 .1 Available Information on Effects of Blasting on Fish
There have been numerous studies that have assessed the d irect impact of underwater blasting on fish. While not all of the studies have focused exclusively on shortnose sturgeon, the results demonstrate that blasting does have an adverse impact on fish. Teleki and Chamberlain (1978) found that several physical and biological variables were the principal components in determining the magnitude of the blasting effect on fish. Physical components include detonation velocity, density of material to be blasted, and charge weight, while the biological variables are fish shape, location of fish in the water column, and swimbladder development. Composition of the explosive, water depth, and bottom composition also interact to determine the characteristics of the explosion pressure wave and the extent of any resultant fish kill. Furthermore, the more rapid the detonation velocity, the more abrupt the resultant hydraulic pressure gradient, and the more difficulty fish appear to have adjusting to the pressure changes.

A blasting study conducted in Nanticoke, Lake Erie , found that fish were killed in radii ranging from 20 to 50 m for 22.7 kg per charge and from 45 to 110 m for 272.4 kg per charge (Teleki and Chamberlain 1978). Approximately 201 blasts were detonated in 4 to 8 m of water. Of the thirteen fish species s tudied, mortality differed by species at identical pressure. No shortnose sturgeon were tested. Common blast induced injuries included swimbladder rupturing and hemorrhaging in the coelomic and pericardial cavities.

The effects of blasting on thirteen s pecies of fish were measured in deep water (46 m) explosion tests in the Chesapeake Bay opposite the mouth of the Patuxent River (Wiley et al. 1981). No shortnose sturgeon were tested. Fish were held in cages at varying depths during 16 midwater

detonati ons with 32 kg explosives. For the 32 kg charges, the pressure wave was propagated horizontally most strongly at the depth at which the explosion occurred. While the extent of the injury varied with species, the fish with swimbladders are far more vulner able than those lacking swimbladders, and toadfish and catfish were the most resistant to damage of those species with a
swimbladder.

Many fish exposed to blasting exhibit injuries to the kidney and swimbladder, thus affecting their fitness (Wiley et al. 1981). Efficient osmoregulation is very important in fishes; even slight bruises to the kidney could seriously affect this efficiency, causing at least a higher expenditure of energy. Burst swimbladders cause the fish to lose their ability to regulate t he volume of their swimbladders (destroying buoyancy control) and probably increases their vulnerability to predators.

Wiley et al. (1981) found that the oscillatory response of the swimbladder was a likely cause of the fishes’ injuries. Their analyses d emonstrate that fish mortality is strongly dependent on the depth of the fish. For larger fish (like shortnose sturgeon) at shallower depths (~7 to 11 m), the swimbladder148

does not have time to fully respond to the positive portion of the explosion wave. Thus, at shallow depth the larger fish are in effect protected from harm by their swimbladders, while at the resonance depth their swimbladders are burst.

Burton (1994) conducted experiments to estimate the effects of blasting to remove approximately 1,6 00 cubic yards of bedrock during construction of a natural gas pipeline in the Delaware River near Easton, Pennsylvania (upriver from Marcus Hook area). American shad and smallmouth bass juveniles were exposed to charges of 112.5 and 957 kg of explosives in depths ranging between 0.5 and 2 m. The fish were caged at a range of distances from the blasts. Tests with American shad were inconclusive due to an unavoidable delay between stocking the chambers and detonation of the explosives; however, successful tests with smallmouth bass suggested that the explosives created a maximum kill radius of 12 m (for both charge magnitudes). No fish were killed by the shock wave at the 24 m position and beyond.

The preceding studies were conducted on other fish specie s, but the nature of the injuries and the optimal distance from the detonations could be applied to blasting activities and shortnose sturgeon. The effects of blasting on shortnose sturgeon have been examined however. Test blasting was
conducted in the W ilmington Harbor, North Carolina, in December 1998 and January 1999 in order to adequately assess the impacts of blasting on shortnose sturgeon, the size of the LD1 area (the lethal distance from the blast where 1% of the fish died), and the efficiency of an air curtain for mitigating blast effects. An air curtain is a st r eam of air bubbles created by a manifold system on the river bottom surrounding the blast. In theory, when the blast occurs the air bubbles are compressed, and the blast pressure is redu ced outside the air curtain.

As explained in Moser 1999 (a) , t he test blasting consisted of 32

- 33 blasts (3 rows of 10 to 11 blast holes per row with each hole and row 10 feet apart), about 24 to 28 kg of explosives per hole, stemming each hole with angu lar rock, and an approximate 25 msec delay after each blast. During test blasting, 50 hatchery reared juvenile striped bass and shortnose sturgeon were placed in 0.25” plastic mesh cylinder cages (2 feet in diameter by 3 feet long) 3 feet from the bottom (worst case scenario for blast pressure as confirmed by test blast pressure results) at 35, 70, 140, 280, and 560 feet upstream and downstream of the blast location. For each test, 200 caged shortnose sturgeon
were held at a control location 0.5 mi from t he test blast area. The caged fish had a mean weight of 55 grams. The cages were enclosed in a 0.6” nylon mesh sock to prevent the escape of any sturgeon if the cage was damaged during blasting. The caging experiments were conducted during a total of

se ven blasts between December 9, 1998 and January 7, 1999. Three test blasts were conducted with the air curtain in place and 4 were conducted without the air curtain. The air curtain (when tested) was 50 feet from the blast. The caged fish were visually inspected for survival just after the blast

and after a 24

- hour holding period. Mortality rates for control fish were generally low, with 15 fish dead or mortally injured on inspection (out of a total of 1

, 400 samples). The numbers of injured, dead, and mortally injured sturgeon varied greatly between tests. Of the 500 fish tested during each blast, mortalities (dead or mortally injured) ranged from 1 to 89 fish. Mortality rates for shortnose sturgeon as compared to the other species tested were low, wi th the author of the report concluding that this was likely due to the larger size of shortnose sturgeon tested (approximately 30cm average) as compared to the size of the other species (3cm

– 20cm).

In addition to the external examinations of fish imme diately following the blast and 24 hours later, a149

sample of 10 randomly selected, apparently unaffected, sturgeon from each of seven cages nearest the blasts were sacrificed and later necropsied (Moser 1999b)

. After the necropsy was completed,

the total e xtent of injury was scored on a scale of 0

- 10, with 10 being the most severe level of injury observed. It is important to note that all of the fish necropsied were alive 24 hours following the blast and appeared to be uninjured based on the initial extern al observations. Fish scored at 7 or higher were thought to be unlikely to survive and function normally with the injuries they sustained. Injuries ranged from no sign of external injury to extensive internal hemorrhaging and ruptured
swim bladders.

A ll fish necropsied were in apparently normal condition when sacrificed 24 hours after the blast. The fish were swimming normally in their cages and exhibited no outward signs of stress or physical discomfort (Moser 1999b). However, internal examinations revealed extensive damage in many of the fish necropsied. Of the 70 sturgeon necropsied, ten had an index of injury of 7 or higher, meaning that they likely would not have survived the injuries sustained during blasting. While sturgeon had relatively lit tle damage to their swim bladders, they more often had distended intestines with gas bubbles inside and hemorrhage to the body wall lining. In the fish caged 70 feet away, there was no sign of hemorrhage or swim bladder damage but two of the fish exhibite d distended intestines, which may have been caused by the blast. Moser (1999) speculated that sturgeon fared better than striped bass because their air bladder has a free connection to the esophagus, allowing gas to be expelled rapidly without damage to t he swim bladder. Additionally, there was no clear relationship between size and the Index of Injury, size and gut fullness, or Index of Injury and gut fullness. The author notes that external observation of the fish following blasting
was not sufficient to identify all blast

- related injuries and that many of the internal injuries observed in fish that externally appeared unaffected would have resulted in eventual mortality.

7. 4 .2 Effects of Proposed Blasting on Shortnose and Atlantic Sturgeon
The dist ribution of adult sturgeon in the lower Delaware River is relatively unknown. While the immediate area to be blasted (river mile 76.4 to river mile 84.6) is not a known concentration area

for adult shortnose sturgeon, the species has been documented below Philadelphia and in the vicinity of the blasting area. Due to the lack of studies on overwintering sturgeon outside of the known upstream concentration area, the best available information is the survey conducted by ACOE in 2005 (Versar 2006). As noted above, in this study, video and net sampling was conducted with three sturgeon observed on video in the Marcus Hook area and no shortnose sturgeon captured with any nets. Atlantic sturgeon are known to occur in the Marcus Hook area year round, with this

a rea recognized as a concentration area for juveniles.

S turgeon appear to be able to withstand some degree of blasting at a certain distance from the detonation, but it is apparent from the study results outlined above that blasting may injure the specie s both internally and externally. The presence of adults and/or juveniles in the action area during blasting could result in injury and / or mortality. The severity of the impact that blasting has on fish is dependent on several biological and physical var iables. The physical variables are detonation velocity, density of material to be blasted and charge weight, while the biological variables are fish shape, location of fish in the water column, and swimbladder development( Teleki and Chamberlain 1978). T he interactions of other factors such as composition of explosive, water depth, and bottom composition, determine the extent of the pressure wave and consequential fish

kills (Teleki and Chamberlain 1978). Results from previous blasting studies conducted on thirteen150

species of fish other than shortnose sturgeon, revealed that swimbladder rupture and hemorrhaging in the pericardial and ceolomic cavities were common injuries that resulted. While studies on shortnose sturgeon revealed that they also suffer f rom swimbladder ruptures, more common blast induced injuries that resulted were distended intestines with gas bubbles inside and hemorrhage to the body wall lining (Moser 1999 a, Moser 1999b ). Overall, however, it is difficult to determine the

extent of in ternal injury because many fish did not exhibit external stress or physical discomfort despite extensive internal damage. Approximately 10% of f ish that appeared to have suffered no injury, sustained injuries from the blasting that it is speculated would have lead to their eventual death. If shortnose sturgeon are present in the action area during blasting, they may suffer injury and/or mortality.

Based on the information presented above, s hortnose and Atlantic sturgeon within 500 feet of a detonation resulting in peak pressures of 120 psi and average pressure of 70 psi, consistent with the proposed action would be exposed to noise and pressure levels that could cause adverse effects. These effects could range from avoidance behaviors, temporary stunning, external or internal injury with full recovery, injury with delayed mortality or injury sufficient to cause immediate mortality. Based on the best available information, it is likely that the smaller the fish is and the closer it is t o the blast the more significant the injuries would be.

The ACOE will utilize measures to minimize the potential for blasting to occur if shortnose or Atlantic sturgeon are within 500 feet of the blast site. T he ACOE will use a combination of sonar

and other imaging (video or DIDSON for example) techniques to monitor an area with a radius of 500 feet surrounding the blast site. Outside of the 500 foot zone, no effects to fish are likely (ACOE 2008 and ACOE 2009). Monitoring will begin 20 minutes prior to the detonation and no blasting will occur until any fish observed have left the area. As such, the risk of shortnose or Atlantic sturgeon being within close enough proximity to be injured or killed during a detonation is low. However, as the survey w ill need to stop at some point so that detonation can begin, there is a small risk that a sturgeon could swim into the area prior to or during blasting and not be detected. As this is likely to be a rare occurrence, it is not likely to happen more than on ce during the entirety of the blasting period. Based on the density estimates of sturgeon in the Marcus Hook area (0.005/100m) NMFS has estimated that at any given time, no more than 3 sturgeon are likely to
occur in an area at Marcus Hook with a radius o f 500 feet. As such, it is reasonable to expect that if the monitoring is not successful, then no more than 3 sturgeon will be close enough to the detonation site to experience effects ranging from temporary stunning to death. As explained above, sturgeo n within 500 feet of the blast are expected to experience effects that could range from avoidance of the area to mortality. As such, we expect that over the course of the winter when blasting occurs, no more than 3 sturgeon will be stunned, injured or kil led due to exposure to a
detonation. It is difficult to estimate what portion of these sturgeon will be shortnose and what portion will be Atlantics; however, given that Atlantic sturgeon are more likely to be present in the
Marcus Hook area in the winter than shortnose, we expect that no more than 1 of the sturgeon exposed to the detonation will be a shortnose sturgeon and the other two will be subadult or juvenile Atlantic sturgeon.

After blasting is completed, mechanical dredging will be used t o remove debris. In rare occurrences shortnose sturgeon have been captured in dredge buckets and placed in the scow. Very few mechanical dredge operations have employed observers to document interactions between sturgeon151

and the dredge. However, capture s of shortnose and Atlantic sturgeon have been documented in the Kennebec River, Maine. I t is unknown if this is due to a uni que situation in this river or if captures of sturgeon occur at other projects but that t he intense observer coverage at dredging operations in
this river has allowed detection here . Based on the occurrence of shortnose and Atlantic sturgeon in the area where mechanical dredging will take place and the documented vulnerability of this species to capture with mechanical dredges, it i s likely that a small number of sturgeon will be captured by the mechanical dredge removing debris following blasting. Due to the relatively low level of risk that an individual sturgeon would be captured in the slow moving dredge bucket, no more than 1

s hortnose sturgeon and no more than 1 Atlantic s turgeon is likely to be captured when mechanical dredging is used. Stur geon captured in a dredge bucket could be injured or killed. Sources of mortality include injuries suffered during contact with the dred ge bucket or burial in the dredge
scow. Of the three captures of sturgeon with mechanical dredges in the Kennebec River (two shortnose, 1 Atlantic), one of the shortnose sturgeon was killed. This fish suffered from a large laceration, likely experienced due to contact with the dredge bucket. As the risk of mortality once captured is high, it is reasonable to expect that both the shortnose and Atlantic sturgeon likely to be captured in the dredge bucket could suffer injury or mortality due to contact with the dredge bucket or through suffocation due to burial in the scow.

In summary, blasting and subsequent removal of debris with a mechanical dredge is likely to result

in injury or mortality to no more than 2 Atlantic sturgeon and 1 shortnose sturgeon v ia exposure to the sound and pressure of detonations, and the capture and associated injury or mortality of no more

than 1 shortnose sturgeon and 1 Atlantic sturgeon in mechanical dredges. The affected shortnose sturgeon could be a juvenile or adult. Aff ected Atlantic sturgeon could be YOY , juveniles or subadults. Based on the mixed stock analysis, it is likely that the affected Atlantic sturgeon will originate from the New York Bight DPS but could also originate from the Gulf of Maine, Chesapeake Bay or South Atlantic DPS. Given the low numbers of Carolina DPS fish in the action area and the low number of mortalities anticipated, it is unlikely that there will be any mortality of any Carolina DPS Atlantic sturgeon.

7. 5 Maintenance Dredging The propo sed action includes dredging necessary to maintain the channel at 45 feet once deepening has been completed . The proposed action under consideration in this consultation includes 10 years of maintenance dredging. The ACOE has indicated that, on average, approximately 472,000 cubic yards of material will be removed from Reaches D and E (collectively) each year in order to
maintain the 45 foot channel. Dredging will not occur within this entire area each year, but would only occur in any areas where shoali ng created a navigational hazard. As explained above, NMFS has estimated an entrainment rate for sea turtles in hopper dredges operating in Reaches D and E of the Philadelphia to the Sea project as 1 sea turtle per every 450,000 cubic yards of material re moved during the time of year when sea turtles are likely to be present (i.e., May

– November 15).

Provided that maintenance occurs during the May

– November window when sea turtles are likely to be present and that it occurs with a hopper dredge , appro ximately 1 sea turtle is likely to be

entrained for each 45 0,000 cy of material removed. Over the 10 year maintenance cycle, approximately 4,720,000 cy of material will be removed from the Bay. No more than 11 sea turtles are likely to be killed over the 10 year maintenance cycle, with no more than 1 being a Kemp’s ridley and th e remainder being loggerheads. Also as explained above, it is extremely unlikely that152

any shortnose or Atlantic sturgeon will be entrained by a hopper dredge operating in Reaches D or E. As such, no sturgeon are likely to be entrained during maintenance dredging operations in these
reaches.

Maintenance dredging will also occur in the river. The ACOE has indicated that annually on

average, approximately 3,845,000 cy of material will be removed from the river (reaches AA, A, B and C) , typically occurring over a two month period between August and December. The ACOE has also indicated that a cutterhead dredge will be used for maintenance dredging activities. As explained above, NMFS has calculated an entrainment rate of 1 shortnose sturgeon and 1 Atlantic sturgeon for every cutterhead dredge event in the river. As such, no more than 1 shortnose sturgeon and no more than 1 Atlantic sturgeon are likely to be killed during each yea r of maintenance dredging. Based on the mixed stock analysis, it is likely that the affected Atlantic sturgeon will originate from the New York Bight DPS but could also originate from the Gulf of Maine, Chesapeake Bay or South Atlantic DPS. Given the low numbers of Carolina DPS fish in the action area and the low number of mortalities anticipated, it is unlikely that there will be any mortality of any Carolina DPS Atlantic sturgeon.

7. 6 Effects on Benthic Resources and Foraging

7. 6 .1 Dredging

7. 6 .1 .1 Effects to Sea Turtles Since dredging involves removing the bottom material down to a specified depth, the benthic environment will be impacted by dredging operations. No sea grass beds occur in the areas to be dredged with a hopper dredge, therefore g reen sea turtles will not use the areas as foraging areas. Thus, NMFS anticipates that the dredging activities are not likely to disrupt normal feeding behaviors for green sea turtles. Records from previous dredge events occurring in the lower

channel in dicate that some benthic resources, including whelks, horseshoe crabs, blue cra b s and rock crabs are entrained during dredging. Other sources of information indicate that potential sea turtle forage items are present in the channel, including jellyfish, c lams, mussels, sea urchins, whelks, horseshoe crabs, blue crabs and rock crabs (ACOE 1997, 2009)

.

Of the listed species found in the action area, loggerhead and Kemp’s ridley sea turtles are the most likely to utilize the channel areas for feeding with the sea turtles foraging mainly on benthic species, namely crabs and mollusks (Morreale and Standora 1992, Bjorndal 1997)

. As noted above, suitable sea turtle items occur in the channel. As preferred sea turtle and sturgeon foraging items occur at

the c hannel areas and depths are suitable for use by sea turtles, some foraging by these species likely occurs at these sites.

Dredging can cause indirect effects on sea turtles by reducing prey species through the alteration of the existing biotic assembla ges. Kemp’s ridley and loggerhead sea turtles typically feed on crabs, other crustaceans and mollusks. Some of the prey species targeted by turtles, including crabs, are mobile; therefore, some individuals are likely to avoid the dredge ; however, there i s likely to be some entrainment of sea turtle prey items. The Delaware River estuary is approximately 700 square miles. The Philadelphia to the Sea navigation channel is approximately 15.3 square miles. The ACOE has estimated that approximately 8.5 squa re miles will be dredged (approximately 55% of153

the existing channel, or 1.2% of the estuary) with no more than 0.33% of the estuary dredged in a particular year. While there is likely to be some reduction in the amount of prey in the channel areas, the ar ea affected is small (i.e., less than 1% of the estuary annually) and the action will result in the loss of only a portion of the available forage in the dredged area.

Depending on the species, recolonization of a dredged channel can begin in as short a s a month (Guerra

- Garcia and Garcia

- Gomez 2006). The dredged area is expected to be completely recolonized by benthic organisms within approximately 12 months (USACE 2001, US DOI 2000). These conclusions are supported by the conclusions of a benthic habi tat study which examined an area of Thimble Shoal following dredging and concluded that recolonization of the dredged area was rapid with macrobenthic organisms abundant on the first sampling date following cessation of dredging activities (less than a mon th later).

The placement of sand at the beneficial use sites may affect benthic resources in those areas. Mobile organisms, such as crabs are expected to be able to avoid the area where material is being deposited. Concern has been raised that the dep osition of material on these beaches could affect spawning horseshoe crabs which sea turtles eat. Spawning occurs during the full and new moons in May and June and peaks during evening high tides. Material will be deposited at Broadkill Beach in Septembe r

– December and is therefore unlikely to affect spawning horseshoe crabs. Material will be deposited on Kelly Island between April and August; therefore there is the potential for dredged material disposal to overlap with horseshoe crab spawning; however , due to erosion at this beach it is not thought to be a constant or consistent spawning site (Weber 2001). Restoration of both of these beaches with dredged material will restore beach area and is likely to increase the future potential for supporting sp awning horseshoe crabs.

Based on this analysis, while there will be a small reduction in sea turtle prey due to dredging, these effects will be insignificant to foraging loggerhead and Kemp’s ridley sea turtles. No effects to the prey base of green or leatherback sea turtles are anticipated.

Shortnose and Atlantic sturgeon feed on a variety of benthic invertebrates. The preferred forage
item in the Delaware River is the Asiatic river clam ( Corbicula manilensis ). The proposed dredging is likely to entrain and kill at least some of these potential forage items. Given the limited mobility of most benthic invertebrates that sturgeon feed on, most are unlikely to be able to actively avoid the dredge. Benthic sampling done by O’Herron and Hastings (198 5) in association with past ACOE maintenance dredging in the Delaware River found that Corbicula recolonized the dredge areas during the subsequent growing season. However, the post

- dredge individuals collected were smaller than pre

- dredge individuals and provided less biomass. O’Herron and Hastings (1985) found that adult shortnose sturgeon may not be able to efficiently utilize new molluscan colonizers due to the limited biomass until the end of the second growing season after dredging. Based on this

i nformation, sturgeon should only be exposed to a reduction in forage in the areas where dredging
occurs for one to two seasons immediately following dredging. As explained above for sea turtles, the area dredged in any particular year is a very small perc entage of the available foraging habitat in the river. Because effects to benthic prey will be limited to the area immediately surrounding the dredged area, the potential for disruption in foraging is low. Brundage (1985) and Hatin et al. (2007) both fou nd that sturgeon were more common outside of the deepwater channel, which suggests that loss of forage items within the channel would have an insignificant effect on these154

species.

7. 6 .2 Blasting Shortnose sturgeon generally feed when the water temperat ure exceeds 10°C and in general, foraging is heavy immediately after spawning in the spring and during the summer and fall, with lighter foraging during the winter (ACOE 2000, NMFS 1996). The likelihood that sturgeon are actively foraging in the a rea wher e blasting will occur is low, but shortnose sturgeon could still be feeding in the vicinity of the blasting. The foraging habits of Atlantic sturgeon in the Marcus Hook area are unknown, but it is presumed that some foraging occurs in this area. As noted above, sturgeon in the Delaware River primarily forage on the Asiatic river clam

. Fine clean sand, clay, and coarse sand are preferred substrates for this clam, although this species may be present in lower numbers on almost any substrate (Gottfried and O sborne 1982, Belanger et al. 1985, Blalock and Herod 1999). The substrate in the area proposed for blasting is primarily rock and is not expected to be a concentration area for this prey species, but Corbicula has been found on gravel and bedrock

substrat es in the Susquehanna River. Few other benthic invertebrates are present in the rocky area where blasting will occur. However, any prey species that is present on the rock that will be
removed by blasting or in the immediate project area would be destroy ed. The impact should not extend beyond the immediate blasting area as previous studies indicate that invertebrates are relatively insensitive to pressure related damage from underwater detonations (ACOE 2000). This

could be attributable to the fact that all the invertebrate species tested lack gas

- containing organs, which have been implicated in internal damage and mortality in vertebrates (Keevin and Hempen 1997). Nevertheless, the area immediately surrounding the blast zone would be void of preferred sturgeon prey and thus, sturgeon would not be likely to forage in this area.

It is important to note however, that while blasting will destroy all of the prey resources in the immediate area, the impacts will not be permanent and as discussed above for dr edging, the benthic community will likely reestablish within two years. However, the area where blasting will occur is very small; representing only approximately 1% of the channel area and even smaller percentage of the area where foraging is known to oc cur.

NMFS anticipates that while the dredging activities may temporarily disrupt normal feeding
behaviors for sea turtles and sturgeon by causing them to move to alternate areas, the action is not likely to remove critical amounts of prey resources from the action area and any disruption to normal foraging is likely to be insignificant. Additionally, as (1) the area to be affected by dredging

and blastin g is small; (2) few motile organisms will be affected by the proposed dredging (3),

recolonization of the benthic community will be rapid and complete within 2 years ; and, (4) the same area will not be dredged more frequently than once every few years, we have determined that any effects to foraging sea turtles and sturgeon will be temporary and insignifi cant.

7. 7 Dredge and Disposal Vessel Traffic There have not been any reports of dredge vessels colliding with listed species but contact injuries resulting from dredge movements could occur at or near the water surface and could therefore involve any of the listed species present in the area. Because the dredge is unlikely to be moving at speeds greater than three knots during dredging operations, blunt trauma injuries resulting from contact with the hull are unlikely during dredging. It is more likely that contact injuries during actual dredging would involve the propeller of the vessel. Contact injuries with the dredge are more155

likely to occur when the dredge is moving from the dredging area to port, or between dredge

locations. While the distance b etween these areas is relatively short, the dredge in transit would be moving at faster speeds than during dredging operations, particularly when empty while returning to
the borrow area.

The dredge vessel may collide with sea turtles when they are at t he surface. These species have been documented with injuries consistent with vessel interactions and it is reasonable to believe that the dredge vessels considered in this Opinion could inflict such injuries on sea turtles, should they
collide. As mention ed, sea turtles are found distributed throughout the action area in the warmer months, generally from May through mid

- November.

Interactions between vessels and sea turtles occur and can take many forms, from the most severe (death or bisection of an animal or penetration to the viscera), to severed limbs or cracks to the carapace which can also lead to mortality directly or indirectly. Sea turtle stranding data for the U.S. Gulf of Mexico and Atlantic coasts, Puerto Rico, and the U.S. Virgin Islands show that between 1986 and 1993, about 9% of living and dead stranded sea turtles had propeller or other boat strike injuries (Lutcavage et al. 1997). According to 2001 STSSN stranding data, at least 33 sea turtles (loggerhead, green, Kemp’s ridley and leatherbacks) that stranded on beaches within the northeast (Maine through North Carolina) were struck by a boat. This number underestimates the actual number of boat strikes that occur since not every boat struck turtle will strand, eve ry stranded turtle will not be found, and many stranded turtles are too decomposed to determine whether the turtle was struck by a boat. It should be noted, however, that it is not known whether all boat strikes were the cause of death or whether they occ urred post

- mortem (NMFS SEFSC 2001).

Information is lacking on the type or speed of vessels involved in turtle vessel strikes. However, there does appear to be a correlation between the number of vessel struck turtles and the level of recreational boat traffic (NRC 1990). Although little is known about a sea turtle’s reaction to vessel traffic, it is generally assumed that turtles are more likely to avoid injury from slower

- moving
vessels since the turtle has more time to maneuver a nd avoid the vessel. The speed of the dredge is not expected to exceed 3 knots while dredging or while transiting to the pump out site with a full load and it is expected to operate at a maximum speed of 10 knots while empty. In addition, the

risk of shi p strike will be influenced by the amount of time the animal remains near the surface of the water. For the proposed action, the greatest risk of vessel collision will occur during transit between shore and the areas to be dredged. The presence of an exp erienced endangered species observer who can advise the vessel operator to slow the vessel or maneuver safely when sea turtles are spotted will further reduce the potential risk for interaction with vessels. The addition of one to two slow moving vessels in the action area have an insignificant effect on the risk of interactions
between sea turtles and vessels in the action area.

Available information on the risk of vessel operations to shortnose sturgeon is discussed in the
Environmental Baseline secti on above. Aside from th e incidents discussed there , no information on the characteristics of vessels that are most likely to interact with shortnose sturgeon is available and there is no information on the rate of interactions. However, assuming that the likelihood of interactions increases with the number of vessels present in an area, we have considered the likelihood that an increase in ship traffic associated w ith dredging, blasting and disposal would
increase the risk of interactions between shortnos e sturgeon and vessels in the action area.156

Approximately 3,000 cargo vessels transit the Delaware River annually as well as numerous smaller
commercial and recreational vessels. Dredging, blasting and disposal for deepening and maintenance of the deepene d channel is likely to result in an increase of one to two slow moving vessels during the times when project operations are ongoing (typically a 2

- 3 month period each year). Based on the high ship traffic currently experienced in the action area, it is un likely that an increase of only one to two slow moving vessel s per day would increase the risk of interactions between shortnose sturgeon and vessels operating in the Delaware River generally. As such, the increase in risk is likely to be insignificant an d interactions between project vessels and shortnose sturgeon are extremely unlikely to occur.

Information regarding the risk of vessel strikes to Atlantic sturgeon is discussed in the Status of the Species and Environmental Baseline sections above. As explained there, we have limited information on vessel strikes and many variables likely affect the potential for vessel strikes in a given area. Assuming that the risk of vessel strike increases with an increase in vessel traffic, we
have considered whe ther an increase in vessel traffic in the action area during dredging, blasting and disposal (one to two slow moving vessels per day) would increase the risk of vessel strike for Atlantic sturgeon in this area. Given the large volume of traffic on the riv er and the wide variability in traffic in any given day, the increase in traffic of one to two vessel s per day is negligible and the increased risk to Atlantic sturgeon is insignificant

.

7. 8 Effects of Deepening on Substrate/Habitat Type During the cons ultation process, NMFS requested information on the potential of the proposed deepening to alter the substrate type in areas to be dredged. If substrate type was altered, the benthic community that recolonizes the dredged area could be fundamentally diffe rent than the original community and this could affect the availability of forage items for listed species. However, the ACOE has indicated that the remaining sub

- surface strata below the dredging pay

prism is consistent with the maintenance material remo ved during a typical dredging operation. The maintenance material removed from this project historically consists of a mixture of sand and mud. Typical material densities vary in range from silt/mud between 1137 (g/l) to 1337 (g/l) and sands 1526 (g/l) to 1874 (g/l). The ACOE has indicated that the same ratio is anticipated as a result of the deepening project and that no alterations in the type of sediment occurring in the dredged areas will result from the proposed action. ACOE has also indicated that w hile blasting within the Marcus Hook area will remove bedrock, it is only removing enough rock to deepen the area to 45 feet. Because only the top layers of the rock will be removed, and the bedrock extends deep into the river bottom, rock will remain in all areas where blasting will occur.

At our request the ACOE conducted sediment sampling both before and after deepening occurred in Reach B (ACOE 2012). These reports confirmed that sediment type was unchanged after deepening.

Based on the informat ion provided by ACOE and confirmation sampling that has occurred to date, no changes in substrate type are anticipated to result from dredging. Effects to forage items are
considered in section 7. 5 and effects to Atlantic sturgeon spawning are considered in section 7. 9

.157

7. 9 Effects of Deepening on Salinity Salinity is the concentration of inorganic salts (total dissolved solids, or "TDS") by weight in water, and is commonly expressed in units of "psu" (practical salinity units) or "ppt" (parts per th ou sand). By example, ocean water with a salinity of 30 ppt contains ~30 grams of salt per 1

, 000 grams of

water. As explained above, the action area experiences a wide variety of salinity influenced by multiple factors. Also as explained above, the salinit y gradient effects the distribution of listed species in the action area with sea turtles less likely to occur as salinity decreases and shortnose sturgeon more prevalent in the low salinity reaches. Concerns have been raised that the proposed deepening c ould alter the salinity regime in the estuary.

7. 9 .1 Existing Salinity Conditions in the Delaware River The distribution of salinity in the Delaware estuary exhibits significant variability on both spatial and temporal scales, and at any given time ref lects the opposing influences of freshwater inflow from tributaries (and groundwater) versus saltwater inflow from the Atlantic Ocean. Saltwater inflow from the ocean is in turn dependent on the tidal discharge and the ocean salinity. Salinity at the bay mouth typically ranges from about 28 to 32 ppt. Tributary inflows by definition have "zero" salinity in the sense of ocean

- derived salt; however, these inflows contain small but finite concentrations of dissolved salts, typically in the range of 100 to 2 50 parts per million (ppm) or from 0.1 to 0.25 ppt TDS.

A longitudinal salinity gradient is a permanent feature of salt distribution in the Delaware estuary. That is, salinity is always higher at the mouth and downstream end of the system and decreases in the upstream direction. The upstream limit of ocean

- derived salinity is customarily treated as the location of the 0.5 ppt (or 500 ppm) isohaline. For purposes of monitoring water quality in the Philadelphia

- Camden area, the DRBC has adopted the 7

- day average location of the 250 ppm isochlor as the “salt line”. Because chloride ions represent approximately 55% by weight of the total dissolved ions in seawater, a “salt line” defined by a chlorinity of 250 ppm approximates a salinity of 450 ppm, or 0.45 ppt.

There is also a lateral salinity gradient present in the bay portion of the estuary, between the mouth and about RM 50, with higher salinities near the axis of the bay, and lower salinities on the east and west sides. Upstream of Artificial Island at RM 50, salinity tends to be more uniformly distributed across the channel. Under most conditions in the estuary, there is only a small vertical salinity gradient, due to the dominance of tidal circulation and mixing relative to the normal freshwater

i nflow. However, under prolonged high

- flow conditions, such as during the spring freshet, vertical salinity gradients of as much as 5 ppt can occur in the lower bay, with corresponding smaller vertical gradients at locations further upstream to the limit o f the salt line. At any given point in the estuary between the bay mouth and the location of the salt line, the salinity of the water column will vary directly with the phase of the tidal currents. Maximum salinity at a point occurs around the

time of sla ck water after high tide, and minimum salinity occurs at the time of slack after low. This condition reflects the significant role played by tidal currents in advecting higher salinity water in the upstream direction during flood flow, with lower salinity water being advected in the downstream direction during ebb. For periods longer than a single tidal cycle, the salinity at a given location varies in response to other important forcing functions, including the short

- term and seasonal changes in freshwat er inflow, wind forcing over the estuary and adjacent portions of the continental shelf, and salinity and water level changes at the bay mouth. Over longer periods (years158

to decades and longer), sea level changes and modifications to the geometry of the e stuary also affect the long

- term patterns of salinity distribution.

To illustrate the variability of salt distribution in the estuary over time, Figure 4 presents a plot of the “salt line” location within Delaware estuary, along with average daily inflo w at Trenton, for the period 1 January 1998 through 30 November 2008 (10.9 years). The term “salt line” refers to the 7

- day average location of the 250 mg/l (ppm) isochlor (equivalent to 0.45 ppt salinity) , and is used as an approximate indicator of the u pstream penetration of ocean

- derived salinity. In the ~11

- year period shown, the salt line has been as far north as RM 90 in late summer 2005, and at or below RM 40 during multiple high

- flow periods in 2006, a range that exceeds 50 miles along the axis of the estuary for a period just over a decade. Figure 5 is a histogram of the daily salt line location for the same January 1998 to November 2008 period, and shows that the average location over this period is about RM 71, upstream of the Delaware Memoria l Bridge and near the mouth of the Christina River in Wilmington, Delaware. Based on monthly averages, the salt line maximum penetration occurs in October (RM 81) with the minimum in April (RM 61), reflecting the typical seasonal pattern of freshwater dis charge to the estuary. A general observation is that the salt line location varies directly with the volume of freshwater inflow, and is located in the twenty

- mile long zone between RM 61 and RM 81 during an “average” year.

The four longitudinal salinit y zones within the Delaware Estuary, starting at the downstream end, are referred to as: polyhaline (18

- 30 ppt) from the mouth of the bay to the vicinity of the Leipsic River (RM 34); mesohaline (5

- 18 ppt) from the Leipsic River to the vicinity of the Smyrna River (RM 44); oligohaline (0.5

- 5 ppt) from the Smyrna River to the vicinity of Marcus Hook (RM 79), and fresh (0.0

- 0.5 ppt) from Marcus Hook to Trenton. Although these zones are useful to describe the long

- term average distribution of salinity in the estuary, the longitudinal salinity gradient is dynamic and subject to short and long

- term changes caused by variations in freshwater inflows, tides, storm surge, weather (wind) conditions, etc. These variations can cause a specific salinity
value (isohaline) to move upstream or downstream by as much as 10 miles in a day due to semi

diurnal tides, and by more than 20 miles over periods ranging from a day to weeks or months due to
storm and seasonal effects on freshwater inflows.159

Figure 4 AND 5160

7. 9

. 2 Projected Changes in Salinity The ACOE has conducted several models to estimate any modifications to the salinity regime that could result from deepening.

In order to estimate the potential for the proposed channel deepening to affect salinity d istribution, the ACOE applied the 3

- D numerical hydrodynamic model “CH3D

- WES” (Curvilinear Hydrodynamics in Three Dimensions) to develop data on the movement of the salt line and the 5, 10, and 15 ppt isohalines that cover various locations in the estuary and correspond to salinities significant to various components of the estuarine ecosystem.

CH3D

- WES includes as input data (“boundary conditions”) the most important physical factors affecting circulation and salinity within the modeled domain. As its name implies, CH3D

- WES makes computations on a curvilinear, or boundary fitted, planform grid. Physical processes affecting baywide hydrodynamics that are modeled include tides, wind, density effects (salinity and temperature), freshwater inflows, turbul ence, and the effect of the earth's rotation. The representation of vertical turbulence is crucial to a successful simulation of stratification in the bay. The boundary fitted coordinates feature of the model provides enhancement to fit the scale of the navigation channel and irregular shoreline of the bay and permits adoption of an accurate and economical grid schematization. The vertical dimension is Cartesian which allows for modeling stratification on relatively coarse horizontal grids.

The princip al goal of the modeling effort was to identify and quantify any impacts of the proposed

5

- foot channel deepening on spatial and temporal salinity distribution. A number of modeling scenarios were developed to represent a range of boundary and forcing cond itions of potential importance to both human and non

- human resources of the Delaware Estuary. Several scenarios were identified and selected for application in the 3

- D model to address the impact of channel deepening on salinity distribution and subtidal circulation in the Delaware Estuary. The selection of these sets of conditions was based on coordination accomplished through interagency workshops.

The selected scenarios include:
1. The June

- November 1965 drought of record, with Delaware River dis charges adjusted to reflect the existing reservoir regulation plan and corresponding flows ("Regulated 1965"); 2. Long

- term monthly

- averaged inflows with June

- November 1965 wind and tide forcings;

and 3. A high

- flow transition period, represented by t he April

- May 1993 prototype data set.

Each of these periods was simulated first with the existing 40 foot navigation channel, and then with the proposed 45 foot channel in place. Based on these model results, the ACOE concluded that while deepening woul d result in salinity increases in the Philadelphia area during a recurrence of the drought of record , these increases would be small. The model estimates that the 10 ppt isohaline, which can fluctuate naturally over a 30 mile zone of the estuary, moved up stream an average of from 0.0 to 1.0 miles with the deepened channel. The maximum monthly average increase in salinity within the mesohaline zone was 0.1 to 0.3 ppt.

Updated modeling was conducted in 2003 to consider effects of deepening in conjunction with other factors that were likely to increase salinity. Section 4.1.2.3 of the 2009 EA reports salinity161

modeling results from simulation of the 1965 drought of record with a channel deepened to 45 feet, DRBC projected 2040 consumptive use and a 2040 se a level rise projection based on NOS tide gauge data collected during the 20 th century along the coasts of New Jersey and Delaware. Results are reported at the Delaware Memorial Bridge (RM 69 (Rkm 111)), Chester, PA (RM 83 (rkm 134)) and the Ben Franklin Bridge (RM 100 (rkm 161)) (Table 4

- 1 of the April 2009 EA). Modeling results are provided for each scenario (deepened channel, 2040 consumptive use, 2040 sea level rise) and for the three scenarios combined. Results are the peak 7

- day

- average change in salinity resulting from each scenario compared with the background range of salinity during the 1965 simulation period.

At the Delaware Memorial Bridge, background salinity for the 1965 drought of record ranged from 0 to 6 ppt. The projected peak 7

- day average increase for the three combined scenarios is 0.9 ppt; resulting in a projected salinity level during worst case drought conditions of 0.9

- 6.9 ppt. At Chester, PA, background salinity for the 1965 drought of record ranged from 0 to 1.8 ppt. The projected peak 7

- day

- average increase for the three combined scenarios is 0.3 ppt; resulting in a projected salinity level during worst case drought conditions of 0.3

- 2.1 ppt. At the Ben Franklin Bridge, background salinity for the 1965 drought of record ranged from 0 to 0.3 ppt. The projected peak 7

- day

- average increase for the three combined scenarios is 0.036 ppt; resulting in a projected salinity level during worst case drought conditions of 0.036

– 0.336 ppt. Projected salinity increases resulting from a deepened channel, 2040 consumptive use and 2040 sea level rise would continue to decrease moving upstream.

7. 9

. 3 Effects of Salinity Changes on sturgeon

Changes in salinity could affect the distribution of shortnose and Atlantic sturgeon in the river. In the Delaware River, subadult Atlantic sturgeon are known to congregate and overwinter within brackish river waters (Brundage and Meadows, 1982). Previous studies have noted that subadult Atlantic sturgeon typically occupy both the oligohaline and moderately mesohaline (<10ppt) environments (Dovel and Berggren, 1983; Kiefer and Kynard, 1993; Moser and Ross, 1995; Simpson, 2008). For both of these species, early life stages (i.e., eggs and larvae) have little to no tolerance to salinity and ther efore, spawning occurs in fresh water. Tolerance to salinity increases with age and size (Jenkins et al. 1993, McEnroe and Cech 1985) . During at least the first year, shortnose and Atlantic sturgeon are limited in distribution to fresh water; as a result their distribution is typically upstream of the “salt wedge.” If the salt wedge moved further upstream, there could be a reduction in available spawning or rearing habitat.

Based on seasonal movements of tagged adults in conjunction with habitat data, Atlantic sturgeon spawning in the Delaware River is thought to occur between rkm 120

- 150 and 170

- 190 in areas where salinity is arou nd 0.5 ppt (Breece 2011). In April , the average salt line location (measured as 0.25 ppt) is rkm 98; in August the average salt line location is rkm 130. Near rkm 161, salinity could peak at 0.336 ppt. It is important to note that the deepening of the channel is only one factor contributing to this increase in salinity and that it causes only about 25% of this increase. The primary factor is expected sea level rise.

Salinity near rkm 161 peaks around 0.3 ppt even during drought conditions; this is within the range where spawning and rearing can occur . The expected increase in 2040, even under the worst162

conditions, is only 0.036 ppt , which would not increase salinity enough to cause it to be no longer suitable for spawning. Based on the model results, it is unlikely that the increase of salinity at rkm 161 and further upstream would affect the selection of spawning sites o r the success of development of any eggs or larvae in this area. Thus, the potential for spawning at the rkm 170

- 190 site is likely to be unaffected due to effects of the deepening project on salinity

.

Modeling discussed above indicates that in 2040, wi th deepening and predicted increases in consumptive water use and sea level rise , salinity near Chester (rkm 134) could be approximately 0.3ppt higher than it is now during worst case drought conditions and would peak at 2.1ppt rather

than the historical h igh of 1.8ppt; deepening accounts for 0.07 ppt of the 0.3 ppt increase in salinity

. In meteorologically average years, the spawning location of rkm 120

- 150 is within the 32 km

average range of the spring/summer location of the 0. 4 5 ppt salt line (rkm 98

- 1 30) and located just upstream of the longterm average salt line location (rkm 115). A predicted increase in salinity due to the deepening of 0.07 ppt in this area (i.e., near the modeled point of Chester, rkm 134) would still be within the range (approxim ately 0.5 ppt) where spawning is expected to occur. This increase in salinity is not likely to affect the selection of spawning sites or the success of development of eggs or larvae in this area.

During extremely dry years, such as the record drought ye ar of 1965, salinity in at least portions of
the rkm 120

- 150 spawning area can be too high to support the development of eggs and larvae (1.8 ppt). When sea level rise and increases in consumptive water use are considered, th e increase in salinity in this area could be as much as 0.3 ppt during worst case drought conditions. Given the small increase in salinity caused by the deepening, the deepening would not exacerbate these conditions or cause these areas to be unsuitable more often than they have histo rically been.

Shortnose sturgeon spawning occurs near Scudder Falls, well upstream of the any areas where deepening will occur and outside the area where increased salinity is expected. Therefore, selection of spawning sites or the development of eggs a nd larvae i s unlikely to be affected by the deepening. Between now and 2040, due to sea level rise and increases in consumptive water use, there may be a reduction of available habitat for juvenile shortnose sturgeon in some years. However, given the

sma ll effect of the deepening on the predicted change in the location of the salt line, effects of the deepening on the distribution of shortnose sturgeon are likely to be insignificant.

7. 9

. 4 Effects of salinity Change on Sea Turtles
Sea turtles occur in s aline sea water. Sea turtles do not occur in the reaches of the river where increases in salinity may be experienced. No impacts to sea turtles from increase in salinity will

occur.

7. 10 Effects of Deepening on Dissolved Oxygen
Shortnose and Atlantic sturgeon are known to be more sensitive to low dissolved oxygen levels than

many o ther fish species and juvenile sturgeon are particularly sensitive to low dissolved oxygen levels. In comparison to other fishes, sturgeon have a limited behavioral and phys iological capacity to respond to hypoxia (multiple references reviewed and cited in Secor and Niklitschek 2001, 2003). Sturgeon basal metabolism, growth, consumption and survival are all very sensitive to changes in oxygen levels, which may indicate their relatively poor ability to oxyregulate. Sturgeon163

may be negatively affected, primarily through changes in behavior and distribution, when dissolved oxygen levels are below 5mg/l, particularly at times when water temperatures are higher than 28oC ( see Flo urney et al. 1992; Campbell and Goodman 2004)

.

In certain areas and during certain times of year, dissolved oxygen levels in the Delaware River may be stressful to sturgeon. As sea turtles are air breathers, they are not directly affected by dissolved oxygen levels; however, if dissolved oxygen levels affect sea turtle prey, sea turtles could be
affected as well. We have considered whether the deepening project and subsequent maintenance are likely to affect dissolved oxygen levels in the action area. Dissolved oxygen levels could be affected due to increases in suspended sediment and if submerged aquatic vegetation was affected.

The ACOE has indicated that there is no SAV in the areas where dredging will occur or where dredged material will be dispo sed of (i.e., the areas at Kelly Island and Broadkill Beach). There may be SAV, particularly wild celery, near areas where pipes transporting dredged material will be placed. However, pre

- construction surveys will take place to ensure that pipe is laid o ut in a way that avoids SAV. No SAV will be destroyed or buried due to dredging or dredged material disposal. Further, because there is no SAV where dredging will occur, no SAV will be exposed to turbidity or suspended sediment.

As discussed in Sections 7.1, 7.2, 7.3 and 7.4, there will be small, short term increases in suspended sediment and turbidity near where dredging is occurring and when dredged material is disposed of at Kelly Island and Broadkill Beach. However, given the short duration and limi ted geographic extent of these increases in suspended sediment and turbidity any effects to dissolved oxygen are similarly likely to be limited to small areas and for short periods of time. As such, any effects to sea turtles, shortnose sturgeon or Atlant ic sturgeon will be insignificant and discountable.

7. 11 Effects to Atlantic sturgeon spawning Atlantic sturgeon spawning is believed to occur in flowing water between the salt front and fall line of large rivers, where optimal flows are 46

- 76 cm/s and depths of 11

- 27 meters (Borodin 1925, Leland 1968, Scott and Crossman 1973, Crance 1987, Bain et al. 2000). Sturgeon eggs are highly adhesive and are deposited on the bottom substrate, usually on hard surfaces (e.g., cobble) (Gilbert 1989, Smith and Clug ston 1997). Here, we consider effects of the deepening project on factors that are important to Atlantic sturgeon spawning habitat selection.

Spawning is thought to occur at two locations, rkm 170

- 190 and rkm 120

- 150 (Breece 2011). The upriver site is outside of the area where deepening will occur. The lower site overlaps with portions of Reach A and Reach B. The timing of dredging in those reaches has been designed to minimize the potential for disruption of spawning adults or effects to early life s tages. All work in these reaches will occur between August and February; spawning occurs in April and May. Spawning adults are not likely to be present when dredging or blasting occurs; thus, there will be no direct disruption of spawning activity. No e ggs will be present during this time of year and all larvae are likely to have developed to a mobile stage which reduces their vulnerability to the proposed action. During the spring of 2013 and 2015, dredging will be ongoing in Reach D and E, respectivel y, while adults are making upstream movements to the spawning grounds. Due to the localized effects of dredging (sediment disturbance, noise), we do not anticipate that their movements will be disrupted or delayed by the dredging activity. The documented movement of tagged sturgeon164

through areas where active dredging is occurring (see Section 7.2), supports this determination.

The deepening is expected to result in a minor increase in salinity in some areas of the river. Models indicate that the expec ted change in salinity is very small. As such, it is not expected that the deepening will affect salinity enough to change the suitability of spawning sites, the selection of spawning locations by adults, or the success of development of any eggs or larva e.

The deepening is expected to have an insignificant effect on water velocity in the river. Models indicate that the expected change in flow near the bottom of the river is less than 1 cm/sec (ACOE 1997). As such, it is not expected that the deepenin g will affect the substrate in a way that will have any effect on the suitability of spawning sites, the selection of spawning locations by adults, or the success of development of any eggs or larvae.

The deepening will increase depths in the dredged ar eas from 40 to 45 feet. However, because both of these depths are within the range of depths used for sturgeon spawning, it is not expected that the increase in depth will have any effect on the suitability of spawning sites, the selection of spawning

loc ations by adults, or the success of development of any eggs or larvae.

The deepening will remove substrate from the river bottom. However, no changes in substrate type are anticipated and there will be no reduction in hard bottom habitat in the river. Because of that, it is not expected that the deepening will affect the substrate in a way that will have any effect on the suitability of spawning sites, the selection of spawning locations by adults, or the success of development of any eggs or larvae.

Maintenance dredging activity will occur between August and December; thus, the analysis for effects of deepening also applies to maintenance activities. Based on our analysis, we have determined that any effects of the deepening on Atlantic sturgeon s pawning will be insignificant
and discountable.

7. 1 2 Increased Use of Channel by Vessels During the consultation process, we requested information from ACOE as to whether there would

be any expected port expansion result ing from the proposed deepening. The ACOE indicated that

t he 45

- foot project was formulated, evaluated, and authorized by Congress based on the parameter that no tonnage will be induced or attracted to the port's facilities as a direct result of the proposed deepening of the channel dep th for the five

- foot increment from 40 to 45 feet. Any future increase

in the amount of tonnage through the port over the project life will be an equivalent amount for either the 40 or 45 foot channel depth conditions, and would be predicated on the perfo rmance of the U.S. economy. A deeper channel will allow vessels to more efficiently apportion vessel operating costs over the same magnitude of tonnage, resulting in transportation savings. The largest vessels in the fleet, crude oil tankers, will contin ue to carry the same amount of imported crude to the Big Stone Beach anchorage (located in the naturally deeper water in the lower Delaware Bay). The Coast Guard allowance for sailing drafts of the tankers into the anchorage is 55 feet. Lightering require ments will be reduced for these tankers with the channel deepening, which will lessen the number of barge trips required to carry crude to the refineries upriver. So, overall, the

total vessel/barge traffic through the Delaware River port system will be le ss with the 45 foot deepening as compared to the traffic for the existing 40 foot channel depth. Overall, future cargo165

growth is expected to be modest (with flat tonnage factored for crude oil and petroleum products, and only small to moderate growth for dry bulk and container traffic). In summary, the 45 foot channel depth improvement would not necessitate any expansion of the port facilities utilized for tonnage with the c urrent 40 foot channel scenario; therefore, there is not expected to be any increa se in risk of vessel strike for any listed species due to the increased depth of the channel.

Two new marine terminals have been proposed since the deepening was initiated (Paulsboro and Southport); however, as explained in the 2011 EA, these terminals are not dependent on the deepening as they do not require depths of 45 feet in order to be used. Therefore, their effects are not effects of this proposed action, the deepening of the Federal Navigation Channel. To date, only the Paulsboro project has be en permitted; a separate consultation was completed between ACOE and NMFS in 2010 to consider effects of the project on shortnose and Atlantic sturgeon and sea
turtles. The wharf will accommodate four berths and is expected to handle a variety of general cargo. Berths 1, 2 and 3 are designed to accommodate Handymax class cargo vessels, which are typically 650 feet long and 95 feet wide. The fourth berth will be designated as a barge berth and is designed to accommodate a typical 400

- foot long by 100

- foot wide barge. A ship traffic modeling study dated September 2010 was provided to NMFS by the ACOE during the consultation . The results of the model show the expected increase in the daily number of vessels at seven location s within the Delaware River once the Paulsboro terminal is operational. The increase in daily counts at any location is consistently less than 1 and the 95% confidence interval is between 0.7 and 1. Using this model, the ACOE predict ed that the construction and operation of the Paulsbo ro Marine Terminal will, on average, result in an increase of one additional ship in the Delaware River per day. In our 2010 consultation we determined, g iven the large volume of traffic on the river and the wide variability in traffic in any given day, t he increase in traffic of one cargo vessel per day is negligible and that it is unlikely there would be any detectable increase in the risk of vessel strike to shortnose or Atlantic sturgeon or sea turtles

.

8.0 CUMULATIVE EFFECTS
Cumulative effects

, as defined in 50 CFR 402.02

, are those effects of future State or private activities, not involving Federal activities, which are reasonably certain to occur within the action

area

. Future Federal actions are not considered in the definition of “cumulative e ffects.”

Actions carried out or regulated by the States of New Jersey, Delaware and Pennsylvania within the

action area that may affect shortnose and Atlantic sturgeon include the authorization of state fisheries and the regulation of point and non

- poin t source pollution through the National Pollutant Discharge Elimination System. We are not aware of any local or private actions that are reasonably certain to occur in the action area that may affect listed species. It is important to note that the

defi nition of “cumulative effects” in the section 7 regulations is not the same as the NEPA

definition of cumulative effects 19 . The activities discussed in the Cumulative Effects section of the 2011 EA developed for the deepening project

– the Paulsboro Marine Terminal and the Southport

19 Cumulative effects are defined for NEPA as “the impact on the environment, which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non

- Federal) or person undertakes such other actions. Cumulative impacts can result from individually mi nor but collectively significant actions taking place over a period of time.”166

Marine Terminal require authorization by the US Army Corps of Engineers, therefore they are
considered Federal actions and do not meet the definition of “cumulative effects” under the ESA.

The ACOE has stated that b oth of thes e actions involve dredging up to 40 feet, and are not dependent on the deepening project , thus they cannot be considered interrelated or interdependent
actions either.

The Paulsboro Marine Terminal has received a Department of the Army permit for constr uction

. We completed section 7 consultation with the ACOE to consider the effects of this project on shortnose and Atlantic sturgeon. In a letter dated July 25, 2011, we determined that all effects to these species would be insignificant and discountable. The New Jersey Department of Environmental Protection issued their permit including water quality certification and coastal zone management approval on October 15, 2010. The project is to re

- develop the former 130

- acre British Petroleum (BP) Oil Termina l and the adjacent 45

- acre former Essex Industrial Chemicals, Inc. (Essex) properties located adjacent to the Delaware River and Mantua Creek in the Borough of Paulsboro, Gloucester County into a new, deep

- water marine terminal with associated processing, distribution, assembly and intermodal operations.

The Southport Marine Terminal is still in the planning stages, and is currently undergoing the Department of the Army permit process. The project location is at the eastern end of the Philadelphia Naval Business Center, formerly known as the Philadelphia Naval Shipyard, in the city and county of Philadelphia, Pennsylvania. The proposed project would construct a new marine terminal on approximately 116 acres of currently vacant land. We provided comments to the ACOE in response to an August 24, 2010, P ublic Notice . No section 7 consultation has occurred to date, but we expect that any necessary consultation will occur prior to any ACOE approval of the project.

While there may be other in

- water constru ction or coastal development within the action area, all of these activities are likely to need a permit or authorization from the US Army Corps of Engineers and would therefore, be subject to section 7 consultation.

State Water Fisheries

- Future recre ational and commercial fishing activities in state waters may

take shortnose and Atlantic sturgeon. In the past, it was estimated that over 100 shortnose sturgeon were captured annually in shad fisheries in the Delaware River, with an unknown mortality ra te (O’Herron and Able 1985) ; no recent estimates of captures or mortality are available

. Atlantic sturgeon were also likely incidentally captured in shad fisheries in the river ; however, estimates of the number of captures or the mortality rate are not av ailable

. Recreational s had fishing is currently
allowed within the Delaware River with hook and line only; commercial fishing for shad occurs with gill nets, but only in Delaware Bay. In 2012, only one commercial fishing license was granted
for shad in N ew Jersey. S hortnose and Atlantic sturgeon continue to be exposed to the risk of interactions with this fishery ; however, because increased controls have been placed on the shad fishery, impacts to shortnose and Atlantic sturgeon are likely less than they were in the past.
Information on interactions with shortnose and Atlantic sturgeon for other fisheries operating in the
action area is not available

, and it is not clear to what extent these future activities would affect listed species differently than the current state fishery activities described in the Status of the Species/Environmental Baseline section. However, this Opinion assumes effects in the future would be similar to those in the past and are

, therefore

, reflected in the anticipated trends described in the status of the species/environmental baseline section.167

State PDES Permits

– The states of New Jersey , Delaware and Pennsylvania have been delegated authority to issue NPDES permits by the EPA. These permits authorize the discharge of pol lutants
in the action area. P ermitees include municipalities for sewage treatment plants and other industrial users. The states will continue to authorize the discharge of pollutants through the SPDES permits. However, this Opinion assumes effects in th e future would be similar to those in the past and are therefore reflected in the anticipated trends described in the status of the species/environmental

baseline section

.

9.0 INTEGRATION AND SYNTHESIS OF EFFECTS In the effects analy sis outlined above, NMFS considered potential effects from the following sources: (1) deepening of the channel with cutterhead and hopper dredges; (2) blasting at Marcus Hook and associated debris removal with a mechanical dredge; (3) p hysical alteration of the action area including disruption of benthic communities, changes in substrate type and changes in salinity
in the action area. In addition to these categories of effects, NMFS considered the potential for collisions between listed species and proje ct vessels

, the potential for the deepened channel to result
in an increase in vessel traffic in the action area and the potential for effects to Atlantic sturgeon spawning

. We anticipate the mortality of a small number of loggerhead and Kemp’s ridley sea turtles, shortnose sturgeon, and Atlantic sturgeon from the five DPSs. Mortality of sea turtles will result from entrainment in hopper dredges operating in the Bay. Mortality of Atlantic and shortnose sturgeon will occur from entrainment in hopper and/o r cutterhead dredges, exposure to blasting at Marcus Hook, and capture during mechanical dredging. As explained in the “Effects of the Action” section, effects of the deepening on habitat and benthic resources will be insignificant and
discountable. We d o not anticipate any take of shortnose or Atlantic sturgeon due to any of the

other effects including vessel traffic and dredge disposal

.

In the discussion below, we consider whether the effects of the proposed action reasonably would be expected, direc tly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of the listed species in the wild by reducing the reproduction, numbers, or distribution of the listed species that will be adversely affected by the action . The purpose of this analysis is to determine whether the proposed action, in the context established by the status of the species, environmental baseline, and cumulative effects, would jeopardize the continued existence of shortnose sturgeon. In the NMFS/USFWS S ection 7 Handbook, for the purposes of determining jeopardy, survival is defined as, “the species’ persistence as listed or as a recovery unit, beyond the conditions leading to its endangerment, with sufficient resilience to allow for the potential recover y from endangerment. Said in another way, survival is the condition in which a species continues to exist into the future while retaining the potential for recovery. This condition is characterized by a species with a sufficient population, represented b y all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing viable offspring, which exists in an environment providing all requirements for completion of the species’ entire life cycle, including reproduction, su stenance, and shelter.” Recovery is defined as, “Improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in Section 4(a)(1) of the Act.” Below, for the listed species that may be affect ed by the proposed action, we summarize the sta tus of the species and consider whether the proposed action will result in reductions in reproduction, numbers or distribution of th ese species and then considers whether any reductions in reproduction, number s or distribution resulting from the proposed action would reduce168

appreciably the likelihood of both the survival and recovery of th ese species, as those terms are defined for purposes of the federal Endangered Species Act.

9.1 Shortnose sturgeon
Histor ically, shortnose sturgeon are believed to have inhabited nearly all major rivers and estuaries along nearly the entire east coast of North America. Today, only 19 populations remain. The
present range of shortnose sturgeon is disjunct, with northern pop ulations separated from southern populations by a distance of about 400 km. Population sizes range from under 100 adults in the Cape Fear and Merrimack Rivers to tens of thousands in the St. John and Hudson Rivers. As indicated in Kynard 1996, adult abun dance is less than the minimum estimated viable population abundance of 1,000 adults for 5 of 11 surveyed northern populations and all natural southern populations. The only river systems likely supporting populations close to expected abundance are
the S t John, Hudson and possibly the Delaware and the Kennebec (Kynard 1996). The species as a
whole is considered to be stable.

The Delaware River population of shortnose sturgeon is the second largest in the United States.

Historical estimates of the siz e of the population are not available as historic records of sturgeon in the river did not discriminate between Atlantic and shortnose sturgeon. The most recent population estimate for the Delaware River is 12, 047 (95% CI= 10,757

- 13,580) and is based on mark recapture data collected from January 1999 through March 2003 (ERC Inc. 2006). Comparisons between the population estimate by ERC Inc. and the earlier estimate by Hastings et al. (1987) of 12,796 (95% CI=10,228

- 16,367) suggests that the population is stable, but not increasing.

While no reliable estimate of the size of either the shortnose sturgeon population in the Northeastern US or of the species throughout its range exists, it is clearly below the size that could be supported

if the threats to shortnose sturgeon were removed. Based on the number of adults in population for which estimates are available, there are at least 104,662 adult shortnose sturgeon, including 18,000
in the Saint John River in Canada. The lack of information on the status of some populations, such as that in the Chesapeake Bay, add uncertainty to any determination on the status of this species as a whole. Based on the best available information, we consider the status of shortnose sturgeon throughout their range to be sta ble

.

As described in the Status of the Species

, Environmental Baseline, and Cumulative Effects sections above, shortnose sturgeon in the Delaware River are affected by impingement at water intakes, habitat alteration, dredging, bycatch in commercial and recreational fisheries, water quality and in

water construction activities. It is difficult to quantify the number of shortnose sturgeon that may be killed in the Delaware River each year due to anthropogenic sources. Through reporting requirements impl emented under Section 7 and Section 10 of the ESA, for specific actions we obtain some information on the number of incidental and directed takes of shortnose sturgeon each year. Typically, scientific research results in the capture and collection of less than 100 shortnose sturgeon in the Delaware River each year, with little if any mortality. With the exception of the five shortnose sturgeon observed during dredging activities in the 1990s, we have no reports of

interactions or mortalities of shortnose sturgeon in the Delaware River resulting from dredging or

other in

- water construction activities. NMFS also has no quantifiable information on the effects of habitat alteration or water quality; in general, water quality has improved in the Delaware River since the 1970s when the CWA was implemented, with significant improvements below16 9

Philadelphia which was previously considered unsuitable for shortnose sturgeon and is now well

used. Shortnose sturgeon in the Delaware River have full, unimpeded access to their historic range in the river and appear to be fully utilizing all suitable habitat; this suggests that the movement and distribution of shortnose sturgeon in the river is not limited by habitat or water quality impairments. Impingement at the Salem nuclear power plant occurs occasionally, with typically less than one mortality per year. In high water years, there is some impingement and entrainment of larvae at facilities with intakes in the upper river; however, these instances are rare and involve only small numbers of larvae. Bycatch in the shad fishery, primarily hook and line recreational fishing, historically may have impacted shortnose sturgeon, particularly because it commonly occurred on the spawning grounds. However, little to no mortalit y was thought to occur and due to decreases in shad fishing, impacts are thought to be less now than they were in the past. Despite these ongoing threats, the Delaware River population of shortnose sturgeon is stable at high numbers. Over the

life of the action, shortnose sturgeon in the Delaware River will continue to experience anthropogenic and natural sources of mortality. However, we are not aware of any future actions that are reasonably certain to occur that are likely to change this trend or redu ce the stability of the
Delaware River population. If the salt line shifts further upstream as is predicted in climate change modeling, the range of juvenile shortnose sturgeon is likely to be restricted. However, because there is no barrier to upstream movement it is not clear if this will impact the stability of the Delaware River population of shortnose sturgeon; we do not anticipate changes in distribution or abundance of shortnose sturgeon in the river due to climate change in the time period conside red in this Opinion. As such, NMFS expects that numbers of shortnose sturgeon in the action area will continue to be stable at high levels over the life of the proposed action.

We have estimated that the ongoing deepening will result in the mortality of five shortnose sturgeon during the initial construction period , inclusive of two shortnose sturgeon during blasting and subsequent debris removal with a mechanical dredge, and ten mortalities during the 10

- year maintenance phase. We expect that there wil l be no more than one mortality per year, except during the winter when blasting occurs when we expect two mortalities, one due to exposure to blasting and one due to capture in the mechanical dredge bucket. We expect that the shortnose sturgeon

killed co uld be juveniles or adults. All other effects to shortnose sturgeon, including effects to habitat and prey due to dredging and dredge disposal, will be insignificant and discountable.

T h e number of shortnose sturgeon that are likely to die as a result of the ongoing deepening project and 10 years of maintenance (1 5 ), represents a n extremely small percentage of the shortnose sturgeon population in the Delaware River, which is believed to be stable at high numbers , and an even smaller percentage of the to tal population of shortnose sturgeon rangewide , which is also

stable . The best available population estimates indicate that there are approximately 12,047 shortnose sturgeon in the Delaware River ( ERC 2006 ) . While the death of up to 1 5 shortnose
sturgeo n between now and 2027 will reduce the number of shortnose sturgeon in the population compared to the number that would have been present absent the proposed action, it is not likely

that this reduction in numbers will change the status of this population or its stable trend as this loss represents a very small percentage of the population ( approximately 0.13%). The effect of this loss is also lessened as it will be experienced slowly over time, with the death of an average of one shortnose sturgeon per ye ar.170

Reproductive potential of the Delaware population is not expected to be affected in any other way other than through a reduction in numbers of individuals. A reduction in the number of shortnose sturgeon in the Delaware River would have the effect of reducing the amount of potential reproduction in this system as the fish killed would have no potential for future reproduction. However, it is estimated that on average, approximately 1/3 of adult females spawn in a particular year and approximately 1⁄2 of males spawn in a particular year. Given that the best available

estimates indicate that there are more than 12 ,000 shortnose sturgeon in the Delaware River, it is reasonable to expect that there are at least 5 ,000 adults spawning in a particular year. It is unlikely

that the loss of 1 5 shortnose sturgeon over a 1 5

- year period at a rate of approximately one per year would affect the success of spawning in any year. Additionally, this small reduction in potential spawners is expected to result in a sma ll reduction in the number of eggs laid or larvae produced in future years and similarly, a very small effect on the strength of subsequent year classes. Even considering the potential future spawners that would be produced by the individuals that would b e killed as a result of the proposed action, any effect to future year classes is anticipated to be very small and would not change the stable trend of this population. Additionally, the proposed action will not affect spawning habitat in any way and will not create any barrier to pre

- spawning sturgeon accessing the overwintering sites or the spawning grounds.

The proposed action is not likely to reduce distribution because the action will not impede shortnose sturgeon from accessing any seasonal concen tration areas, including foraging, spawning or overwintering grounds in the Delaware River. Further, the action is not expected to reduce the river by river distribution of shortnose sturgeon. Additionally, as the number of shortnose sturgeon likely

to b e killed as a result of the proposed action is approximately 0.13 % of the Delaware River population, there is not likely to be a loss of any unique genetic haplotypes and therefore, it is unlikely to result in the loss of genetic diversity.

While genera lly speaking, the loss of a small number of individuals from a subpopulation or species can have an appreciable effect on the numbers, reproduction and distribution of the species, this is likely to occur only when there are very few individuals in a popul ation, the individuals occur in a very limited geographic range or the species has extremely low levels of genetic diversity. This situation is not likely in the case of shortnose sturgeon because: the species is widely geographically distributed, it is not known to have low levels of genetic diversity (see status of the species/environmental baseline section above), and there are thousands of shortnose sturgeon spawning each year.

Based on the information provided above, the death of up to 1 5 short nose sturgeon over a 1 5

- year period resulting from the ongoing deepening of the Delaware River and 10

- years of maintenance, will not appreciably reduce the likelihood of survival of this species ( i.e. , it will not decrease the likelihood that the species w ill continue to persist into the future with sufficient resilience to allow for the potential recovery from endangerment). The action will not affect shortnose sturgeon in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing viable offspring, and it will not result in effects to the environment which would prevent shortnose sturgeon from completing their entire life cycle, in cluding reproduction, sustenance, and shelter (i.e., it will not increase the risk of extinction faced by this species) . This is the case because: given that: (1) the population trend of shortnose sturgeon in the Delaware River is stable; (2) the death of171

up to 1 5 shortnose sturgeon represents an extremely small percentage of the number of shortnose sturgeon in the Delaware River and an even smaller percentage of the species as a whole; (3) the loss of these shortnose sturgeon is likely to have such a smal l effect on reproductive output of the
Delaware River population of shortnose sturgeon or the species as a whole that the loss of these shortnose sturgeon will not change the status or trends of the Delaware River population or the species as a whole; (4) the action will have only a minor and temporary effect on the distribution of shortnose sturgeon in the action area (related to movements around the working dredge ) and no effect on the distribution of the species throughout its range; and, (5) the action will have no effect on the ability of shortnose sturgeon to shelter and only an insignificant effect on individual foraging

shortnose sturgeon.

In certain instances, an action that does not appreciably reduce the likelihood of a species’ survival might a ffect its likelihood of recovery or the rate at which recovery is expected to occur. As explained above, NMFS has determined that the proposed action will not appreciably reduce the likelihood that shortnose sturgeon will survive in the wild. Here, NMFS considers the potential for the action to reduce the likelihood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate. Section 4(a)(1) of the ESA requires listing of a species if it is in danger of extinction throughout all or a significant portion of its range (i.e., “endangered”), or likely to become in danger of extinction throughout all or a significant portion of its range in the foreseeable future (i.e., “threatened”) because of any of the following five listing factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) th e inadequacy of existing regulatory mechanisms, (5) other natural or manmade factors affecting its continued existence.

The proposed action is not expected to modify, curtail or destroy the range of the species since it
will result in a small reduction in the number of shortnose sturgeon in the Delaware River and since it will not affect the overall distribution of shortnose sturgeon other than to cause minor temporary adjustments in movements in the action area. The proposed action will not utilize sho rtnose sturgeon for recreational, scientific or commercial purposes or affect the adequacy of existing regulatory mechanisms to protect this species. The proposed action is likely to result in the mortality of up to 1 5 shortnose sturgeon; however, over th e 1 5

- year period considered here , the loss of these individuals and what would have been their progeny is not expected to affect the persistence of the Delaware River population of shortnose sturgeon or the species as a whole. The
loss of these individual s will not change the status or trend of the Delaware River population, which is stable at high numbers. As it will not affect the status or trend of this population, it will not affect the status or trend of the species as a whole. As the reduction in n umbers and future reproduction is very small, this loss would not result in an appreciable reduction in the likelihood of improvement in the status of shortnose sturgeon throughout their range. The effects of the proposed action will

not hasten the extinc tion timeline or otherwise increase the danger of extinction since the action will cause the mortality of only a small percentage of the shortnose sturgeon in the Delaware River and an even smaller percentage of the species as a whole and these mortalities are not expected to result in the reduction of overall reproductive fitness for the species as a whole. The effects of the proposed action will also not reduce the likelihood that the status of the species can improve to the point where it is recovered a nd could be delisted. Therefore, the proposed action will not appreciably reduce the likelihood that shortnose sturgeon can be brought to the point at which they172

are no longer listed as endangered or threatened.

Despite the threats faced by individual shortnose sturgeon inside and outside of the action area, the proposed action will not increase the vulnerability of individual sturgeon to these additional threats and exposure to ongoing threats will not increase susceptibility to effects related to the proposed action. While we are not able to predict with precision how climate change will continue to impact shortnose sturgeon in the action area or how the species will adapt to climate

- change related environmental impacts, we have considered the effects of the proposed action in light of other threats, including climate change, and have concluded that even in light of the ongoing impacts of these activities and conditions, the conclusions reached above do not change.

Based on the analysis presented her ein, the proposed action, resulting in the mortality of no more

than 1 5 shortnose sturgeon over the 1 5

- year period considered here is not likely to appreciably reduce the survival and recovery of this species.

9.2 Atlantic sturgeon As explained above, the proposed action is likely to result in the mortality of a total of six Atlantic
sturgeon from the Gulf of Maine, New York Bight, Chesapeake Bay and South Atlantic DPSs during the initial construction period , inclusive of the mortality of three Atlanti c sturgeon during blasting and subsequent debris removal with a mechanical dredge, and an additional ten total during ten years of maintenance dredging. We expect that there will be no more than one mortality per year, except during the winter when blasti ng occurs when we expect three mortalities, two due to exposure to blasting and one due to capture in the mechanical dredge bucket. We expect that the Atlantic sturgeon killed will be YOY, juveniles or subadults. No mortality of any adults is anticipated . All other effects to Atlantic sturgeon, including effects to habitat and prey due to dredging and dredge disposal , will be insignificant and discountable.

9.2.1 Determination of DPS Composition
We have considered the best available information to de termine from which DPSs individuals that
will be killed a re likely to have originated. Using mixed stock analysis explained above, we have determined that Atlantic sturgeon in the action area likely originate from the five DPSs at the following frequencie s: NYB 58%; Chesapeake Bay 18%; South Atlantic 17%; Gulf of Maine 7%;
and Carolina 0.5%. Given these percentages, we expect that nine of the Atlantic sturgeon will originate from the New York Bight DPS, three from the Chesapeake Bay DPS, th ree from the S outh
Atlantic DPS and one from the Gulf of Maine DPS. Given the low numbers of Carolina DPS fish in the action area and the low number of mortalities anticipated, it is unlikely that there will be any mortality of any Carolina DPS Atlantic sturgeon.

9. 2.2 Gulf of Maine DPS Individuals originating from the GOM DPS are likely to occur in the action area. The GOM DPS has been listed as threatened. While Atlantic sturgeon occur in several rivers in the GOM DPS, recent spawning has only been documented in the Kennebec and Androscoggin rivers. No total population estimates are available. We have estimated, based on fishery

- dependent data, that there are approximately 215 mature adults in the GOM DPS, at least 645 subadults and additional numbers of juveni les (which remain in their natal river and would not be present in the action area). We expect that 7% of the Atlantic sturgeon in the action area will originate from the GOM DPS.173

Most of these fish are expected to be subadults, with few adults from the GOM DPS expected to be present in the Delaware River. GOM origin Atlantic sturgeon are affected by numerous sources of human induced mortality and habitat disturbance throughout the riverine and marine portions of their range. While there are some indica tions that the status of the GOM DPS may be improving, there is currently not enough information to establish a trend for any life stage or for the DPS as a
whole.

We anticipate the mortality of 16 Atlantic sturgeon over the 15 year period considered he re, with one likely to originate from the GOM DPS. Because we do not anticipate the mortality of any adults, we consider here the effects to the GOM DPS from the loss of one subadult (>500mm TL <1,500 mm TL) over the 15 year time period

.

The death of o ne subadult Atlantic sturgeon from the GOM DPS over a 1 5

- year period represents a very small percentage of the subadult population ( i.e.

, approximately 0. 16 % of the population , just considering the minimum estimated number of subadults ). While the death o f one subadult Atlantic sturgeon will reduce the number of GOM DPS Atlantic sturgeon compared to the number that would have been present absent the proposed action, it is not likely that this reduction in numbers will change the status of this species as t his loss represents a very small percentage of the subadult population and an even smaller percentage of the overall population of the DPS (juveniles, subadults and adults combined). Even when converting this fish to an adult equivalent 20 (using a
conversi on rate of 0.48), and assuming no growth in the adult population, this mortality represent a very small percentage of the adult population ( approximately 0

. 2 3%).

The reproductive potential of the GOM DPS will not be affected in any way other than throug h a
reduction in numbers of individuals. The loss of one subadult would have the effect of reducing the amount of potential reproduction as any dead GOM DPS Atlantic sturgeon would have no potential for future reproduction. This small reduction in potenti al future spawners is expected to result in an extremely small reduction in the number of eggs laid or larvae produced in future years and similarly, an extremely small effect on the strength of subsequent year classes. Even considering the potential futu re spawners that would be produced by the individual that would be killed as a result of the proposed action, any effect to future year classes is anticipated to be extremely small and would not change the status of this species. Reproductive potential of other captured or injured individuals is not expected to be affected in any way. A dditionally, we have determined that any impacts to behavior will be minor and temporary and that there will not be any delay or disruption of any normal behavior including spawning; there will also be no reduction in individual fitness or any future reduction in numbers of individuals.

The proposed action will also not affect the spawning grounds within the rivers where GOM DPS fish spawn. The action will also not creat e any barrier to pre

- spawning sturgeon accessing the overwintering sites or the spawning grounds used by GOM DPS fish.

20 The “adult equivalent” rate convert s a number of subadults to adult equivalent s (the number of subadults that would, through natural mortality, live to be adults ; for Atlantic sturgeon, this is calculated as 0.48 ).174

The proposed action is not likely to reduce distribution because the action will not impede Atlantic sturgeon from accessing any seaso nal concentration areas, including foraging areas within the
Delaware River that may be used by GOM DPS subadults or adults. Further, the action is not expected to reduce the river by river distribution of Atlantic sturgeon. Any effects to distribution will be minor and temporary and limited to the temporary avoidance of the ensonified area.

Based on the information provided above, the death of no more than one GOM DPS Atlantic
sturgeon over the 15 year period when deepening and maintenance will occ ur, will not appreciably reduce the likelihood of survival of the GOM DPS ( i.e. , it will not decrease the likelihood that the species will continue to persist into the future with sufficient resilience to allow for the potential recovery from endangerment )

. The action will not affect GOM DPS Atlantic sturgeon in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing viable offs pring, and it will not result in effects to the environment which would prevent Atlantic sturgeon from completing their entire life cycle, including reproduction, sustenance, and shelter. This is the case because: (1)

the death of one subadult GOM DPS Atl antic sturgeon over a 5

- year period represents an extremely small percentage of the species as a whole; (2) the death of one subadult GOM DPS Atlantic sturgeon will not change the status or trends of the species as a whole; (3) the loss of th is subadult

GO M DPS Atlantic sturgeon is not likely to have an effect on the levels of genetic heterogeneity in the population; (4) the loss of this subadult GOM DPS Atlantic sturgeon is likely to have such a small effect on reproductive output that the loss of th is ind ividual will not change the status or trends of the species; (5) the action will have only a minor and temporary effect on the distribution

of GOM DPS Atlantic sturgeon in the action area and no effect on the distribution of the species throughout its rang e; and, (6) the action will have no effect on the ability of GOM DPS Atlantic sturgeon to shelter and only an insignificant effect on individual foraging GOM DPS Atlantic
sturgeon.

In certain instances an action that does not appreciably reduce the likeli hood of a species survival (persistence) may affect its likelihood of recovery or the rate at which recovery is expected to occur. As explained above, we have determined that the proposed action will not appreciably reduce the

likelihood that GOM DPS Atlan tic sturgeon will survive in the wild. Here, we consider the potential for the action to reduce the likelihood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate. Section 4(a)(1) of th e ESA requires listing of a species if it is in danger of extinction throughout all or a significant portion of its range ( i.e. , “endangered”), or likely to become in danger of extinction throughout all or a significant portion of its range in the foreseea ble future ( i.e. , “threatened”) because of any of the following five listing factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educatio nal purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, (5) other natural or manmade factors affecting its continued existence.

The proposed action is not expected to modify, curtail or destroy the range of the specie s since it will result in an extremely small reduction in the number of GOM DPS Atlantic sturgeon in any geographic area and thus, it will not affect the overall distribution of GOM DPS Atlantic sturgeon. The proposed action will not utilize GOM DPS Atlant ic sturgeon for recreational, scientific or commercial purposes, affect the adequacy of existing regulatory mechanisms to protect this species175

or affect its continued existence. The proposed action is likely to result in the capture and injury of

Atlantic sturgeon and the mortality of no more than one subadult GOM DPS Atlantic sturgeon; however, as explained above, the loss of th is individual and what would have been their progeny is not expected to affect the persistence of the GOM DPS. As the reduction i n numbers and future reproduction is very small, the loss of these individuals will not change the status of GOM DPS Atlantic sturgeon. The effects of the proposed action will not delay the recovery timeline or otherwise decrease the likelihood of recovery since the action will cause the mortality of only a very small percentage of the species as a whole and th is mortality is not expected to result in the reduction of overall reproductive fitness for the species as a whole. The effects of the proposed

actio n will also not reduce the likelihood that the status of the species can improve to the point where it is recovered and could be delisted. Therefore, the proposed action will not appreciably

reduce the likelihood that the GOM DPS can be brought to the poin t at which they are no longer
listed as threatened.

Despite the threats faced by individual GOM DPS Atlantic sturgeon inside and outside of the action area, the proposed action will not increase the vulnerability of individual sturgeon to these

addition al threats and exposure to ongoing threats will not increase susceptibility to effects related to the proposed action. While we are not able to predict with precision how climate change will continue to impact Atlantic sturgeon in the action area or how t he species will adapt to climate

change related environmental impacts, we have considered the effects of the proposed action in light of other threats , including climate change, and h ave concluded that even in light of the ongoing impacts of these activiti es and conditions, the conclusions reached above do not change.

Based on the analysis presented herein, the proposed action, resulting in the mortality of one

subadult GOM DPS Atlantic sturgeon, is not likely to appreciably reduce the survival and recove ry of this species.

9 .2.3 New York Bight DPS Individuals originating from the NYB DPS are likely to occur in the action area. The NYB DPS has been listed as endangered. While Atlantic sturgeon occur in several rivers in the NYB DPS, recent spawning has only been documented in the Delaware and Hudson rivers. Kahnle et al. (2007) estimated that there is a mean annual total mature adult population of 863 Hudson River Atlantic sturgeon. Using fishery

- dependent data we have estimated that there are 8 8 Dela ware River origin adults; combined, we estimate a total adult population of 95 1 in the New York Bight DPS. We
have also estimated that there are at least a mean annual of 2,85 3 subadults and additional numbers of juveniles resulting from continuing annual spawning in the Delaware and Hudson rivers . We expect that 58 % of the Atlantic sturgeon in the action area will originate from the NYB DPS. NYB DPS origin Atlantic sturgeon are affected by numerous sources of human induced mortality and

habitat disturba nce throughout the riverine and marine portions of their range. There is currently not enough information to establish a trend for any life stage, for the Hudson or Delaware River spawning populations or for the DPS as a whole.

We have estimated that t he proposed deepening and 10 years of maintenance will result in the mortality of 16 Atlantic sturgeon, with nine originating from the NYB DPS. No mortality of adults is anticipated; thus, there will be no loss of Delaware or Hudson River origin adults. We do not anticipate the mortality of any eggs or larvae. Here, we consider the effects of the mortality of nine176

YOY, juvenile

, or subadult NYB DPS Atlantic sturgeon over the 15 year time period. Because YOY and juveniles remain in their natal river, any YOY or juveniles killed would be Delaware River origin. Any New York Bight DPS subadults could originate from the Delaware or Hudson
river. We have limited information from which to determine the percentage of NYB DPS fish in
the Delaware River that are likely to originate from the Delaware vs. the Hudson river. Given the sizes of the two populations, the worst case scenario is that all nine NYB fish that are killed are
Delaware River fish ; however, that appears to be unlikely. Of the 11 fish captured in the Delaware for which genetic assignments are available, six were from the New York Bight DPS, with four originating from the Delaware River and two from the Hudson River. This suggest that within the Delaware River, the compostion of New York Bight f ish is approximately 2/3 Delaware and 1/3 Hudson. Thus, of the nine NYB Atlantic sturgeon likely to be killed, six are likely to originate from
the Delaware River and three from the Hudson River.

There are an estimated 8 8 adult Atlantic sturgeon in the Delaware River population and at least 2 64 subadults and an unknown additional number of juveniles. Some Delaware River fish have a unique genetic haplotype (the A5 haplotype); however, whether there is any evolutionary significance or fitness benefit pr ovided by this genetic makeup is unknown. Genetic evidence indicates that while spawning continued to occur in the Delaware River and in some cases Delaware River origin fish can be distinguished genetically from Hudson River origin fish, there is free

in terchange between the two rivers. This relationship is recognized by the listing of the New York Bight DPS as a whole and not separate listings of a theoretical Hudson River DPS and Delaware River DPS. Thus, while we can consider the loss of Delaware Riv er fish on the Delaware River population and the loss of Hudson River fish on the Hudson River population, it is more appropriate, because of the interchange of individuals between these two populations, to consider

the effects of these mortalities on the New York Bight DPS as a whole.

The mortality of nine juvenile or subadult Atlantic sturgeon from the NYB DPS over a 1 5

- year period represents a very small percentage of the YOY, juvenile and subadult population ( i.e.

, approximately 0. 3 % of the populatio n , just considering the minimum estimated number of

subadults ; the percentage would be much less if the number of YOY and juveniles was considered ).
While the death of nine juvenile or subadult Atlantic sturgeon will reduce the number of NYB DPS

Atlantic sturgeon compared to the number that would have been present absent the proposed action, it is not likely that this reduction in numbers will change the status of this species as this loss represents a very small percentage of the juvenile and subadult pop ulation and an even smaller percentage of the overall population of the DPS (juveniles, subadults and adults combined). Even when converting these nine fish to adult equivalents 21 (assuming th e worst case that th ey were all subadults; using a conversion ra te of 0.48 considering the adult equivalent), and assuming no growth in the adult population, these nine mortalities represent an extremely small percentage of the adult population (approximately 0. 4 5 %). The effect of this loss is even smaller when consid ering that these mortalities will occur over a 15 year period, with no more than three occurring in any one

year . When considered on an annual basis this loss of 1

- 3 Atlantic sturgeon per year , even assuming the worst case that all mortalities are subadul ts, the annual loss is equivalent to 0.04

- 0.1%

21 The “adult equivalent” rate convert s a number of subadults to adult equivalent s (the number of subadults that would, through natural mortality, live to be adults ; for Atlantic sturgeon, this is calculated as 0.48 ).177

of the annual subadult population and, using the adult equivalent conversion, 0.05

- 0.15% of the mean annual adult population.

Because there will be no loss of adults, t he reproductive potential of the NYB D PS will not be affected in any way other than through a reduction in numbers of individual future spawner s. The

loss of nine YOY, juveniles or subadult s would have the effect of reducing the amount of potential reproduction as any dead NYB DPS Atlantic st urgeon would have no potential for future reproduction. This small reduction in potential future spawners is expected to result in an extremely small reduction in the number of eggs laid or larvae produced in future years and similarly, an extremely small effect on the strength of subsequent year classes. Even considering the potential future spawners that would be produced by the individual that would be killed as a result of the proposed action, any effect to future year classes is anticipated to be extr emely small and would not change the status of this species. The proposed action will also not affect the spawning grounds
within the Hudson R iver where most NYB DPS fish spawn. A dditionally, we have considered effects of the proposed action on habitat u sed for spawning in the Delaware River and have determined that all effects will be insignificant and discountable. We have also determined that dredging will not result in any delay or disruption in any normal behavior including movements of

adults from the ocean to the in

- river spawning grounds. There will be no effects to spawning adults

and therefore no reduction in individual fitness or any future reduction in spawning by these
individuals.

The proposed action is not likely to reduce distributio n because the action will not impede Atlantic sturgeon from accessing any seasonal concentration areas, including foraging, spawning or overwintering grounds in the Delaware River. Further, the action is not expected to reduce the river by river distribut ion of Atlantic sturgeon.

The proposed action is not likely to reduce distribution because the action will not impede NYB DPS Atlantic sturgeon from accessing any seasonal concentration areas, including foraging, spawning or overwintering grounds in the Delaware or Hudson River or elsewhere. Any effects to distribution will be minor and temporary and limited to the temporary avoidance of the area immediately surrounding an active dredge.

Based on the information provided above, the death of up to nine NYB DPS Atlantic sturgeon over the 15 year period considered here

, will not appreciably reduce the likelihood of survival of the New York Bight DPS ( i.e. , it will not decrease the likelihood that the species will continue to persist

into the future with sufficient resilience to allow for the potential recovery from endangerment ). The action will not affect NYB DPS Atlantic sturgeon in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genet ic heterogeneity, and number of sexually mature individuals producing viable offspring, and it will not result in effects to the environment which would prevent Atlantic sturgeon from completing their entire life cycle, including reproduction, sustenance, and shelter. This is the case because: (1) the death of nine YOY, juvenile or subadult NYB DPS Atlantic sturgeon over a 1 5

- year period represents an extremely small percentage of the species as a whole; (2) the death of two juvenile or subadult

NYB DPS A tlantic sturgeon will not change the status or trends of the species as a whole; (3) the

loss of th ese juvenile or subadult NYB DPS Atlantic sturgeon is not likely to have an effect on the levels of genetic heterogeneity in the population; (4) the loss of th ese juvenile or subadult NYB178

DPS Atlantic sturgeon is likely to have such a small effect on reproductive output that the loss of these individuals will not change the status or trends of the species; (5) the action will have only a minor and temporary ef

fect on the distribution of NYB DPS Atlantic sturgeon in the action area and no effect on the distribution of the species throughout its range; and, (6) the action will have no effect on the ability of NYB DPS Atlantic sturgeon to shelter and only an insig nificant effect on individual foraging NYB DPS Atlantic sturgeon.

In certain instances an action that does not appreciably reduce the likelihood of a species survival (persistence) may affect its likelihood of recovery or the rate at which recovery is exp ected to occur. As explained above, NMFS has determined that the proposed action will not appreciably reduce the likelihood that NYB DPS Atlantic sturgeon will survive in the wild. Here, we consider the potential

for the action to reduce the likelihood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate. Section 4(a)(1) of the ESA requires listing of a species if it is in danger of extinction throughout all or a significant portion of its range ( i.e. , “endangered”), or likely to become in danger of extinction throughout all or a significant portion of its range in the foreseeable future ( i.e. , “threatened”) because of any of the following five listing factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, (5) other natural or

m anmade factors affecting its continued existence.

The proposed action is not expected to modify, curtail or destroy the range of the species since it will result in an extremely small reduction in the number of NYB DPS Atlantic sturgeon in any geographic area and thus, it will not affect the overall distribution of NYB DPS Atlantic sturgeon. The proposed action will not utilize NYB DPS Atlantic sturgeon for recreational, scientific or commercial purposes, affect the adequacy of existing regulatory mechanis ms to protect this species or affect its continued existence. The proposed action is likely to result in the mortality of nine YOY, juvenile or subadult NYB DPS Atlantic sturgeon; however, as explained above, the loss of

th ese individual s and what would ha ve been their progeny is not expected to affect the persistence of the NYB DPS. As the reduction in numbers and future reproduction is very small, the loss of these individuals will not change the status of NYB DPS Atlantic sturgeon. The effects of the

pr oposed action will not delay the recovery timeline or otherwise decrease the likelihood of recovery since the action will cause the mortality of only a very small percentage of the species as a whole and these mortalities are not expected to result in the reduction of overall reproductive fitness for the species as a whole. The effects of the proposed action will also not reduce the likelihood that the status of the species can improve to the point where it is recovered and could be delisted. Therefore, th e proposed action will not appreciably reduce the likelihood that NYB DPS can be brought to the point at which they are no longer listed as endangered or threatened.

Despite the threats faced by individual NYB DPS Atlantic sturgeon inside and outside of the action area, the proposed action will not increase the vulnerability of individual sturgeon to these additional threats and exposure to ongoing threats will not increase susceptibility to effects related to the proposed action. While we are not able t o predict with precision how climate change will continue to impact Atlantic sturgeon in the action area or how the species will adapt to climate

change related environmental impacts, we have considered the effects of the proposed action in179

light of other threats , including climate change, and h ave concluded that even in light of the ongoing impacts of these activities and conditions, the conclusions reached above do not change.

Based on the analysis presented herein, the proposed action, resulting in the mortality of up to nine YOY, juvenile or subadult NYB DPS Atlantic sturgeon over a 15 year period , is not likely to appreciably reduce the survival and recovery of this species.

9 .2.4 Chesapeake Bay DPS Individuals originating from the CB DPS are likely to occur in the action area. The CB DPS has been listed as endangered. While Atlantic sturgeon occur in several rivers in the CB DPS, recent spawning has only been documented in the James River. Using fishery

- dependent data, we have

estimated that ther e are 273 adults in the James River population, 819 subadults and additional juveniles (which remain in the James River). Because the James River is the only river in this DPS known to support spawning, this is also an estimate of the total number of adul ts and subadults in the Chesapeake Bay DPS. We expect that 17 % of the Atlantic sturgeon in the action area will originate from the CB DPS. Most of these fish are expected to be subadults, with few adults from

the CB DPS expected to be present in the Dela ware River. Chesapeake Bay DPS origin Atlantic sturgeon are affected by numerous sources of human induced mortality and habitat disturbance throughout the riverine and marine portions of their range. There is currently not enough

information to establish a trend for any life stage, for the James River spawning population or for
the DPS as a whole.

We anticipate the mortality of 16 Atlantic sturgeon over the 15 year period considered here, with three likely to originate from the CB DPS. Because we do not anticipate the mortality of any adults, we consider here the effects to the CB DPS from the loss of three subadults (>500mm TL <1,500 mm TL) over the 15 year time period

.

The death of three subadult Atlantic sturgeon from the CB DPS over a 1 5

- year period represents a very small percentage of the subadult population ( i.e.

, approximately 0. 4 % of the population , just considering the minimum estimated number of subadults ). While the death of three subadult Atlantic sturgeon will reduce the number of CB DPS Atlantic sturgeon compared to the number that would have been present absent the proposed action, it is not likely that this reduction in numbers will change the status of this species as this loss represents a very small percentage of the subadult

po pulation and an even smaller percentage of the overall population of the DPS (juveniles, subadults and adults combined). Even when converting this fish to an adult equivalent 22 (using a conversion rate of 0.48), and assuming no growth in the adult populati on, this mortality represent a very small percentage of the adult population ( approximately 0. 5 %). On an annual basis, there will be one mortality of a Chesapeake Bay DPS fish in each of three years. When this loss is considered this way, the annual loss is equivalent to 0.1% of the annual subadult population and, using the adult equivalent conversion, 0.1 8 % of the mean annual adult population.

The reproductive potential of the CB DPS will not be affected in any way other than through a

22 The “adult equivalent” rate convert s a number of subadults to adult equivalent s (the number of subadults that would, through natural mortality, live to be adults ; for Atlantic sturgeon, this is calculated as 0.48 ).180

reduction in nu mbers of individuals. The loss of three subadult s would have the effect of reducing the amount of potential reproduction as any dead CB DPS Atlantic sturgeon would have no potential for future reproduction. This small reduction in potential future spawner s is expected to result in an extremely small reduction in the number of eggs laid or larvae produced in future years and similarly, an extremely small effect on the strength of subsequent year classes. Even considering the potential future spawners that would be produced by the individual that would be killed as a result of the proposed action, any effect to future year classes is anticipated to be extremely small and would not change the status of this species. Reproductive potential of other captured o r injured individuals is not expected to be affected in any way. A dditionally, we have determined that any impacts to behavior will be minor and temporary and that there will not be any delay or disruption of any normal behavior including spawning; there will also be no reduction in individual fitness or any future reduction in numbers of individuals.

The proposed action will also not affect the spawning grounds within the rivers where CB DPS fish spawn. The action will also not create any barrier to p re

- spawning sturgeon accessing the overwintering sites or the spawning grounds used by CB DPS fish.

The proposed action is not likely to reduce distribution because the action will not impede Atlantic sturgeon from accessing any seasonal concentration a reas, including foraging areas within the
Delaware River that may be used by CB DPS subadults or adults. Further, the action is not expected to reduce the river by river distribution of Atlantic sturgeon. Any effects to distribution
will be minor and te mporary and limited to the temporary avoidance of the immediate area where dredging is occuring

.

Based on the information provided above, the death of no more than three CB DPS Atlantic
sturgeon over a 1 5

- year period resulting from the proposed deepen ing and ten years maintenance will not appreciably reduce the likelihood of survival of the CB DPS ( i.e. , it will not decrease the likelihood that the species will continue to persist into the future with sufficient resilience to allow

for the potential re covery from endangerment ). The action will not affect CB DPS Atlantic sturgeon in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individua ls producing viable offspring, and it will not result in effects to the environment which would prevent Atlantic sturgeon from completing their entire life cycle, including reproduction, sustenance, and shelter. This is the case because: (1) the death of three subadult CB DPS Atlantic sturgeon over a 1 5

- year period represents an extremely small percentage of the species as a whole; (2) the death of three

subadult CB DPS Atlantic sturgeon will not change the status or trends of the species as a whole; (3) t he loss of th ese subadult CB DPS Atlantic sturgeon is not likely to have an effect on the levels of genetic heterogeneity in the population; (4) the loss of th ese subadult CB DPS Atlantic sturgeon is likely to have such a small effect on reproductive outpu t that the loss of th is individual will not change the status or trends of the species; (5) the action will have only a minor and temporary effect

on the distribution of CB DPS Atlantic sturgeon in the action area and no effect on the distribution

of the s pecies throughout its range; and, (6) the action will have no effect on the ability of CB DPS Atlantic sturgeon to shelter and only an insignificant effect on individual foraging CB DPS Atlantic
sturgeon.

In certain instances an action that does not appre ciably reduce the likelihood of a species survival181

(persistence) may affect its likelihood of recovery or the rate at which recovery is expected to occur. As explained above, we have determined that the proposed action will not appreciably reduce the

likel ihood that CB DPS Atlantic sturgeon will survive in the wild. Here, we consider the potential for the action to reduce the likelihood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate . Section 4(a)(1) of the ESA requires listing of a species if it is in danger of extinction throughout all or a significant portion of its range ( i.e. , “endangered”), or likely to become in danger of extinction throughout all or a significant portion of it s range in the foreseeable future ( i.e. , “threatened”) because of any of the following five listing factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, (5) other natural or manmade factors affecting its continued existence.

The proposed action is not expected to modify, curtail or destroy the range of the species since it will result in an extremely small reduction in the number of CB DPS Atlantic sturgeon in any geographic area and thus, it will not affect the overall distribution of CB DPS Atlantic sturgeon. The proposed action will not u tilize CB DPS Atlantic sturgeon for recreational, scientific or commercial purposes, affect the adequacy of existing regulatory mechanisms to protect this species or affect its continued existence. The proposed action is likely to result in the capture and injury of Atlantic sturgeon and the mortality of no more than three subadult CB DPS Atlantic sturgeon; however, as explained above, the loss of th ese individual s and what would have been their progeny is not expected to affect the persistence of the CB DP S. As the reduction in numbers and future reproduction is very small, the loss of these individuals will not change the status of CB DPS Atlantic sturgeon. The effects of the proposed action will not delay the recovery timeline or
otherwise decrease the l ikelihood of recovery since the action will cause the mortality of only a very small percentage of the species as a whole and th is mortality is not expected to result in the reduction of overall reproductive fitness for the species as a whole. The effects of the proposed action will also not reduce the likelihood that the status of the species can improve to the point where it is recovered and could be delisted. Therefore, the proposed action will not appreciably

reduce the likelihood that the CB DPS can be brought to the point at which they are no longer listed
as threatened.

Despite the threats faced by individual CB DPS Atlantic sturgeon inside and outside of the action area, the proposed action will not increase the vulnerability of individual sturgeo n to these additional threats and exposure to ongoing threats will not increase susceptibility to effects related to the proposed action. While we are not able to predict with precision how climate change will continue to impact Atlantic sturgeon in the a ction area or how the species will adapt to climate

change related environmental impacts, we have considered the effects of the proposed action in light of other threats , including climate change, and h ave concluded that even in light of the ongoing impact s of these activities and conditions, the conclusions reached above do not change.

Based on the analysis presented herein, the proposed action, resulting in the mortality of three

subadult CB DPS Atlantic sturgeon, is not likely to appreciably reduce the survival and recovery of this species.182

9 .2. 5 South Atlantic DPS

Individuals originating from the SA DPS are likely to occur in the action area. The SA DPS has been listed as endangered. The SA DPS consists of Atlantic sturgeon origingating from at lea st six rivers where spawning is still thought to occur. Currently, there are an estimated 343 spawning adults in the Altamaha and there are estimated to be less than 300 spawning adults (total of both sexes) in each of the other five river systems where s pawning occurs. Adding these estimates together results in a total mean annual adult population estimated of less than 1,843 mature adults. Our fishery dependent estimate is 324 . This is likely an underestimate of the total number of adults
in the SA DP S because genetic analysis of individuals observed through the NEFOP program indicate that only individuals from the Savannah and Ogeechee are being captured in Northeast fisheries considered in the NEFSC bycatch report from which these estimates were deri ved

. Because of this, it is difficult to compare these two estimates. It may be reasonable to consider the

estimate of 324 adults to be an estimate of the number of adults in the Savannah and Ogeechee rivers only ; this results in a population estimate fo r adults in the three major rivers of 667

. Using these estimates of adults, there are an estimated 2,001

- 5,529 subadults.

We expect that 17% of the Atlantic sturgeon in the action area will originate from the SA DPS. Most of these fish are expected to be subadults, with few adults from the SA DPS expected to be present in the Delaware River. South Atlantic DPS origin Atlantic sturgeon are affected by numerous sources of human induced mortality and habitat disturbance throughout the riverine and

marine portions of their range. There is currently not enough information to establish a trend for any life stage, for any of the spawning population s or for the DPS as a whole.

We anticipate the mortality of 16 Atlantic sturgeon over the 15 year period co nsidered here, with three likely to originate from the SA DPS. Because we do not anticipate the mortality of any adults,
we consider here the effects to the SA DPS from the loss of three subadults (>500mm TL <1,500 mm TL) over the 15 year time period

.

The death of three subadult Atlantic sturgeon from the SA DPS over a 15

- year period represents a very small percentage of the subadult population ( i.e.

, approximately 0. 26 % of the population , just considering the minimum estimated number of subadults ). Wh ile the death of three subadult Atlantic sturgeon will reduce the number of SA DPS Atlantic sturgeon compared to the number that would have been present absent the proposed action, it is not likely that this reduction in numbers will change the status of t his species as this loss represents a very small percentage of the subadult population (0.05

- 0. 26 %) and an even smaller percentage of the overall population of the DPS (juveniles, subadults and adults combined). Even when converting this fish to an adult equivalent 23 (using a conversion rate of 0.48), and assuming no growth in the adult population, this mortality represent a very small percentage of the adult population (approximately 0. 08

- 0. 2 %). On an annual basis, there will be one mortality of a South A tlantic DPS fish in each of three years. When this loss is considered this way, the annual loss is equivalent to 0. 02

- 0.0 5 % of the annual subadult population and, using the adult equivalent conversion, 0. 03

- 0.0 8 % of the mean annual adult

23 The “adult equivalent” rate convert s a number of subadults to adult equivalent s (the number of subadults that would, through natural mortality, live to be adults ; for Atlantic sturgeon, this is calculated as 0.48 ).183

population.

Th e reproductive potential of the SA DPS will not be affected in any way other than through a
reduction in numbers of individuals. The loss of three subadult s would have the effect of reducing the amount of potential reproduction as any dead SA DPS Atlantic sturgeon would have no potential for future reproduction. This small reduction in potential future spawners is expected to result in an extremely small reduction in the number of eggs laid or larvae produced in future years and similarly, an extremely sma ll effect on the strength of subsequent year classes. Even considering the potential future spawners that would be produced by the individual that would be killed as a result of the proposed action, any effect to future year classes is anticipated to be

e xtremely small and would not change the status of this species. A dditionally, we have determined that any impacts to behavior will be minor and temporary and that there will not be any delay or disruption of any normal behavior; there will also be no redu ction in individual fitness or any future
reduction in numbers of individuals.

The proposed action will also not affect the spawning grounds within the rivers where SA DPS fish spawn. The action will also not create any barrier to pre

- spawning sturgeon accessing the overwintering sites or the spawning grounds used by SA DPS fish.

The proposed action is not likely to reduce distribution because the action will not impede Atlantic sturgeon from accessing any seasonal concentration areas, including fora ging areas within the
Delaware River that may be used by SA DPS subadults or adults. Further, the action is not expected to reduce the river by river distribution of Atlantic sturgeon. Any effects to distribution will be minor and temporary and limited to the temporary avoidance of the immediate area where dredging is occuring

.

Based on the information provided above, the death of no more than three SA DPS Atlantic
sturgeon over a 1 5

- year period resulting from the proposed deepening and ten years ma intenance will not appreciably reduce the likelihood of survival of the SA DPS ( i.e. , it will not decrease the likelihood that the species will continue to persist into the future with sufficient resilience to allow

for the potential recovery from endanger ment ). The action will not affect SA DPS Atlantic sturgeon in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing
viable offspring, and it will not result in effects to the environment which would prevent Atlantic sturgeon from completing their entire life cycle, including reproduction, sustenance, and shelter. This is the case because: (1) the death of three subadult SA DP S Atlantic sturgeon over a 15

- year period represents an extremely small percentage of the species as a whole; (2) the death of three

subadult SA DPS Atlantic sturgeon will not change the status or trends of the species as a whole; (3) the loss of th ese sub adult SA DPS Atlantic sturgeon is not likely to have an effect on the levels of genetic heterogeneity in the population; (4) the loss of these subadult SA DPS Atlantic sturgeon is likely to have such a small effect on reproductive output that the loss of t h is individual will not change the status or trends of the species; (5) the action will have only a minor and temporary effect

on the distribution of SA DPS Atlantic sturgeon in the action area and no effect on the distribution of the species throughout it s range; and, (6) the action will have no effect on the ability of SA DPS Atlantic sturgeon to shelter and only an insignificant effect on individual foraging SA DPS Atlantic
sturgeon.184

In certain instances an action that does not appreciably reduce the li kelihood of a species survival (persistence) may affect its likelihood of recovery or the rate at which recovery is expected to occur. As explained above, we have determined that the proposed action will not appreciably reduce the

likelihood that SA DPS At lantic sturgeon will survive in the wild. Here, we consider the potential for the action to reduce the likelihood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate. Section 4(a)(1) of the ESA requires listing of a species if it is in danger of extinction throughout all or a significant portion of its range ( i.e. , “endangered”), or likely to become in danger of extinction throughout all or a significant portion of its range in the fores eeable future ( i.e. , “threatened”) because of any of the following five listing factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educa tional purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, (5) other natural or manmade factors affecting its continued existence.

The proposed action is not expected to modify, curtail or destroy the range of the spe cies since it will result in an extremely small reduction in the number of SA DPS Atlantic sturgeon in any geographic area and thus, it will not affect the overall distribution of SA DPS Atlantic sturgeon. The proposed action will not utilize SA DPS Atlant ic sturgeon for recreational, scientific or commercial purposes, affect the adequacy of existing regulatory mechanisms to protect this species or affect its continued existence. The proposed action is likely to result in the mortality of no more than three

subadult SA DPS Atlantic sturgeon; however, as explained above, the loss of th ese individual s and what would have been their progeny is not expected to affect the persistence of the SA DPS. As the reduction in numbers and future reproduction is very smal l, the loss of these individuals will not change the status of SA DPS Atlantic sturgeon. The effects of the proposed action will not delay the recovery timeline or otherwise decrease the likelihood of recovery since the action will cause the mortality of o nly a very small percentage of the species as a whole and th is mortality is not expected to result in the reduction of overall reproductive fitness for the species as a whole. The effects of the proposed action will also not reduce the likelihood that the status of the species can improve to the point where it is recovered and could be delisted. Therefore, the proposed action will not appreciably reduce the likelihood that the SA DPS can be brought to the point at which they are no longer listed as threaten ed.

Despite the threats faced by individual SA DPS Atlantic sturgeon inside and outside of the action area, the proposed action will not increase the vulnerability of individual sturgeon to these additional threats and exposure to ongoing threats will n ot increase susceptibility to effects related to the proposed action. While we are not able to predict with precision how climate change will continue to impact Atlantic sturgeon in the action area or how the species will adapt to climate

change related e nvironmental impacts, we have considered the effects of the proposed action in light of other threats , including climate change, and h ave concluded that even in light of the ongoing impacts of these activities and conditions, the conclusions reached above do not change.

Based on the analysis presented herein, the proposed action, resulting in the mortality of three

subadult SA DPS Atlantic sturgeon over a 15 year period , is not likely to appreciably reduce the survival and recovery of this species.185

9.2.6 Carolina DPS As explained in section 4.7, no Carolina DPS fish have been documented in the action area. This is based on genetic sampling of fish in the Delaware River (n= 11 individuals ) and sampling in Delaware coastal waters (n=105). However, Carolin a DPS fish have been documented in Long Island Sound (0.5% of samples). Because Carolina fish would swim past Delaware Bay on their way to Long Island Sound, we considered the possibility that up to 0.5% of the Atlantic sturgeon in
the action area would o riginate from the Carolina DPS. However, given the low level of take anticipated (16 over a 15 year period) and the expected rarity of Carolina fish in the action area, it is extremely unlikely that any of the 16 fish that will be killed during the deepen ing of 10 years of subsequent maintenance will originate from the Carolina DPS. All other effects to Atlantic sturgeon, including habitat and prey, will be insignificant and discountable. Therefore, the action considered in this Opinion is not likely to adversely affect the Carolina DPS of Atlantic sturgeon.

9.3 G reen sea turtles As noted in sections above, the physical disturbance of sediments and entrainment of associated benthic resources could reduce the availability of sea turtle prey in the affe cted areas, but these reductions will be localized and temporary, and foraging turtles are not likely to be limited by the

reductions and any effects will be insignificant

. Also, as explained above, no green sea turtles are likely to be entrained in any d redge operating to deepen or maintain the channel and this species is

not likely to be involved in any collision with a project vessel. As all effects to green sea turtles from the proposed project are likely to be insignificant or discountable, this acti on is not likely to adversely affect th is species.

9.4 Leatherback sea turtles As noted in sections above, the physical disturbance of sediments and entrainment of associated benthic resources could reduce the availability of sea turtle prey in the affe cted areas, but these reductions will be localized and temporary, and foraging turtles are not likely to be limited by the reductions and any effects will be insignificant. Also, as explained above, no leatherback sea turtles are likely to be entrained in any dredge operating to deepen or maintain the channel and this species

is not likely to be involved in any collision with a project vessel. As all effects to leatherback sea turtles from the proposed project are likely to be insignificant or discountabl e, this action is not likely to adversely affect this species.

9.5 Kemp’s ridley sea turtles In the “Effects of the Action” section above, we determined that Kemp’s ridleys could be entrained in a hopper dredge working to deepen Reach D or E or by a ho pper dredge conducting maintenance dredging activities in either of these reaches. Based on a calculated entrainment rate of sea turtles for projects using hopper dredges in the action area, we estimate that 1 sea turtle is likely to be
entrained for ever y 45 0 ,000 cy of material removed with a hopper dredge. Also, based on the ratio

of loggerhead and Kemp’s ridleys entrained in other hopper dredge operations in the ACOE North

Atlantic Di vision

, we estimate that no more than 10% of the sea turtles entraine d during project operations were likely to be Kemp’s ridleys with the remainder loggerheads . Based on this, we determined that of the 11 sea turtles likel y to be entrained during the initial deepening, no more than 1 is likely to be a Kemp’s ridley , with the remainder loggerheads . Similarly, of the 11 sea turtles likely to be entrained during 10 years of maintenance dredging in the Bay, no more than 1 is likely to be a Kemp’s ridley, with the remainder loggerheads. As such, the proposed action is likely to186

result in the entrainment and mortality of no more than 2 Kemp’s ridleys and the remainder loggerheads. No entrainment of Kemp’s ridley sea turtles is anticipated if a cutterhead dredge is used for deepening in Reach D.

Kemp’s Ridley sea turtles are listed as a single species classified as “endangered” under the ESA. Kemp’s ridleys occur in the Atlantic Ocean and Gulf of Mexico. The only major nesting site for Kemp’s ridleys is a single stretch of beach near Rancho Nuevo, Tamaulipas, Mexico (Carr 1 963; USFWS and NMFS 1992; NMFS and USFWS 2007c).

Nest count data provides the best available information on the number of adult females nesting each year. As is the case with the other sea turtle species discussed above, nest count data must be interpr eted with caution given that these estimates provide a minimum count of the number of nesting Kemp’s ridley sea turtles. In addition, the estimates do not account for adult males or juveniles of either sex. Without information on the proportion of adult males to females, and the age structure of the Kemp’s ridley population, nest counts cannot be used to estimate the total population size (Meylan 1982; Ross 1996; Zurita et al. 2003; Hawkes et al. 2005; letter to J. Lecky,
NMFS Office of Protected Resource s, from N. Thompson, NMFS Northeast Fisheries Science Center, December 4, 2007 ). Nevertheless, the nesting data does provide valuable information on the extent of Kemp’s ridley nesting and the trend in the number of nests laid. Estimates of the adult

fem ale nesting population reached a low of approximately 250

- 300 in 1985 (USFWS and NMFS 1992; TEWG 2000). From 1985 to 1999, the number of nests observed at Rancho Nuevo and nearby beaches increased at a mean rate of 11.3% per year (TEWG 2000). Current est imates suggest an adult female population of 7,000

- 8,000 Kemp’s ridleys (NMFS and USFWS 2007c).

The most recent review of the Kemp’s ridleys suggests that this species is in the early stages of recovery (NMFS and USFWS 2007b). Nest count data indicate increased nesting and increased numbers of nesting females in the population. NMFS also takes into account a number of recent conservation actions including the protection of females, nests, and hatchlings on nesting beaches
since the 1960s and the enhanc ement of survival in marine habitats through the implementation of TEDs in the early 1990s and a decrease in the amount of shrimping off the coast of Tamaulipas and in the Gulf of Mexico in general (NMFS and USFWS 2007b). We expect this increasing trend t o continue over the time period considered in this Opinion.

The mortality of 2 Kemp’s ridleys over a 15 year time period represents a very small percentage of the Kemp’s ridleys worldwide. Even taking into account just nesting females, the death of 2

K emp’s ridley represents less than 0.0 3 % of the population. While the death of 2 Kemp’s ridley will reduce the number of Kemp’s ridleys compared to the number that would have been present absent the proposed action, it is not likely that this reduction in numbers will change the status of this species or its stable to increasing trend as this loss represents a very small percentage of the population (less than 0.0 3 %). Reproductive potential of Kemp’s ridleys is not expected to be affected in any other wa y other than through a reduction in numbers of individuals. A reduction in the number of Kemp’s ridleys would have the effect of reducing the amount of potential reproduction as any dead Kemp’s ridleys would have no potential for future reproduction. In 2006, the most recent year for which data is available, there were an estimated 7

- 8,000 nesting females. While the species is though t to be female biased, there are likely to be several thousand adult males187

as well. Given the number of nesting adults, it is unlikely that the loss of 2 Kemp’s ridley s would affect the success of nesting in any year. Additionally, this small reduction in potential nesters is expected to result in a small reduction in the number of eggs laid or hatchlings produced in future years and similarly, a very small effect on the strength of subsequent year classes. Even considering the potential future nesters that would be produced by the individuals that would be killed as a result of the proposed action, any effect to future year classes is anticipated to be very small and would not change the stable to increasing trend of this species. Additionally, the proposed action will not affect nesting beaches in any way or disrupt migratory movements in a way that hinders access to nesti ng beaches or otherwise delays nesting.

The proposed action is not likely to reduce distribution because the action will not impede Kemp’s ridleys from accessing foraging grounds or cause more than a temporary disruption to other migratory behaviors. A dditionally, given the small percentage of the species that will be killed as a

result of the deepening and maintenance , there is not likely to be any loss of unique genetic haplotypes and no loss of genetic diversity.

While generally speaking, the loss of a small number of individuals from a subpopulation or species may have an appreciable reduction on the numbers, reproduction and distribution of the species this is likely to occur only when there are very few individuals in a population, the individua ls occur in a very limited geographic range or the species has extremely low levels of genetic diversity. This situation is not likely in the case of Kemp’s ridleys because: the species is widely geographically distributed, it is not known to have low le vels of genetic diversity, there are several thousand individuals in the population and the number of Kemp’s ridleys is likely to be increasing and at

worst is stable.

Based on the information provided above, the death of two Kemp’s ridley sea turtle s b etween now
and 2027 will not appreciably reduce the likelihood of survival (i.e., it will not decrease the likelihood that the species will continue to persist into the future with sufficient resilience to allow for the potential recovery from endangerment ). The action will not affect Kemp’s ridleys in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing viable offspring and it will not result in effects to the environment which would prevent Kemp’s ridleys from completing their entire life cycle, including reproduction, sustenance, and shelter. This is the case because: (1) the species’ nesting trend is increasing; (2) the death of 2 Kemp’s ridley s represents an extremely small percentage of the species as a whole; (3) the death of 2 Kemp’s ridley s will not change the status or trends of the species as a whole; (4) the loss of th ese Kemp’s ridley s is not likely to have an ef fect on the levels of genetic heterogeneity in the population; (5) the

loss of th ese Kemp’s ridley s is likely to have such a small effect on reproductive output that the loss of these individuals will not change the status or trends of the species; (5) the action will have only a minor and temporary effect on the distribution of Kemp’s ridleys in the action area and no effect on the distribution of the species throughout its range; and, (6) the action will have no effect on the ability of Kemp’s ridleys to shelter and only an insignificant effect on individual foraging Kemp’s ridleys.

In certain instances an action that does not appreciably reduce the likelihood of a species survival (persistence) may affect its likelihood of recovery or the rate at which recovery is expected to occur.188

As explained above, NMFS has determined that the proposed action will not appreciably reduce the likelihood that Kemp’s ridleys will survive in the wild. Here, we consider the potential for the

action to reduce the likelih ood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate. Section 4(a)(1) of the ESA requires listing of a species if it is in danger of extinction throughout all or a significant portio n of its range (i.e., “endangered”), or likely to become in danger of extinction throughout all or a significant portion of its range in the foreseeable future (i.e., “threatened”) because of any of the following five listing factors: (1) The present or t hreatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, (5) other na tural or manmade factors affecting its continued existence.

The proposed action is not expected to modify, curtail or destroy the range of the species since it will result in an extremely small reduction in the number of Kemp’s ridley sea turtles in any geographic area and since it will not affect the overall distribution of Kemp’s ridley sea turtles other than to cause temporary delays in migratory movements. The proposed action will not utilize Kemp’s ridley sea turtles for recreational, scientific or commercial purposes, affect the adequacy of existing regulatory mechanisms to protect this species or affect its continued existence. The proposed action is likely to result in the mortality of up to two Kemp’s ridley s ; however, as explained above, the lo ss of these individuals and what would have been their progeny is not expected to affect the persistence of Kemp’s ridleys. As the reduction in numbers and future reproduction is very small, the loss of these individuals will not change the status or tren d of Kemp’s ridleys, which is stable to increasing. The effects of the proposed action will not hasten the extinction timeline or otherwise increase the danger of extinction since the action will cause the mortality of only a very small percentage of the s pecies as a whole and these mortalities are not expected to result in the reduction of overall reproductive fitness for the species as a whole. The effects of the proposed action will also not reduce the likelihood that the status of the species can impro ve to the point where it is recovered and could be delisted. Therefore, the proposed action will not appreciably reduce the likelihood that Kemp’s ridleys can be brought to the point at which they are no longer listed as endangered or threatened.

Despi te the threats faced by individual Kemp’s ridley sea turtles inside and outside of the action area, the proposed action will not increase the vulnerability of individual sea turtles to these additional threats and exposure to ongoing threats will not incre ase susceptibility to effects related to the proposed action. While NMFS is not able to predict with precision how climate change will continue to impact Kemp’s ridley sea turtles in the action area or how the species will adapt to

climate

- change related environmental impacts, we have considered the effects of the proposed action in light of other threats , including climate change, and h ave concluded that even in light of the ongoing impacts of these activities and conditions, the conclusions reached above do not change.

Based on the analysis presented herein, the proposed action, resulting in the mortality of no more

than 2 Kemp’s ridleys is not likely to appreciably reduce the survival and recovery of this species.

9.6 Northwest Atlantic DPS of Logge rhead sea turtles In the “Effects of the Action” section above, we determined that loggerheads could be entrained in a189

hopper dredge working to deepen Reach D or E or in a hopper dredge conducting maintenance dredging activities in either of these reache s. Based on a calculated entrainment rate of sea turtles for projects using hopper dredges in the action area, we estimate that 1 sea turtle is likely to be entrained for every 45 0,000 cy of material removed with a hopper dredge. Also, based on the ratio

of loggerhead and Kemp’s ridleys entrained in other hopper dredge operations in the ACOE North

Atlantic Di vision

, we estimate that 9 0% of the sea turtles entrained during project operations were likely to be loggerheads . Based on this, we determined that of the 11 sea turtles likely to be entrained during the initial deepening, 10 are likely to be loggerheads. Similarly, of the 11 sea turtles likely to be entrained during 10 years of maintenance dredging in the Bay, 10 are likely to be loggerheads. All entrained loggerheads are expected to be juveniles. We determined that all other effects of the action on this species will be insignificant and discountable.

The Northwest Atlantic DPS of loggerhead sea turtles is listed as “threatened” under the ESA. It takes decades for loggerhead sea turtles to reach maturity. Once they have reached maturity, females typically lay multiple clutches of eggs within a season, but do not typically lay eggs every season (NMFS and USFWS 2008). There are many natural a nd anthropogenic factors affecting the survival of loggerheads prior to their reaching maturity as well as for those adults who have reached maturity. As described in the Status of the Species , E nvironmental Baseline and Cumulative Effects sections above, loggerhead sea turtles in the action area continue to be affected by multiple anthropogenic impacts including bycatch in commercial and recreational fisheries, habitat alteration, dredging, power plant intakes and other factors that result in mortality of individuals at all life stages. Negative impacts causing death of various age classes occur both on land and in the water. Many actions have been taken to address known negative impacts to loggerhead sea turtles. However, many remain unaddressed, have not been sufficiently addressed, or have been addressed in some manner but whose success cannot be quantified.

The SEFSC (2009) estimated the number of adult females in the NWA DPS at 30,000, and if a 1:1 adult sex ratio is assumed, the result is 60,000 adults in this DPS. Based on the reviews of nesting data, as well as information on population abundance and trends, NMFS and USFWS determined in the September 2011 listing rule that the NWA DPS should be listed as threatened. They found that an endange red status for the NWA DPS was not warranted given the large size of the nesting population, the overall nesting population remains widespread, the trend for the nesting population appears to be stabilizing, and substantial conservation efforts are underwa y to address threats. This stable trend is expected to continue over the time period considered in this Opinion.

As stated above, we expect the lethal entrainment of 20 loggerheads over the 15 year time period considered here; with an average mortality rate of 1

- 2 loggerheads per year. The lethal removal of
up to 20 loggerhead sea turtle s from the action area over this time period would be expected to reduce the number of loggerhead sea turtles from the recovery unit of which they originated as

compare d to the number of loggerheads that would have been present in the absence of the proposed actions (assuming all other variables remained the same). However, this does not necessarily mean that these recovery units will experience reductions in reproducti on, numbers or distribution in response to these effects to the extent that survival and recovery would be appreciably reduced. The final revised recovery plan for loggerheads compiled the most recent information on mean number of loggerhead nests and th e approximated counts of nesting females per year for four of the five identified recovery units (i.e., nesting groups). They are: (1) for the190

NRU, a mean of 5,215 loggerhead nests per year with approximately 1,272 females nesting per year; (2) for the PF RU, a mean of 64,513 nests per year with approximately 15,735 females nesting per year; (3) for the DTRU, a mean of 246 nests per year with approximately 60 females nesting per year; and (4) for the NGMRU, a mean of 906 nests per year with approximately 22 1 females nesting per year. For the GCRU, the only estimate available for the number of loggerhead nests per year is from Quintana Roo, Yucatán, Mexico, where a range of 903

- 2,331 nests per year was
estimated from 1987

- 2001 (NMFS and USFWS 2007a). There are no annual nest estimates available for the Yucatán since 2001 or for any other regions in the GCRU, nor are there any estimates of the number of nesting females per year for any nesting assemblage in this recovery
unit.

It is likely that the loggerh ead sea turtles in Delaware Bay originate from several of the recovery units. Limited information is available on the genetic makeup of sea turtles in the mid

- Atlantic, where the majority of sea turtle interactions are expected to occur. Cohorts from eac h of the five western Atlantic subpopulations are expected to occur in the action area. Genetic analysis of samples collected from immature loggerhead sea turtles captured in pound nets in the Pamlico

Albemarle Estuarine Complex in North Carolina from Sep tember

- December of 1995

- 1997 indicated that cohorts from all five western Atlantic subpopulations were present (Bass et al. 2004). In a separate study, genetic analysis of samples collected from loggerhead sea turtles from

Massachusetts to Florida found t hat all five western Atlantic loggerhead subpopulations were represented (Bowen et al. 2004). Bass et al. (2004) found that 80 percent of the juveniles and sub

adults utilizing the foraging habitat originated from the south Florida nesting population, 12 percent from the northern subpopulation, 6 percent from the Yucatan subpopulation, and 2 percent from other rookeries. The previously defined loggerhead subpopulations do not share the exact delineations of the recovery units identified in the 2008 recove ry plan. However, the PFRU encompasses both the south Florida and Florida panhandle subpopulations, the NRU is roughly equivalent to the northern nesting group, the Dry Tortugas subpopulation is equivalent to the DTRU, and the Yucatan subpopulation is inc luded in the GCRU.

Based on the genetic analysis presented in Bass et al. (2004) and the small number of loggerheads from the DTRU or the NGMRU likely to occur in the action area it is extremely unlikely that the loggerhead s likely to be killed during t he deepening project will originate from either of these recovery units. The majority, at least 80% of the loggerheads killed , are likely to have originated from the PFRU, with the remainder from the NRU and GCRU. As such, of the 20 loggerheads likely t o be killed

, 1 6 are expected to be from the PFRU, with 3 from the NRU and 1 from the

GCRU. Below, we consider the effects of these mortalities on these three recovery units and the species as a whole

.
As noted above, the most recent population estimate s indicate that there are approximately 15,735 females nesting annually in the PFRU and approximately 1,272 females nesting per year in the NRU. For the GCRU, the only estimate available for the number of loggerhead nests per year is from Quintana Roo, Yu catán, Mexico, where a range of 903

- 2,331 nests per year was estimated
from 1987

- 2001 (NMFS and USFWS 2007a). There are no annual nest estimates available for the Yucatán since 2001 or for any other regions in the GCRU, nor are there any estimates of the number of nesting females per year for any nesting assemblage in this recovery unit; however, the 2008 recovery plan indicates that the Yucatan nesting aggregation has at least 1,000 nesting females191

annually. As the numbers outlined here are only for nest ing females, the total number of loggerhead sea turtles in each recovery unit is likely significantly higher.

The loss of 1 6 loggerhead s over a 15

- year period represents an extremely small percentage of the
number of sea turtles in the PFRU. Even if th e total population was limited to 15,735 loggerheads, the loss of 1 individual would represent approximately 0. 1 % of the population. Similarly, the loss

of 3 loggerhead s from the NRU represents an extremely small percentage of the recovery unit.
Even if the total population was limited to 1,272 sea turtles, the loss of 1 individual would represent approximately 0. 3 % of the population. The loss of 1 loggerhead from the GCRU, which is expected to support at least 1,000 nesting females, represents less than 0.1% of the population. The loss of such a small percentage of the individuals from any of these recovery units represents an even smaller percentage of the species as a whole. The impact of these losses is even less when considering that these losses w ill occur over a span of 15 years. Considering the extremely small percentage of the populations that will be killed , it is unlikely that the se deaths will have a detectable effect on the numbers and population trends of loggerheads in these recovery unit s or the number of loggerheads in the population as a whole.

All of the loggerheads that are expected to be killed will be juveniles. Thus, any effects on reproduction are limited to the loss of these individuals on their year class and the loss of fut ure reproductive potential. Given the number of nesting adults in each of these populations , it is unlikely that the expected loss of loggerheads would affect the success of nesting in any year. Additionally, this small reduction in potential nesters is expected to result in a small reduction in the number of eggs laid or hatchlings produced in future years and similarly, a very small effect on the strength of subsequent year classes. Even considering the potential future nesters that would be produced b y the individuals that would be killed as a result of the proposed action, any effect to future year classes is anticipated to be very small and would not change the stable trend of this species. Additionally, the proposed action will not affect nesting b eaches in any way or disrupt migratory movements in a way that hinders access to nesting beaches or otherwise delays nesting.

The proposed action is not likely to reduce distribution because the action will not impede loggerheads from accessing foraging grounds or cause more than a temporary disruption to other migratory behaviors. Additionally, given the small percentage of the species that will be killed as a

result of the deepening and maintenance , there is not likely to be any loss of unique genetic haplotypes and no loss of genetic diversity.

While generally speaking, the loss of a small number of individuals from a subpopulation or species may have an appreciable reduction on the numbers, reproduction and distribution of the species this

is like ly to occur only when there are very few individuals in a population, the individuals occur in a very limited geographic range or the species has extremely low levels of genetic diversity. This situation is not likely in the case of loggerheads because: the species is widely geographically distributed, it is not known to have low levels of genetic diversity, there are several thousand individuals in the population and the number of loggerheads is likely to be stable or increasing over the time period cons idered here.

Based on the information provided above, the death of up to 20 loggerheads between now and 2027
will not appreciably reduce the likelihood of survival (i.e., it will not decrease the likelihood that the192

species will continue to persist into the future with sufficient resilience to allow for the potential recovery from endangerment). The action will not affect loggerheads in a way that prevents the species from having a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing viable offspring and it will not result in effects to the environment which would prevent loggerheads from completing their entire life cycle, including reproduction, sustenance, and shelt er. This is the case because: (1) the species’ nesting trend is stabilizing ; (2) the death of 2 0 loggerheads represents an extremely small percentage of the species as a whole; (3) the death of 2 0 loggerheads will not change the status or

trends of the s pecies as a whole; (4) the loss of th ese loggerheads is not likely to have an effect on the levels of genetic heterogeneity in the population; (5) the loss of th ese loggerheads is likely to have such a small effect on reproductive output that the loss of t hese individuals will not change the status or trends of the species; (5) the action will have only a minor and temporary effect on the

distribution of loggerheads in the action area and no effect on the distribution of the species throughout its range; an d, (6) the action will have no effect on the ability of loggerheads to shelter and only an insignificant effect on individual foraging loggerheads

.

In certain instances an action may not appreciably reduce the likelihood of a species survival (persisten ce) but may affect its likelihood of recovery or the rate at which recovery is expected to occur. As explained above, NMFS has determined that the proposed action will not appreciably reduce the likelihood that loggerheads will survive in the wild. Here, we consider the potential for the action to reduce the likelihood of recovery. As noted above, recovery is defined as the improvement in status such that listing is no longer appropriate.

Section 4(a)(1) of the ESA requires listing of a species if it is in danger of extinction throughout all or a significant portion of its range (i.e., “endangered”), or likely to become in danger of extinction throughout all or a significant portion of its range in the foreseeable future (i.e., “threatened”)

because of any of the following five listing factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, ( 4) the inadequacy of existing regulatory mechanisms, (5) other natural or manmade factors affecting its continued existence.

The proposed action will not appreciably reduce the likelihood of survival of the loggerhead sea turtle species. Also, it is no t expected to modify, curtail or destroy the range of the species since it will result in an extremely small reduction in the number of loggerheads in any geographic area and since it will not affect the overall distribution of loggerheads other than to ca use minor temporary adjustments in movements in the action area. The proposed action will not utilize loggerheads for recreational, scientific or commercial purposes, affect the adequacy of existing regulatory mechanisms to protect loggerhead sea turtles, or affect their continued existence. As explained above, the proposed action is likely to result in the mortality of up to 20 loggerheads between now
and 2027 ; however, as explained above, the loss of th ese individual s over this time period is not
expect ed to affect the persistence of loggerhead sea turtles. In summary, the effects of the proposed action will not hasten the extinction timeline or otherwise increase the danger of extinction; further, the action will not prevent the species from growing in a way that leads to recovery and the action will not change the rate at which recovery can occur. This is the case because while the action may result in a small reduction in the number of loggerheads and a small reduction in the amount of potential repr oduction due to the loss of these individual s , these effects will be undetectable over193

the long

- term and the action is not expected to have long term impacts on the future growth of the population or its potential for recovery. Therefore, based on the ana lysis presented above, the proposed action will not appreciably reduce the likelihood that loggerhead sea turtles can be brought to the point at which they are no longer listed as endangered or threatened.

Despite the threats faced by individual loggerh ead sea turtles inside and outside of the action area, the proposed action will not increase the vulnerability of individual sea turtles to these additional threats and exposure to ongoing threats will not increase susceptibility to effects related to the proposed action. While NMFS is not able to predict with precision how climate change will continue to impact loggerhead sea turtles in the action area or how the species will adapt to climate

change related environmental impacts, we have considered the ef fects of the proposed action in light of other threats , including climate change, and h ave concluded that even in light of the ongoing impacts of these activities and conditions, the conclusions reached above do not change.

Based on the analysis present e d herein, the proposed action is not likely to appreciably reduce the survival and recovery of the NWA DPS of loggerhead sea turtles.

10.0 CONCLUSION After reviewing the best available information on the status of endangered and thr eatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects, it is NMFS’ biological opinion that the proposed action may adversely affect but is not likely to jeopardize the continued existence of the shortnose sturgeon

, any DPS of Atlantic sturgeon, Kemp’s ridley and loggerhead sea turtles and is not likely to adversely affect green or leatherback sea turtles. Because no critical habitat is designated in the action area, no ne will be affected by the proposed action.

11.0 INCIDENTAL TAKE STATEMENT Section 9 of the ESA prohibits the take of endangered species of fish and wildlife. “Fish and wildlife” is defined in the ESA “as any member of the animal kingdom, including witho ut limitation any mammal, fish, bird (including any migratory, non

- migratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, an d includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.” 16 U.S.C. 1532(8). “Take” is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm
is further defined by NMFS to include any act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation that actually kills or injures fish or wildlife by significantly impairing essent ial behavioral patterns including breeding, spawning, rearing, migrating, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. “Otherwise lawful activi ties” are those actions that meet all State and Federal legal requirements except for the prohibition against taking in ESA Section 9 (51 FR 19936, June 3, 1986), which would include any state endangered species laws or regulations. Section 9(g) makes it unlawful for any person “to attempt to commit, solicit another to commit, or cause to be committed, any offense defined [in the ESA.]” 16 U.S.C. 1538(g). See also 16 U.S.C. 1532(13)(definition of “person”). Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency194

action is not considered to be prohibited under the ESA provided that such taking is in compliance
with the terms and conditions of this Incidental Take Statement.

The measures described below are non

- discretionary, and must be undertaken by ACOE so that they become binding conditions for the exemption in section 7(o)(2) to apply. ACOE has a continuing duty to regulate the activity covered by this Incidental Take Statement. If ACOE (1) fails to assume and implement the terms and conditions or (2) fails to require any contractors to adhere to the terms and conditions of the Incidental Take Statement through enforceable terms that are added contracts or other documents as appropr iate, the protective coverage of section 7(o)(2) may lapse. In order to monitor the impact of incidental take, ACOE must report the progress of the action and its impact on the species to us as specified in the Incidental Take Statement [50 CFR §402.14(i) (3)] (See U.S. Fish and Wildlife Service and National Marine Fisheries Service’s Joint Endangered Species Act Section 7 Consultation Handbook (1998) at 4

- 49).

11.1 Amount or Extent of Incidental Take The proposed dredging project has the potentia l to directly affect loggerhead and Kemp’s ridlely sea turtles, shortnose sturgeon, and individuals from the New York Bight, Gulf of Maine, Chesapeake Bay and South Atlantic DPSs of Atlantic sturgeon to become entrained in the dredge. These

interactions a re likely to cause mortality. Shortnose sturgeon and individuals from the New York Bight, Gulf of Maine, Chesapeake Bay and South Atlantic DPSs of Atlantic sturgeon may be exposed to noise and pressure during blasting and may be captured in the dredge buc ket during debris removal after blasting. Entrainment of sea turtles is only likely to occur in hopper dredges working in Reach D and Reach E. Entrainment of shortnose and Atlantic sturgeon is likely to occur in hopper and cutterhead dredges operating in Reaches AA, A, B and C. Take may occur during the initial construction period as well as during the 10 years of planned maintenance dredging. This level of take is expected to occur over the entire 15 year period and is not likely to jeopardize the

cont inued existence of listed species.

This ITS exempts the following lethal take:

 20 Northwest Atlantic DPS loggerhead sea turtles;

 2 Kemp’s ridley sea turtles;

 1 5 shortnose sturgeon;

 9 New York Bight DPS Atlantic sturgeon;

 3 Chesapeake Bay DPS Atlanti c sturgeon;

 3 South Atlantic DPS Atlantic sturgeon; and,

 1 Gulf of Maine DPS Atlantic sturgeon.

The level of take of loggerhead sea turtles would be less if a cutterhead dredge was used to deepen Reach D. In that case, the total level of lethal take would be 18 instead of 20. During the maintenance dredging period, we anticipate a total entrainment level of 1 1 loggerheads and one Kemp’s ridley; the other turtles are expected to be entrained during the initial construction period. We expect that five of the shortnose sturgeon will be killed during the initial construction period,
inclusive of two killed during blasting and associated mechanical dredging, and that the remaining ten shortnose sturgeon will be killed during the 10

- year maintenance period at a n average rate of one shortnose sturgeon per year. Shortnose sturgeon that will be killed will be subadults or adults. We expect that six of the Atlantic sturgeon will be killed during the initial construction period,195

inclusive of three killed durin g blasting and associated mechanical dredging, and that the remaining

ten Atlantic sturgeon will be killed during the 10

- year maintenance period at a n average rate of one

Atlantic sturgeon per year. The nine New York Bight DPS Atlantic sturgeon killed wil l consist of YOY, juveniles and subadults. The three Chesapeake Bay, three South Atlantic, and one Gulf of Maine DPS Atlantic sturgeon will be subadults. No take of any adult Atlantic sturgeon is anticipated.

11.2 Reasonable and prudent measures
NMFS believes the following reasonable and prudent measures are necessary and appropriate to minimize and monitor impacts of incidental take resulting from the proposed action:

RPMs related to Cutterhead and Hopper Dredging Activities

1. NMFS must be contacted prior to the commencement of dredging and again upon completion of the dredging activity. This applies to all contracts executed in the initial
construction of the 45

- foot channel and all subsequent maintenance dredging activities.

2. For cutterhead dredg ing, an inspector, with sufficient training to identify sturgeon, must be present at the disposal site to conduct daily inspections for biological materials, including shortnose sturgeon or sturgeon parts. The inspection schedule and procedures must be

su fficient to ensure a high likelihood of documenting entrained sturgeon and must involve inspections of ponded areas and inspections at the area where water is discharged from the disposal site. This requirement applies to the initial construction of the 4 5

- foot channel and all subsequent maintenance dredging activities using a cutterhead dredge, regardless of time of year or reach being dredged

.

3. The ACOE shall ensure that for dredging occurring in R eaches D and E) from May 1

– November 15, hopper dredges are outfitted with state

- of

- the

- art sea turtle deflectors on the draghead and operated in a manner that will reduce the risk of interactions with sea turtles.

4. For hopper dredge operations in the reaches AA, A, B , or C, a NMFS

- approved observer must be pre sent on board the hopper dredge any time it is operating.

5. For hopper dredge operations in R eaches D and E, a NMFS

- approved observer must be present on board the hopper dredge from May 1

– November 15.

6. The ACOE shall ensure that dredges are equipped and ope rated in a manner that provides endangered/threatened species observers with a reasonable opportunity for detecting interactions with listed species and that provides for handling, collection, and resuscitation of turtles injured during project activity. Full cooperation with the endangered/threatened species observer program is essential for compliance with the ITS.

7. The ACOE shall ensure that all measures are taken to protect any turtles or sturgeon that survive entrainment in a hopper dredge.

RPMs relate d to Blasting and Associated Mechanical Dredging

8. NMFS must be contacted prior to the commencement of blasting and again upon completion196

of the blasting and subsequent mechanical dredging activity.

9. The ACOE must utilize a procedure designed in associatio n with NMFS to minimize the potential for detonations to occur when shortnose or Atlantic sturgeon are within 500 feet of
the blast location.

10. The ACOE must monitor the blasting site for the presence of acoustically tagged sturgeon
and monitor their movem ents during the blasting period.

11. Blasting must be conducted in a manner designed to minimize the potential for fish kills.

12. Acoustic measurement of the first three detonations must be conducted to confirm the underwater pressure levels estimated by ACOE

.

13. The ACOE must design and implement a monitoring plan to ensure that any sturgeon killed during blasting are recorded.

14. An endangered species observer must be present to observe all mechanical dredging activities where debris will be deposited to monit or for any capture of sturgeon.

15. The ACOE must ensure that all measures are taken to protect any sturgeon that survive capture in the mechanical dredge.

RPMs for all aspects of the project:

16. The ACOE must conduct sediment sampling following the completio n of dredging to confirm that substrate type is unchanged following the deepening in Reach AA, A, B, D and E. In the unlikely event that it is found that substrate type has changed as a result of the deepening, ACOE must work with us to develop an appropr iate restoration method to restore substrate types in these reaches.

17. The ACOE must develop a program to monitor the movement of acoustically tagged

Atlantic and shortnose sturgeon during the dredging operations.

18. All Atlantic sturgeon captured must have a fin clip taken for genetic analysis. This sample
must be transferred to NMFS.

19. All shortnose and Atlantic sturgeon that are captured during the project must be scanned for the presence of Passive Integrated Transponder (PIT) tags. Tag numbers must be recorded and reported to NMFS.

20. Any dead sturgeon must be transferred to NMFS or an appropriately permitted research facility NMFS will identify so that a necropsy can be undertaken to attempt to determine the
cause of death. Sturgeon must be held in c old storage.

21. Any dead sea turtles must be held until proper disposal procedures can be discussed with
NMFS. Turtles must be held in cold storage.197

22. All sturgeon and turtle captures, injuries or mortalities associated with the deepening and

maintenance activities and any sturgeon and sea turtle sightings in the action area must be reported to NMFS within 24 hours

.

11.3 Terms and conditions In order to be exempt from prohibitions of section 9 of the ESA, the ACOE must comply with the following terms and conditions, which implement the reasonable and prudent measures described above and outline required reporting/monitoring requirements. These terms and

conditions are non

- discretionary.

1. To implement RPM #1, the ACOE must contact NMFS (Julie Crocker: by email ( julie.crocker@noaa.gov) or phone (978) 282

- 8480 or (978)

- 281

- 9328)) within 3 days of the commencement of each dredging cycle (initial construction and maintenance) and again within 3 days of the completion of dredging activity. This correspondence will serve both to alert NMFS of the commencement and cessation of dredging activities and to give NMFS an opportunity to provide ACOE with any updated contact information or reporting forms.

2. To implement RPM #2, for cutterhead dredging, the ACOE must re quire inspections at the disposal area at least four times a day in order to document any sturgeon entrained in the dredge, including shortnose and Atlantic sturgeon or their parts. The ACOE must provide training in sturgeon identification to inspectors w orking at the dredge disposal site. Species identification must be verified by an expert.

3. To implement RPM #2, the ACOE shall ensure that the disposal site is equipped and operated in a manner that provides the inspector with a reasonable opportunity for detecting interactions with listed species and that provides for handling and collection of listed species during project activity.

4. To implement RPM #3, hopper dredges operating in Reaches D or E from May 1

– November 15, must be equipped with the rigid deflector draghead as designed by the ACOE Engineering Research and Development Center, formerly the Waterways Experimental Station (WES), or if that is unavailable, a rigid sea turtle deflector attached to the draghead.
Deflectors must be checked and/or adjusted by a designated expert prior to a dredge operation to insure proper installment and operation during dredging. The deflector must be checked after every load throughout the dredge operation to ensure that proper installation is
maintained. Sinc e operator skill is important to the effectiveness of the WES

- developed draghead, operators must be properly instructed in its use. Dredge inspectors must ensure that all measures to protect sea turtles are being followed during dredge operations.

5. To impl ement RPM #4, observer coverage on hopper dredges operating in the river (reaches

AA

– C) must be sufficient for 100% monitoring of hopper dredging operations. This monitoring coverage must involve the placement of a NMFS

- approved observer on board

the dre dge for every day that dredging is occurring. The observer must work a shift schedule appropriate to allow for the observation of at least 50% of the dredge loads (e.g., 12 hours on, 12 hours off). The ACOE must ensure that ACOE dredge operators and/or a ny dredge contractor adhere to the attached “Monitoring Specifications for Hopper Dredges”198

with trained NMFS

- approved observers, in accordance with the attached “Observer Protocol” and “Observer Criteria” (Appendix A). No observers can be deployed to the dredge site until ACOE has written confirmation from NMFS that they have met the qualifications to be a “NMFS

- approved observer” as outlined in Appendix A . If substitute observers are required during dredging operations, ACOE must ensure that NMFS approva l is obtain before those observers are deployed on dredges.

6. To implement RPM #5, observer coverage is required on all hopper dredges operating in the Bay (reaches D and E) during the period of May 1

- November 15. This monitoring coverage must involve t he placement of a NMFS

- approved observer on board the dredge for every day that dredging is occurring. The observer must work a shift schedule appropriate to allow for the observation of at least 50% of the dredge loads (e.g., 12 hours on, 12 hours off). ACOE must ensure that ACOE dredge operators and/or any dredge contractor adhere to the attached “Monitoring Specifications for Hopper Dredges” with trained NMFS

approved observers, in accordance with the attached “Observer Protocol” and “Observer

Criteria ” (Appendix A). No observers can be deployed to the dredge site until ACOE has written confirmation from NMFS that they have met the qualifications to be a “NMFS

approved observer” as outlined in Appendix A . If substitute observers are required during

dr edging operations, ACOE must ensure that NMFS approval is obtain before those observers are deployed on dredges.

7. To implement RPM #5, the ACOE shall require of the dredge operator that, when the observer is off watch, the cage shall not be opened unless it is clogged. The ACOE shall also require that if it is necessary to clean the cage when the observer is off watch, any aquatic biological material is left in the cage for the observer to document and clear out when they return on duty. In addition, the observer shall be the only one allowed to clean
off the overflow screen.

8. To implement RPM #6, if sea turtles are present during dredging or material transport, vessels transiting the area must post a bridge watch, avoid intentional approaches closer tha n 100 yards when in transit, and reduce speeds to below 4 knots if bridge watch identifies a listed species in the immediate vicinity of the dredge.

9. To implement RPM #6, the ACOE must ensure that all contracted personnel involved in operating hopper dredge s receive thorough training on measures of dredge operation that will minimize takes of sea turtles. Training shall include measures discussed in Appendix

A.

10. To implement RPM #7, the procedures for handling live sea turtles must be followed in the

unlik ely event that a sea turtle survives entrainment in the dredge (Appendix B).

11. To implement RPM # 8 , each winter that blasting is undertaken, the ACOE must inform NMFS of the commencement of blasting operations 3 days prior to the actual start date and

of th e completion date within 3 days after the actual end of operations.199

12. To implement RPM # 9 , at least 45 days prior to the commencement of blasting, the ACOE

must submit to NMFS a plan outlining the measures the ACOE will take to ensure that no

shortnose or At lantic sturgeon are present within 500 feet of the detonation site. This plan

may involve the use of an underwater imaging system (sonar fish finder, DIDSON, video etc.) to document the presence of fish in the area surrounding the blast site or could invo lve relocation trawling . This plan must be developed with input from shortnose and Atlantic sturgeon experts. The plan must also contain measures to ensure that the 500

- foot radius surrounding the detonation site is clear within 30 minutes of the commenc ement of the
detonation.

13. To implement RPM# 9 , the ACOE must not commence blasting operations prior to receiving confirmation from NMFS that the blasting plan is acceptable.

14. To implement RPM#10, the ACOE must work with Atlantic and shortnose sturgeon

res earchers to monitor the movement of acoustically tagged sturgeon during the blasting operations. The monitoring plan must be submitted to NMFS 45 days prior to the commencement of blasting.

15. To implement RPM# 11 , the ACOE must ensure that no blasting occu r when shortnose or Atlantic sturgeon are detected within 500 feet of the blast site and that the contractor follows all procedures outlined in the plan described in T&C #20.

16. To implement RPM #1 2 , acoustic monitoring must be conducted on the first day of blasting to verify that sound levels at 140 feet and 500 feet from the blasting is less than or equal to the values estimated by ACOE (i.e., peak 120psi, average 70psi at 140 feet, with noise levels below 180dB at 500 feet). Results of this monitoring mus t be reported to NMFS prior to any subsequent blasting.

17. To implement RPM#13, at least 45 days prior to the commencement of blasting, the ACOE will submit to NMFS a plan outlining the measures the ACOE must take to monitor for injured or dead sturgeon fol lowing blasting. This plan must include the use of observers to
monitor an area with a radius of at least 1

, 000 feet surrounding the blast site for dead fish.

18. To implement RPM#14, for mechanical dredging following blasting operations, the ACOE must requi re that observer coverage is sufficient for 100% monitoring of dredging operations. This monitoring coverage must involve the placement of a NMFS

- approved observer on board the dredge for every day that dredging is occurring. The observer must
work a shi ft schedule appropriate to allow for the observation of at least 50% of the dredge loads (e.g., 12 hours on, 12 hours off). The NMFS approved observer must observe all discharges of dredged material from the dredge bucket to the scow or hopper. All biolo gical material disposed of at the disposal site must be documented by a NMFS

- approved observer as outlined in Appendix B ). No observers can be deployed to the dredge site until ACOE has written confirmation from NMFS that they have met the qualifications to be a “NMFS

approved observer” as outlined in Appendix A . If substitute observers are required during dredging operations, ACOE must ensure that NMFS approval is obtain ed before those observers are deployed on dredges.200

19. To implement RPM #15, any sturge on observed in the dredge scow during mechanical dredging operations must be removed with a net and, if alive, returned to the river away from the blasting site.

20. To implement RPM #16, the ACOE must conduct sediment sampling following the completion of dre dging to confirm that substrate type is unchanged following the deepening in Reach AA, A, B, D and E. In the unlikely event that it is found that substrate type has changed as a result of the deepening, ACOE must work with us to develop an appropriate

res toration method to restore substrate types in these reaches. Sediment samples must be taken pre

- and post

- deepening that are sufficient to document any changes in sediment type. This sampling must include a pre

- and post

- blasting survey of hard bottom ha bitat in Marcus Hook to document any unanticipated loss of hard bottom habitat in the area. S hould it be found that substrate type has changed as a result of the deepening, ACOE must work with us to develop an appropriate restoration method to restore sub strate types in this reach.

21. To implement RPM#1 7 , the ACOE must work with Atlantic and shortnose sturgeon researchers to monitor the movement of acoustically tagged sturgeon during dredging operations. The monitoring program must be designed to provide cov erage of one full dredge cycle in each affected reach during the initial construction period and one full dredge cycle in each affected reach during the maintenance period. The monitoring program must also cover one dredge cycle with a hopper dredge in Re ach AA, A, B or C and one dredge cycle with a hopper dredge in Reach D or E. The monitoring plan must be submitted to NMFS 45 days prior to the commencement of dredging where monitoring will occur. Preliminary reports containing information on the number of tagged sturgeon detected and their movements must be provided to NMFS within 90 days of the completion of dredging. This term and condition does not require ACOE to tag any sturgeon with telemetry tags.

22. To implement RPM # 18

, the ACOE must ensure tha t fin clips are taken (according to the procedure outlined in Appendix E ) of any sturgeon captured during the project and that the fin clips are sent to NMFS for genetic analysis. Fin clips must be taken prior to preservation of other fish parts or whole bodies.

23. To implement RPM #19, a ll collected sturgeon must be inspected for a PIT tag with an appropriate PIT tag reader. Any tag numbers must be recorded and reported to NMFS.

24. To implement RPM # 20 , in the event of any lethal takes of shortnose or Atla ntic sturgeon, any dead specimens or body parts must be photographed, measured, and preserved (refrigerate or freeze) until disposal procedures are discussed with NMFS. The form included as Appendix F (sturgeon salvage form) must be completed and submitte d to

NMFS.

25. To implement RPM # 21 , in the event of any lethal takes of sea turtles , any dead specimens or body parts must be photographed, measured, and preserved (refrigerate or freeze) until disposal procedures are discussed with NMFS.

26. To implement R PM # 21 , if a decomposed turtle or turtle part is entrained during dredging operations, an incident report must be completed and the specimen must be photographed. Any turtle parts that are considered ‘not fresh’ (i.e., they were obviously dead prior to th e201

dredge take and ACOE anticipates that they will not be counted towards the ITS) must be frozen and transported to a nearby stranding or rehabilitation facility for review. ACOE must ensure that the observer submits the incident report for the decomposed turtle part, as well as photographs, to NMFS within 24 hours of the take (see Appendix D ) and request
concurrence that this take should not be attributed to the Incidental Take Statement. NMFS shall have the final say in determining if the take should co unt towards the Incidental Take

Statement.

27. To implement RPM # 22 , the ACOE must contact NMFS within 24 hours of any interactions with sturgeon or sea turtles, including non

- lethal and lethal takes. NMFS will provide contact information annually when alerte d of the start of dredging activity. Until alerted otherwise, the ACOE should contact Julie Crocker: by email ( julie.crocker@noaa.gov) or phone (978) 282

- 8480 or the Section 7 Coordinator by phone (978)281

- 9328 or fax 978

- 281

- 9394). Take information shoul d also be reported by e

- mail

to: incidental.take@noaa.gov

.

28. To implement RPM # 22 , the ACOE must photograph and measure any sturgeon or sea turtles observed during project operations (including whole sturgeo n or sea turtles or body parts observed at the disposal location or on board the dredge, hopper or scow) and the corresponding form (Appendix D ) must be completed and submitted to NMFS within 24

hours by fax (978

- 281

- 9394) or e

- mail (incidental.take@noaa.g ov)

.

29. To implement RPM # 22

, any time a take occurs ACOE must immediately contact NMFS to review the situation. At that time, ACOE must provide NMFS with information on the amount of material dredged thus far and the amount remaining to be dredged during th at cycle. Also at that time, ACOE should discuss with NMFS whether any new management measures could be implemented to prevent the total incidental take level from being

exceeded and will work with NMFS to determine whether this take represents new inform ation revealing effects of the action that may not have been previously considered.

30. To implement RPM #8, the ACOE must submit a final report summarizing the results of dredging and any takes of listed species to NMFS within 30 working days of the complet ion of each dredging contract (by mail to the attention of the Section 7 Coordinator, NMFS Protected Resources Division, 55 Great Republic Drive, Gloucester, MA 01930). This report must be submitted at the close of each dredging contract during constructi on of the 45 foot channel as well as each time maintenance dredging is required.

The reasonable and prudent measures, with their implementing terms and conditions, are designed to minimize and monitor the impact of incidental take that might otherwise res ult from the proposed action. Specifically, these RPMs and Terms and Conditions will keep us informed of when and where dredging and blasting activities are taking place and will require ACOE to report any take in a reasonable amount of time, as well as i mplement measures to monitor for entrainment during dredging and avoid conducting blasting activities when sturgeon are in the immediate area surrounding the blast site. The ACOE has reviewed the RPMs and Terms and Conditions outlined above and has agreed to implement all of these measures as described herein and in the referenced Appendices. The discussion below explains why each of these RPMs and Terms and Conditions202

are necessary and appropriate to minimize or monitor the level of incidental take assoc iated with the proposed action and how they represent only a minor change to the action as proposed by the

ACOE.

RPM #1 and #8 and Term and Condition #1 and #11 are necessary and appropriate because they
will serve to ensure that we are aware of the date s and locations of all dredging and blasting activities. This will allow us to monitor the duration and seasonality of dredging activities as well as give us an opportunity to provide ACOE with any updated contact information for NMFS staff. This is only a minor change because it is not expected to result in any delay to the project and will merely involve an occasional telephone call or e

- mail between ACOE and NMFS staff.

Several of the RPMs (#2,4, 5 and 14) as well as the implementing Term and Conditio ns (#2, 3, 5,6,7, and 18) are necessary and appropriate because they require that the ACOE have sufficient observer coverage to ensure the detection of any interactions with listed species. This is necessary for the monitoring of the level of take associa ted with the proposed action. The inclusion of these RPMs and Terms and Conditions is only a minor change as the ACOE included some level of observer coverage in the original project description and the increase in coverage (i.e., the addition

of the mont h of May for hopper dredges operating in the Bay, the addition of observers for hopper dredges operating in the river) will represent only a small increase in the cost of the project and will not result in any delays. These also represent only a minor cha nge as in many instances they serve to clarify the duties of the inspectors or observers.

RPM #3 and Term and Condition #4, is necessary and appropriate as the use of draghead deflectors is accepted standard practice for hopper dredges operating in places and at times of year when sea turtles are known to be present and has been documented to reduce the risk of entrainment for sea turtles, thereby minimizing the potential for take of these species. This represents only a minor change as all of the hopper dredges likely to be used for this project, including the ACOE owned McFarland which may be used for maintenance dredging, already have draghead deflectors, dredge operators are already familiar with their use, and the use will not affect the efficiency of the dredging operation. Additionally, maintenance of the existing channel is conducted with draghead deflectors in place.

RPM #6 and Term and Conditions #8 and 9 are necessary and appropriate as they will require that dredge operators use best managem ent practices, including slowing down to 4 knots should listed species be observed, that will minimize the likelihood of take. This represents only a minor change as following these procedures should not increase the cost of the dredging operation or resu lt in any delays of reduction of efficiency of the dredging project.

RPM #7 and #15 and Term and Condition #10 and 19 are necessary and appropriate to ensure that any sea turtles or sturgeon that survive entrainment in a hopper dredge or capture in a mec hanical dredge are given the maximum probability of remaining alive and not suffering additional injury or subsequent mortality through inappropriate handling. This represents only a minor change as following these procedures will not result in an increas e in cost or any delays to the proposed project.

RPM #8

- 13 and their implementing Terms and Conditions (#11

- 17) are necessary and appropriate203

to minimize the potential for blasting activities to take place when sturgeon are within 500 meters of

the deto nation site. These conditions are also designed to verify that the sound and pressure levels presented by ACOE and relied on by NMFS in estimating take are valid and that a 500 meter exclusion zone is sufficient. This does not cause more than minor chang es because it merely provides additional clarification to the requirement already imposed by the ACOE to conduct underwater monitoring of pressure levels associated with blasting. The clarification of the already required pressure monitoring and the inclu sion of sound monitoring will not cause delays to the project or add a significant cost. The monitoring plan represents only a minor change as the plan to be implemented will be designed by ACOE in cooperation with us and is not anticipated to result in

a ny increased cost, delays of the project or decreased efficiency of blasting operations. Further, the plan will not alter the time of year or location of detonation sites.

RPM #16 and Term and Condition #20 are necessary and appropriate as they will se rve to verify the ACOE’s determination that deepening will not alter the substrate type in any reach of the river. The monitoring plan represents only a minor change as some post

- construction monitoring is already planned. Also, any necessary restoration will be designed by ACOE in cooperation with us and is not anticipated to result in any delays of the project or changes to dredging operations.

RPM #17 and Term and Condition #21 are necessary and appropriate as they will serve to monitor
the movement s of tagged sturgeon during dredging. A successful study was carried out in 2011; the continuation of a similar study in different river reaches and at different times of year will serve to verify assumptions made by us and ACOE regarding the movements of sturgeon near operating dredges, which were based on the 2011 study and other similar studies. The monitoring plan represents only a minor change as it will not result in any delays to dredging or modifications of the dredge plan and any increased cost w ill be very small in comparison to the total costs of the project.

RPM #18

- 22 and Terms and Conditions #22

- 30 are necessary and appropriate to ensure the proper handling and documentation of any interactions with listed species as well as requiring that these interactions are reported to us in a timely manner with all of the necessary information. This is essential for monitoring the level of incidental take associated with the proposed action. Theses RPMs and Terms and Conditions represent only a mino r change as compliance will not result in any increased cost, delay of the project or decrease in the efficiency of the dredging operations.

12.0 CONSERVATION RECOMMENDATIONS

In addition to Section 7(a)(2), which requires agencies to ensure that all p rojects will not jeopardize the continued existence of listed species, Section 7(a)(1) of the ESA places a responsibility on all federal agencies to “utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the cons ervation of endangered species.” Conservation Recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information. As such,
NMFS recommends that the ACOE consider the following Conservation Recommendations:

(1) To the extent practicable, the ACOE should avoid dredging during times of year when listed species are likely to be present.204

(2) Population information on certain life stages of shortnose sturgeon is still sparse for this river system. The ACOE should continue to support studies to evaluate habitat and the use of the river, in general, by juveniles as well as use of the area below Philadelphia by all life
stages.

(3) If any lethal take occurs, the ACOE should a rrange for contaminant analysis of the specimen. If this recommendation is to be implemented, the fish should be immediately frozen and NMFS should be contacted within 24 hours to provide instructions on shippi ng and preparation

.

(4) The ACOE should conduct studies at the upland dredged material disposal areas to assess the potential for improved screening to : (1) establish the type and size of biological material that may be entrained in the cutterhead dredge, a nd (2) verify that monitoring the disposal site without screening is providing an accurate assessment of entrained material.

(5) If a hopper dredge is used outside of Reaches D and A, the ACOE should consider using a dredge equipped with the rigid deflector draghead as designed by the ACOE Engineering Research and Development Center, formerly the Waterways Experimental Station or, if that is unavailable, a rigid sea turtle deflector attached to the draghead. While sea turtles are unlikely to occur in these r eaches, the sea turtle deflector may also work to reduce the number of interactions between the dredge and sturgeon.

(6) The ACOE should support studies to determine the effectiveness of using a sea turtle deflector to minimize the potential entrainment of s turgeon during hopper dredging.

13.0 REINITIATION OF CONSULTATION
This concludes formal consultation on the proposal by the ACOE to deepen the Delaware River Philadelphia to the Sea federal navigation project

. As provided in 50 CFR §402.16, reinitiatio n of formal consultation is required where discretionary federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2 ) new information reveals effects of the action that may not have been previously considered; (3) the identified action is subsequently modified in a manner that causes an effect to listed species; or (4) a new species is listed or critical habitat designa ted that may be affected by the identified action. In instances where the amount or extent of incidental take is exceeded, Section 7 consultation must be reinitiated immediately.205

14.0 LITERATURE CITED

ACOE (Army Corps of Engineers). 1983. Dredging a nd Dredged Material Disposal. U.S. Dept. Army. Engineer Manual 1110

- 2

- 5025.

ACOE 1997. Delaware River Main Channel Deepening: Supplemental Final Environmental Impact Statement. Prepared by USACOE Philadelphia District.

ACOE 2009. Delaware River Main S tem and Channel Deepening Project. Environmental Assessment. Prepared by USACOE Philadelphia District. April 2009. Available at: http://www.nap.usace.army.mil/cenap

- pl/MainChannel_EA_3Apr09.pdf

ACOE 2011. Final Environmental Assessment: Delaware River Main Channel Deepening. Prepared by USACOE Philadelphia District. Available at: http://www.nap.usace.army.mil/cenap

pl/drmcdp/DRMCD%20

- %20Final%20Environmental%20Assessment%20

- %20September%202011.pdf

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APPE NDIX A

.

MONITORING SPECIFICATIONS FOR HOPPER DREDGES

I. EQUIPMENT SPECIFICATIONS

A. Baskets or screening

Baskets or screening must be installed over the hopper inflo ws with openings no smaller than 4 inches by 4 inches to provide 100% coverage of all dredged material and shall remain in place during all dredging operations. Baskets/screening will allow for better monitoring by observers of the dredged material intake for sea turtles , sturgeon and their remains. The baskets or screening must be safely accessible to the observer and designed for efficient cleaning.

B. Draghead

The draghead of the dredge shall remain on the bottom at all times during a pumping operati on, except when:

1) the dredge is not in a pumping operation, and the suction pumps are turned completely off;

2) the dredge is being re

- oriented to the next dredge line during borrow activities; and

3) the vessel’s safety is at risk (i.e., the dragarm is trailing too far under the ship’s hull).

At initiation of dredging, the draghead shall be placed on the bottom during priming of the suction pump. If the draghead and/or dragarm become clogged during dredging activity, the pump shall be shut down, the dragarms rai sed, whereby the draghead and/or dragarm can be flushed out by trailing the dragarm along side the ship. If plugging conditions persist, the draghead shall be placed on deck, whereby sufficient numbers of water ports can be opened on the draghead to preve nt future plugging.

Upon completion of a dredge track line, the drag tender shall:

1) throttle back on the RPMs of the suction pump engine to an idling speed (e.g., generally less than 100 RPMs) prior to raising the draghead off the bottom, so that no flow of material is coming through the pipe into the dredge hopper. Before the draghead is raised, the vacuum gauge on the pipe should read zero, so that no suction exists both in the dragarm and draghead, and no suction force exists that can impinge a turtle on the draghead grate;

2) hold the draghead firmly on the bottom with no flow conditions for approximately 10 to 15 seconds before raising the draghead; then, raise the draghead quickly off the bottom and up to

a mid

- water column level, to further reduce the potential for any adverse interaction with nearby turtles;

3) re

- orient the dredge quickly to the next dredge line; and

4) re

- position the draghead firmly on the bottom prior to bringing the dredge pump to normal pumping speed, and re

- starting dredging activ ity.248

C. Floodlights

Floodlights must be installed to allow the NMFS

- approved observer to safely observe and
monitor the baskets or screens.

D. Intervals between dredging

Sufficient time must be allotted between each dredging cycle for the NMFS

- ap proved observer to inspect and thoroughly clean the baskets and screens for sea turtles and/or turtle parts and document the findings. Between each dredging cycle, the NMFS

- approved observer should also examine and clean the dragheads and document the fin dings.

II. OBSERVER PROTOCOL

A. Basic Requirement

A NMFS

- approved observer with demonstrated ability to identify sea turtle and sturgeon species must be placed aboard the dredge(s ) being used, starting immediately upon project commencement to monitor for the presence of listed species and/or parts being entrained or present in the vicinity of dredge operations.

B. Duty Cycle Observers are required at times and locations outli ned in the ITS. While onboard, the observer must work a shift schedule appropriate to allow for the observation of at least 50% of the dredge loads (e.g., 12 hours on, 12 hours off). The ACOE shall require of the dredge operator that,
when the observer i s off watch, the cage shall not be opened unless it is clogged. The ACOE shall also require that if it is necessary to clean the cage when the observer is off watch, any aquatic biological material is left in the cage for the observer to document and clea r out when they return on duty. In addition, the observer shall be the only one allowed to clean off the
overflow screen.

C. Inspection of Dredge Spoils

During the required inspection coverage, the trained NMFS

- approved observer shall inspect the gal vanized screens and baskets at the completion of each loading cycle for evidence of sea turtles or shortnose sturgeon. The Endangered Species Observation Form shall be completed for each loading cycle, whether listed species are present or not. If any wh ole (alive or dead) or turtle parts are taken incidental to the project(s), NMFS Protected Resources Division must be

contacted by phone (978

- 281

- 9328) or e

- mail ( incidental.take@noaa.gov ) within 24 hours of the take. An incident report for sea turtle/shortnose sturgeon take (Appendix D ) shall also be completed by the observer and sent via FAX (978) 281

- 9394 or e

- mail ( incidental.take@noaa.gov ) within 24 hours o f the take. Incident reports shall be completed for every take regardless of the state of decomposition. NMFS will determine if the take should be attributed to the incidental take level, after the incident report is received. Every incidental take (ali ve or dead, decomposed or fresh) should be photographed, and photographs shall be sent to NMFS either electronically ( incidental.take@noaa.gov) or through the mail. Weekly reports,249

including all completed l oad sheets, photographs, and relevant incident reports, as well as a final report, shall be submitted to NMFS NER, Protected Resources Division, 55 Great Republic Drive, Gloucester, MA 01930

- 2298.

D. Information to be Collected

For each sighting of an y endangered or threatened marine species (including whales as well as sea turtles), record the following information on the Endangered Species Observation Form (Appendix D ):

1) Date, time, coordinates of vessel 2) Visibility, weather, sea state 3) Vector of sighting (distance, bearing) 4) Duration of sighting 5) Species and number of animals 6) Observed behaviors (feeding, diving, breaching, etc.) 7) Description of interaction with the operation

E. Disposition of Parts

If any whole turtles or sturgeon (alive or dead, decomposed or fresh) or turtle or shortnose sturgeon parts are taken incidental to the project(s), NMFS Protected Resources must be
contacted within 24 hours of the take (phone: 978

- 281

- 9328 or e

- mail (incidental.take@noaa.gov) . All whole dead sea turtles or sturgeon, or turtle or shortnose sturgeon parts, must be photographed and described in detail on the Incident Report of Sea Turtle Mortality (Appendix D ). The photographs a nd reports should be submitted by email ( incidental.take@noaa.gov ) or mail (Attn: Section 7 Coodinator, NMFS, Protected Resources Division, 55 Great Republic Drive, Gloucester, MA 01930

- 2298 ) . After NMFS is notified of the take, it may instruct the observer to save th e animal for future analysis if there is freezer space. Disposition of dead sea turtles/ sturgeon will be determined by NMFS at the time of the take notification. If the species is unidentifiable or if there are entrails that may have come from a turtle, the subject should be photographed, placed in plastic bags, labeled with location, load number, date and time taken, and placed in cold storage

.

Live turtles (both injured and uninjured) should be held onboard the dredge until transported as

soon as poss ible to the appropriate stranding network personnel for rehabilitation (Appendix C ). No live turtles should be released back into the water without first being checked by a qualified veterinarian or a rehabilitation facility. The NMFS Stranding Network C oordinator ((978) 28 2

- 8470 ) should also be contacted immediately for any marine mammal injuries or mortalities.

III. OBSERVER REQUIREMENTS

Submission of resumes of endange red species observer candidates to NMFS for final approval ensures that the observers placed onboard the dredges are qualified to document takes of endangered and threatened species, to confirm that incidental take levels are not exceeded, and to250

provide e xpert advice on ways to avoid impacting endangered and threatened species. NMFS does not offer certificates of approval for observers, but approves observers on a case

- by

- case basis.

A. Qualifications

Observers must be able to:

1) differentiate between l eatherback ( Dermochelys coriacea ), loggerhead Caretta caretta ), Kemp's ridley (Lepidochelys kempii ), green ( Chelonia mydas ), and hawksbill (Eretmochelys imbricata ) turtles and their parts, and shortnose ( Acipenser brevirostrum ) and Atlantic (

Acipenser oxyr inchus oxyrinchus ) sturgeon and their parts;

2) handle live sea turtles and sturgeon and resuscitate and release them according accepted procedures;

3) correctly measure the total length and width of live and whole dead sea turtle and sturgeon species;

4) observe and advise on the appropriate screening of the dredge’s overflow, skimmer funnels, and dragheads; and

5) identify marine mammal species and behaviors.

B. Training

Ideally, the applicant will have educational background in marine biology, general experience aboard dredges, and hands

- on field experience with the species of concern. For observer candidates who do not have sufficient experience or educational background to gain immediate approval as endangered species observers, the below observer training is necessary to be considered admissible by NMFS. We can assist the ACOE by identifying groups or individuals capable of providing acceptable observer training. Therefore, at a minimum, observer training
must include:

1) instruction on how to identify sea tur tles and sturgeon and their parts;

2) instruction on appropriate screening on hopper dredges for the monitoring of sea turtles and sturgeon (whole or parts);

3) demonstration of the proper handling of live sea turtles and sturgeon incidentally captured during pr oject operations. Observers may be required to resuscitate sea turtles according to accepted procedures prior to release;

4) instruction on standardized measurement methods for sea turtle and sturgeon lengths and widths; and

5) instruction on how to identify m arine mammals; and

6) instruction on dredging operations and procedures, including safety precautions onboard
a vessel.251252253

APPENDIX B.

MONITORING SPECIFICATIONS FOR MECHANICAL DREDGES

I. EQUIPMENT SPECIFICATIONS

A. Floodlights

Should dredging occ ur at night or in poor lighting conditions, floodlights must be installed to
allow the NMFS

- approved observer to safely observe and monitor dredge bucket and scow.

B. Intervals between dredging

Sufficient time must be allotted between each dredging cyc le for the NMFS

- approved observer to inspect the dredge bucket and scow for shortnose sturgeon and/or sturgeon parts and document the findings.

II. OBSERVER PROTOCOL

A. Basic Requirement

A NMFS

- approved observer with demonstrated ability to identify shortnose sturgeon must be placed aboard the dredge(s) being used; starting immediately upon project commencement to monitor for the presence of listed species and/or p arts being taken or present in the vicinity of dredge operations.

B. Duty Cycle

A NMFS

- approved observer must be onboard during dredging until the project is completed. While onboard, observers shall provide the required inspection coverage to provid e 100% coverage of all dredge

- cycles.

C. Inspection of Dredge Spoils

During the required inspection coverage, the NMFS

- approved observer shall observe the bucket as it comes out of the water and as the load is deposited into the scow during each dre dge cycle for evidence of shortnose sturgeon. If any whole sturgeon (alive or dead) or sturgeon parts are taken incidental to the project(s), NMFS must be contacted within 24 hours of the take (phone:
978

- 281

- 9328 or email (incidental.take@noaa.gov) . An incident report for sturgeon take shall also be completed by the observer and sent to NMFS via FAX (978) 281

- 9394 or e

- mail ( incidental.take @noaa.gov) within 24 hours of the take. Incident reports shall be completed for every take regardless of the state of decomposition. Every incidental take (alive or dead, decomposed or fresh) must be photographed. A final report including all completed load sheets, photographs, and relevant incident reports are to be submitted to the attention of the Section 7
Coordi nator, NMFS Protected Resources Division, 55 Great Republic Drive, Gloucester, MA
01930.254

D. Inspection of Disposal

The NMFS

- approved observer shall observe all disposal operations to inspect for any whole sturgeon or sturgeon parts that may have been mi ssed when the load was deposited into the scow. If any whole sturgeon (alive or dead) or sturgeon parts are observed during disposal operation, the procedure for notification and documentation outlined above should be completed.

E. Disposition of Par ts

As required above, NMFS must be contacted as soon as possible following a take. Any dead sturgeon should be refrigerated or frozen until disposition can be discussed with NMFS. Under no circumstances should dead sturgeon be disposed of without confir mation of disposition details
with NMFS.

III. OBSERVER REQUIREMENTS

Submission of resumes of endangered species observer candidates to NMFS for final approval ensures that the observers placed onboard the dredges are qualified to document takes of endangered and threatened species, to confirm that incidental take levels are not exceeded, and to provide expert advice on ways to avoid i mpacting endangered and threatened species. NMFS does not offer certificates of approval for observers, but approves observers on a case

- by

- case basis.

A. Qualifications

Observers must be able to:

1) differentiate between shortnose ( Acipenser brevir ostrum ) and Atlantic ( Acipenser oxyrinchus oxyrinchus ) sturgeon and their parts; 2) handle live sturgeon; 3) correctly measure the total length and width of live and whole dead sturgeon species;

B. Training

Ideally, the applicant will have educati onal background in biology, general experience aboard dredges, and hands

- on field experience with the species of concern. For observer candidates who do not have sufficient experience or educational background to gain immediate approval as endangered spec ies observers, we note below the observer training necessary to be considered admissible by NMFS. We can assist the ACOE by identifying groups or individuals capable of providing acceptable observer training. Therefore, at a minimum, observer training mu st include:

1) instruction on how to identify sturgeon and their parts;

2) instruction on appropriate screening on hopper dredges for the monitoring of255

sturgeon(whole or parts);

3) demonstration of the proper handling of live sturgeon incidentally captured during project operations;

4) instruction on standardized measurement methods for sturgeon lengths and widths; and 5) instruction on dredging operations and procedures, including safety precautions
onboard.APPENDIXC

. Sea Turtle Handling and Resuscitation

It is unlikely that sea turtles will survive entrainment in a hopper dredge, as the turtles found in

the dragheads are usually dead, dying, or dismantled. However, the procedures for handling live

sea turtles follow in case the unlikely event should occur. These guidelines are adapted from 50

CFR § 223.206(d)(1).

Please photograph all turtles (alive or dead) and turtle parts found during dredging activ,ities

and complete the Incident Report of Sea Turtle Take (Appendix D).

Dead sea turtles

The procedures for handling dead sea turtles and parts are described in Appendix C- II

- E.

Live sea turtles

When a sea turtle 

# is found in the dredge gear, observe it for. activity and potential injuries.

< If the turtle is actively moving, it should be retained onboard until evaluated for injuries by a pennitted rehabilitation facility. Due to the potential for internal injuries associated

. with hopper entrainment, it is necessary to transport the live turtle to the nearest

rehabilitation facility as soon as possible, following these steps: 1) Contact the nearest rehabilitation facility to infonn them of the incident. If the

. rehabilitation personnel cannot be reached immediately, please contact NMFS stranding hotline at 978-281-9351 or NMFS Sea Turtle Stranding Coordinator at 978­

281-9328. 2) Keep.the turtle shaded and moist (e.g., with a water-soaked towel over the eyes,

carapace, and flippers), and in a confined location free from potential injury. 3) Contact the crew boat to pick up the turtle as soon as possible from the dredge (within

12to 24 hours maximum). The crew boat should be aware of the potential for such

an incident to occur and should develop an appropriate protocol for transporting live

sea turtles. 4) Transport the live turtle to the closest pennitted rehabilitation facility able to handle

. such a case.

Do not assume that 

### all inactive turtle is dead. The onset of rigor mortis and/or rotting

flesh are often the only definite indications that a turtle is dead. Releasing a comatose
turtle into any amount of water will drown it, and a turtle may recover once its lungs have
had a chance to drain.

.

< If a turtle appears to be comatose (unconscious), contact the designated strandinglrehabilitationpersonnel immediately. Once the rehabilitation personnel has

been infonned of the incident, attempts should be made to revive the turtle at once. Sea·

turtles have been known to revive up to 24 hours after resuscitation procedures have been

followed.

• Place the animal on its bottom shell (plastron) so that the turtle is right side up and

elevate the hindquarters at least 6 inches for a period of 4 up to 24 hours

.. Thedegree of elevation depends on the size of the turtle; greater elevations are required for larger turtles. Periodically, rock the turtle gently left to right and right to left by holding the

outer edge of the shell ( carapace) and lifting one side about 3 inches then alternate

to the other side. Periodically, gently touch the eye and pinch thetail (reflex test) to see ifthere is a

response. Keep the turtle in a safe, contained place, shaded, and moist (e.g., with a watersoaked towel over the eyes, carapace, and flippers) and observe it for up to 24 hours.

. . If the turtle begins actively moving, retain the turtle until the appropriate

rehabilitation personnel can evaluate the animal. The rehabilitation facility

should eventually release the animal in a manner that minimizes the chances of re-impingement and potential harm to the animal (i.e., from cold stunning).

Turtles that fail to move within several hours (up to 24) must be handled in the

manner described in Appendix C-II-E, or transported to a suitable facility for

necropsy (if the condition ofthe sea turt,le allows and the rehabilitation facility

wants to

necropsy the animal).

Strandinglrehabiliton contacts

Sea Turtles in Delaware Bay

<. NMFS Stranding Hotline: (978) 281-9351 or NERStranding.staff@noaa.gov

Delaware:



### < MERR Institute, Inc. Nassau, DE

302-228-5029

New Jersey

• Marine Mammal Stranding Center Brigantine, NJ

609-266-0538258

APPENDIX D
ENDANGERED SPECIES OBSERVER FORM Delaware River Deepening

Daily Report

Date: _________________________________ Geographic Site:_______________________________________________________________
Location: Lat

/Long _____________________ Vessel Name ____________________________

Weather conditions:_____________________________________________________________

______________________________________________________________________________ Water temperature: Surfac e _____________ Below midwater (if known) _____________

Condition of screening apparatus: __________________________________________________

______________________________________________________________________________

__________________________________ ____________________________________________ Incidents involving endangered or threatened species? (Circle) Yes No ( If yes, fill out Incident Report of Sea Turtle/ Sturgeon Mortality )

Comments (type of material, biological specimens, unusual circ umstances, etc:)

___________________________________________________________

______________________________________________________________________________

______________________________________________________________________________
Observer’s Name: ___

____________________________________________ Observer’s Signature: ____________________________________________

Species # of Sightings # of Animals Comments

______________ ________ ______ ____________ ________________________

______________ ______________ ____________ ________________________

______________ ______________ ____________ ________________________

______________ ______________ ____________ ___________ _____________

______________ ______________ ____________ ________________________

______________ ______________ ____________ ________________________

______________ ______________ ____________ ________________________

______________ __ ____________ ____________ ________________________

______________ ______________ ____________ ________________________

______________ ______________ ____________ ________________________

______________ ______________ ____________ _______________________259 Incident Report of Sea Turtle Take

Species _____________ Date _______________ Time (specimen found) ________________

Geographic Site _______________________________________________________________ Location: Lat/Long __________

__________________________________________________ Vessel Name _________________________ Load # ______________________________ Begin load time _______________________ End load time_________________________ Begin dump time ______________________ End dum p time _______________________

Sampling method _____________________________________________________________ Condition of screening _________________________________________________________ Location where specimen recovered_____________________________

__________________

____________________________________________________________________________ Draghead deflector used? YES NO Rigid deflector draghead? YES NO Condition of deflector __________________________________________

_________________

______________________________________________________________________________ Weather conditions______________________________________________________________

______________________________________________________________________________ Water temp: Surface ________________ Below midwater (if known) _____________________

Species Information : (please designate cm/m or inches.) Head width __________________________ Plastron length ___________________________ Straight carapace length __ ______________ Straight carapace width_____________________ Curved carapace length _________________ Curved carapace width _____________________

Condition of specimen/description of animal (please complete attached diagram)

_________________________ _____________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Turtle Decomposed: NO SLIGHTLY MODERATEL Y SEVERELY

Turtle tagged: YES NO Please record all tag numbers. Tag # ______________________ Genetic sample taken: YES NO Photograph attached: YES NO (please label species, date, geographic site and vessel name on back of photo graph)

Comments/other (include justification on how species was identified) _____________________

______________________________________________________________________________

______________________________________________________________________________ Observer's Name _______________________________________ Observer’s Signature __________________________________260 Incident Report of Sea Turtle Take

Draw wounds, abnormalities, tag locations on diagram and briefly describe below.

Description of animal:261 Incident Report of Sturgeon Take Photographs should be taken and the following information should be collected from all sturgeon (alive and dead)

Date _______________ Time (specimen found) ________________

Geographic Site____________

___________________________________________ Location: Lat/Long________________________________________________________ Vessel Name _________________________ Load # ___________________________ Begin load time _______________________ End load time________

_______________ Begin dump time ______________________ End dump time _____________________

Sampling method _______________________________________________________ Condition of screening _____________________________________________________
Location whe re specimen recovered______________________________________________________________________

_____________________________________________________ Draghead deflector used? YES NO Rigid deflector draghead? YES NO
Condition of defl ector _____________________________________________________

____________________________________________________________________ Weather conditions______________________________________________________________

______________________________________________ __________________________ Water temp: Surface ________________ Below midwater (if known) _______________

Species Information : (please designate cm/m or inches.) Fork length (or total length) _____________________ Weight _____________________

Condition of specimen/description of animal

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Fish Decomposed: NO SLIGHTLY MODERATELY SEVERELY Fish tagged: YES / NO Please record all tag numbers. Tag # ________________ Genetic sample taken: YES NO Photograph attached : YES / NO (please label species, date, geographic site and vessel name on back of photograph) Comments/other (include justification on how species was identified)

______________________________________________________________________________

_____________

_____________________________________________________ Observer's Name ___________________Observer’s Signature_____________________262

Draw wounds, abnormalities, tag locations on diagram and briefly describe below

Description of fish condition:263

APPENDIX E

Procedure for obtaining fin clips from sturgeon for genetic analysis

Obtaining Sample

1. Wash hands and use disposable gloves. Ensure that any knife, scalpel or scissors used for sampling has been thoroughly cleaned and wiped with alcohol to minimize
the risk of contamination.

2. For any sturgeon, after the specimen has been measured and photographed, take a

one

- cm square clip from the pelvic fin.

3. Each fin clip should be placed into a vial of 95% non

- denatured ethanol a nd the vial should be labeled with the species name, date, name of project and the fork length and total length of the fish along with a note identifying the fish to the appropriate observer report. All vials should be sealed with a lid and fur ther secured with tape Please use permanent marker and cover any markings with tape to minimize the chance of smearing or erasure.

Storage of Sample

1. If possible, place the vial on ice for the first 24 hours. If ice is not available, please refrigerate the vial. Send as soon as possible as instructed below.

Sending of Sample

1. Vials should be placed into Ziploc or similar resealable plastic bags. Vials should be then wrapped in bubble wrap or newspaper (to prevent breakage) and sent to:

Julie Carter

NOAA/NOS

– Marine Forensics
219 Fort Johnson Road Charleston, SC 29412

- 9110
Phone: 843

- 762

- 8547

a. Prior to sending the sample, contact Russ Bohl at NMFS Northeast Regional Office (978

- 282

- 8493) to report that a sample is being sent and t o discuss proper shipping procedures.

## STURGEON SALVAGE FORM

For use in documenting dead sturgeon in the wild under ESA permit no. 1614 (version 05-16-2012)

INVESTIGATORS'S CONTACT INFORMATION

Name: First Agency Affiliation
Address

Area code/Phone number

SPECIES: (check one) 

# o shortnose sturgeon 

# o Atlantic sturgeon 

# o Unidentified Acipenser species
Check ·Unidentified" if uncertain. See reverse side of this,form for aid in identification. Last

. Email

, 

# I UNIQUE IDENTIFIER (Assigiled by NMFS)

\ DATE REPORTED:

Month DO Day[]O Year 2000
DATE EXAMINED:

Month CID DayDD Year20DD

LOCATION FOUND: OOffshore (Atlantic or Gulf beach) Olnshore (bay, river, sound, inlet, etc) River/Body of Water City· State



## - Descriptivelocation (be specific)

Latitude N (Dec. Degrees) Longitude 

### W (Dec. Degrees)

CARCASS CONDITION at
time examined: (check one)

. 

# o 1;: Fresh dead 

# o 2;: Moderately decomposed 

# o 3;: Severely decomposed 

# o 4;: Dried carcass 

# o 5;: Skeletal, scutes & cartilage SEX: 

# o Undetermined 

# o Female 

### 0 Male How was sex determined? 

## . 0 Necropsy

.



# o Eggs/milt present when pressed 

# o Borescope MEASUREMENTS:
Fork length
Total length**L~ngth** 

## 0 actual 

## 0 estimate

.. Mouth width (inside lips, see reverse side)

Interorbital width (see reverse side) Weight 

### 0 actual 

## 0 estimate Circle unit

__**~cm/in**

__ -,--cm / in

__ cm I in**_~_** em I in kg /Ib



# I ,TAGS PRESENT? Examined for external tags including fin clips? 

# 0 Yes 

# 0 No Scanned for PIT tags? DYesDNo Tag 

### #

. Tag Type Location of tag on carcass

, CARCASS DISt:tOSITION: (check one or more) 

### 01 ;: Left where found 

### 02 

## = Buried 

### 03 

## = Collected for necropsy/salvage 

### 04 

## = Frozen for later examination 

### 05 

## = Other (describe) Carcass Necropsied?

DYes DNo

Date Necropsied:

Necropsy Lead: ..

PHOTODOCUMENTATION:

Photoslvide taken? 

# 0 Yes 

# 0 No

Disposition of PhotosNideo:_.

__

.',

.,., .....

.. "­

..



### . ;

.**~:** , SAMPLES COLLECTED? 

## 0 Yes 

## 0 No Sample How preserved Dispo$ition (person, affiliation, use)

.

..

.. <)

'.**Comm~nts: "~'."**  .,Distinguishing Characteristics of Atlantic and Shortnose Sturgeon (version 07-20-2009)

Characteristic Atlantic Sturgeon, Acipenser oxyrinchus Shortnose Sturgeon, Acipenser brevirostrum

Maximum length > 9 feet' 274 cm \

Football shaped and small. Width inside lips < 55% of bony interorbital width

Paired plates posterior to the rectum & anterior to the
anal fin.

Rhombic, bony plates found along the lateral base of
the anal fin (see diagram below)

Anadromous; spawn in freshwater but primarily lead a marine existence 4 feet' 122 cm /

Wide and oval in shape. Width inside lips> 62% of bony interorbital width

1-3 pre-anal plates almost always occurring as median

structures (occurring singly)

No plates along the base of anal fin

Freshwater amphidromous; found primarily in fresh

water but does make some coastal migrations Mouth

*Pre-anal plates

Plates along the
anal fin

Habitat'Range

* From Vecsei and Peterson, 2004



### ATLANTIC

Describe any wounds / abnormalities (note tar or oil, gear or debris entanglement, propeller damage, etc.). Please note if no wounds 

### I**abnormaliti~s** are found.

Data Access Policy: Upon written request, information submitted to Natiomil Manne Fisheries Service (NOAA Fisheries) on this form

will be released to the requestor provided that the requestor credit the collector of the information and NOAA Fisheries. NOAA

Fisheries will notify the collector that these data have been requested and the intent of their use.

-,":--,