Section 7(a)(2) of the Endangered Species Act (“ESA”) requires that each federal agency ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of those species. When the action of a federal agency may affect a protected species or its critical habitat, that agency is required to consult with either the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS), depending upon the protected species that may be affected.
Great News for Property Owners in Southwest Florida
On December 4, 2015 the National Marine Fisheries Service (NMFS) signed the Florida Statewide Programmatic Biological Opinion (Biological Opinion), which was based on NMFS review of the impacts associated with the U.S. Army Corps of Engineers (Corps’) authorization of minor in-water activities throughout Florida.
The SWPBO analyzes the effects from 11 categories of activities on the following: sea turtles (loggerhead, leatherback, Kemp’s ridley, hawksbill, and green); smalltooth sawfish; Johnson’s seagrass; sturgeon (Gulf, shortnose, and Atlantic); corals (elkhom, staghom, boulder star, mountainous star, lobed star, rough cactus, and pillar); North Atlantic right whales; and designated critical habitat for Johnson’s seagrass, smalltooth sawfish, Gulf sturgeon, loggerhead sea turtle, North Atlantic right whale, and elkhom and staghom corals in accordance with Section 7 of the ESA.
The categories of activities include:
- Installation, maintenance, and removal of shoreline stabilization materials
- Installation, maintenance, and removal of pile-supported structures and anchored buoys
- Maintenance and minor dredging
- Reconfiguration of existing docking facilities within an authorized marina
- Installation, maintenance, and removal of water-management outfall structures and associated endwalls
- Installation, maintenance, and removal of scientific survey devices
- Installation, maintenance, and removal of boat ramps
- Aquatic habitat enhancement, establishment, and restoration activities
- Installation, maintenance, and removal of aerial and subaqueous utility and transmission lines, and associated structures
- Marine debris removal
- Temporary platforms, access fill, and cofferdams
As long as the proposed work is in compliance with the specific Project Design Criteria (PDCs) that have been assessed for each of the proposed activities, the recent Biological Opinion will help expedite ESA consultation between the Corps and the NMFS for the above-mentioned categories of minor in-water activities.
Of particular importance for Southwest Florida residents are the limitations on projects which may impact the smalltooth sawfish habitat. According to the Biological Opinion, all activities are prohibited if they are proposed in areas identified as “hot spots” or exclusion zones within smalltooth sawfish critical habitat. These areas are designated in Table 8 and Figures 19-22 of the Biological Opinion.
If you have any additional questions regarding the recent Biological Opinion or concerns about compliance with its applicable PDCs, please contact Henderson Franklin’s Land Use & Environmental Law Division at (239)344-1100.