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Mitigating Shore Erosion Along Sheltered Coasts D Potential Federal Regulatory Requirements A shoreline protection activity that requires a Section 404 permit from the USACE/USEPA may potentially require additional federal permits. A short description of potential federal requirements follows. An individual permit application is subject to the provisions of the National Environmental Policy Act (NEPA) and may require preparation of an Environmental Impact Statement (EIS) (42 U.S.C. sec. 4332(2)(C)) or Environmental Assessment (EA) that the permit applicant finances and usually contracts to an environmental consultant. Preparation of an EIS may require a year while an EA may entail 3 months of effort and consultations. If the State has an approved Coastal Management Program under the Coastal Zone Management Act (33 C.F.R. sec. 320.4(h)), the USACE will not grant a CWA sec. 404 permit to a non-federal applicant until certification of consistency with the State Program exists. In this case, the applicant must certify in the federal application that the proposed shoreline protection activity complies with the enforceable policies of the State Coastal Management Program and is consistent with the Coastal Management Plan. The State should notify the federal agency regarding its concurrence with or objection to the certification. No federal permit can be granted if the State objects to the applicant’s certification, unless the Secretary of Commerce overrides the State’s objection (16 U.S.C. sec. 1456(c)(3)(A)). An additional requirement of the Clean Water Act must also be satisfied by the granting of a federal permit (33 U.S.C. sec. 1341(a)(1)). If the activity results in a discharge into navigable waters, the applicant must provide a Section
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Mitigating Shore Erosion Along Sheltered Coasts 401 Water Quality Certification that the discharge complies with state effluent standards and any other water quality standards of the CWA. The Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. secs. 662-667e) requires coordination between the Fish and Wildlife Service (FWS) and the State fish and wildlife agencies where waters are controlled or modified through a federal permit. The purpose of this coordination is to prevent loss of or damage to wildlife. Consultation occurs between the federal and state agencies concerning mitigation of project-related losses of fish and wildlife resources. The FWCA is administered through the FWS and the NOAA’s National Marine Fisheries Service. While some provisions of the Endangered Species Act (ESA) apply to individuals on their private property, other provisions are applicable to federal agencies and have a different geographical scope. ESA Section 7 requires that all federal agencies insure that their actions do not jeopardize the continued existence of listed endangered or threatened species (16 U.S.C. sec. 1536(a)(2)). Thus, federal permits for shoreline erosion construction projects may be “federal agency actions” that may require formal or informal consultation between the USACE and the FWS or NOAA Fisheries, depending on the listed species. Some of the listed species that may require review for shoreline erosion control projects appear in Table D-1. If the USACE determines after informal consultation that the proposed action is not likely to affect listed species or their critical habitat, and the FWS also agrees, then the review process terminates, and the permit is granted. However, if the FWS determines the proposed action may affect listed species and critical TABLE D-1 Species Requiring Review for Shoreline Erosion Control Projects Common Name of Listed Species Scientific Name of Listed Species Chinook salmon Oncorhynchus tshawytscha Sockeye salmon Oncorhynchus nerka Atlantic salmon Salmo salar Gulf sturgeon Acipenser oxyrinchus desotoi Shortnose sturgeon Acipenser brevirostrum Steelhead trout Oncorhynchus mykiss Green turtle Chelonia mydas Hawksbill turtle Eretmochelys imbricate Kemp’s ridley turtle Lepidochelys kempii Leatherback turtle Dermochelys coriacea Loggerhead turtle Caretta caretta Olive ridley turtle Lepidochelys olivacea West Indian manatee Trichechus manatus Johnson Eye seagrass Halophila johnsonii
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Mitigating Shore Erosion Along Sheltered Coasts habitat, then formal consultation begins, and the FWS/NOAA Fisheries must prepare a Biological Opinion that analyzes the effects of the action on the listed species and determines whether it will pose a threat of jeopardy to the continued existence of the species. The FWS’ Biological Opinion may suggest alternatives to the project that will not cause jeopardy. The federal permit requirement may also trigger compliance with the National Historic Preservation Act (NHPA) (16 U.S.C. sec. 470 et seq.). Section 106 of the NHPA requires that federal agency actions or permits consider their impact on any site or object that is included in or eligible for inclusion on the National Register of Historic Places (16 U.S.C. sec. 470f). The 1996 Sustainable Fisheries Act introduced several conservation concepts to U.S. fisheries management, including Essential Fish Habitat (EFH) (16 U.S.C. sec 1853a)(7)). Fishery Management Councils are required to identify the Essential Fish Habitat in their Fishery Management Plans. The provisions of this statute create an interagency consultation process (16 U.S.C. sec. 1855(b)(1)(D)) in which the agencies must consult with NOAA Fisheries regarding actions that they propose to fund, authorize, or undertake that may adversely impact the EFH (16 U.S.C. sec. 1855(b)(2)). NOAA then recommends actions that the responsible agency can adopt to conserve the EFH. However, the consulting agency is not required to follow NOAA’s recommendations.