DEPARTMENT OF COMMERCE LOGO NOAA LOGO United States Department of Commerce National Oceanic and Atmospheric Administration National Marine Fisheries Service Greater Atlantic Region 55 Great Republic Drive Gloucester, MA 01930 October 28, 2021 Bill Perry U.S. Fish and Wildlife Service Division of Wildlife and Sport Fish Restoration 300 Westgate Center Drive Hadley, MA 01035-9589 Re: Yachting Solutions - Maine DOT project (FWS Boating Infrastructure Grant Program) Dear Mr. Perry: We have completed our consultation under section 7 of the Endangered Species Act (ESA) in response to your letter received on September 29, 2021, and revised on October 7, 2021, regarding the above-referenced proposed project. We reviewed your consultation request document and related materials. Based on our knowledge, expertise, and your materials, we concur with your determination that the proposed action is not likely to adversely affect any ESA-listed species and/or designated critical habitat under our jurisdiction. Therefore, no further consultation pursuant to section 7 of the ESA is required. We would like to offer the following clarifications to complement your incoming request for consultation. In discussions of the proposed project, you indicated that the bucket size for the dredge operation will be left open pending bidding unless regulators have a restriction. We will not be asking for a restriction on the size of the clamshell dredge to be used and we concur with your determination that effects to sea turtles, shortnose and Atlantic sturgeon, and Atlantic salmon from any size mechanical dredge will be insignificant (for turbidity and benthic habitat effects) and discountable (for entrapment effects). In the Description of the Action Area, we suggest that you also include the Code of Federal Regulations (CFR) definition of the action area in future requests for concurrence. In the CFR, the action area is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action” (50CFR§402.02). This includes the project’s footprint as well as the area beyond it that may experience direct or indirect effects that would not occur but for the action. Nonetheless, your description of the action area is adequate and includes the extent of all project activities and stressors involved. We also suggest that for future consultations, you include a description of the habitat found in the action area (e.g., water depths, bottom substrate types, etc.). Some of this information can be summarized from the project maps you provided or from prior field surveys or studies of the action area. For the Listed Species and Critical Habitat section, we recommend clearly defining which life stages of ESA-listed fish species are expected to be present in the action area and their likely behaviors while there. In the case of the proposed project and action area, transient and opportunistically foraging adult shortnose and Atlantic sturgeon and sub-adult Atlantic sturgeon are expected to be present. For Atlantic salmon, adults and smolts are expected to be present. In the section on turbidity, the analysis for ESA-listed fish species only addressed the effects of turbidity from dredging, not pile driving, and did not mention the use of turbidity curtains, which would reduce the extent of turbidity from both types of activities. Although the effects of turbidity from pile driving were not assessed for sturgeon and salmon, they would be no greater or more extensive than those from dredging and thus the effects on those species are also likely too small to be meaningfully measured, detected, or evaluated and are therefore insignificant. In the Noise Impacts from Pile Driving analysis, we would like to clarify that for impact driving of 20-inch steel pipe piles, the distance to the behavioral disturbance threshold for sea turtles is 50.0 meters rather than 63.1 meters, while for sturgeon and salmon, underwater noise levels will be below 150 dB RMS at distances beyond approximately 133.3 meters, not 96.7 meters. Please refer to the latest version of our GARFO Acoustic Tool at https://www.fisheries.noaa.gov/newengland- mid-atlantic/consultations/section-7-consultation-technical-guidance-greater-atlantic (updated September 14, 2020) for more information. Even with these revised distances, due to the transient nature of the individuals present, the typical avoidance behaviors exhibited by the species, and the temporary nature of the increases in underwater noise, the effects of underwater noise on sea turtles, sturgeon, and salmon are likely too small to be meaningfully measured, detected, or evaluated and are therefore insignificant. Finally, in the Benthic Habitat section, you stated that the effects are small in relation to the Rockland Harbor project area. A more appropriate assessment would be that the area to be affected is small compared to the available foraging habitat within the action area, not the project area. We acknowledge that the difference in the size and extent of the project area versus the action area is minimal and that the scale of effects is likely the same; thus, we concur with your determination. Reinitiation of consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (a) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered in the consultation; (b) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in this consultation or; (c) if a new species is listed or critical habitat designated that may be affected by the identified action. No take is anticipated or exempted. If there is any incidental take of a listed species, reinitiation would be required. Should you have any questions about this correspondence, please contact William Barnhill of my staff at (978) 282-8460 or by email at William.Barnhill@noaa.gov. For questions related to essential fish habitat, please contact Kaitlyn Shaw with our Habitat and Ecosystem Services Division at (978) 282-8457 or by email at Kaitlyn.Shaw@noaa.gov. SIGNATURE Sincerely, Jennifer Anderson Assistant Regional Administrator for Protected Resources ec: Barnhill, GAR/PRD; Shaw, GAR/HESD ECO: GARFO-2021-02606