10 
(Eubalaena glacialis), humpback ( Megaptera novaeangliae ), fin ( Balaenoptera 
physalus), sei ( Balaenoptera borealis ) and sperm (Physter macrocephalas ) whales; 
and federally endangered shortnose sturgeon ( Acipenser brevirostrum). In this letter, 
NOAA Fisheries indicated to EPA that the revised dissolved oxygen criteria should 
be evaluated for effects on shortnose sturgeon survival, foraging, reproduction and 
distribution due to the lowering of dissolved oxygen criteria in the Chesapeake Bay. 
On December 20, 2002, EPA sent a letter to NOAA Fisheries requesting concurrence 
with EPA’s conclusion that the proposed criteria and refined designated uses would 
not adversely affect the listed species under NOAA Fisheries’jurisdiction. Included 
with this letter were a Biological Evaluation regarding the shortnose sturgeon and a 
copy of the draft criteria document. In a January 7, 2003 letter, NOAA Fisheries 
replied to EPA and indicated that it concurred with EPA’s conclusion as it applied to 
federally listed sea turtles and marine mammals but that NOAA Fisheries could not 
concur that the revised dissolved oxygen criteria would not adversely affect short¬ 
nose sturgeon. NOAA Fisheries provided several comments to EPA on the contents 
of the biological evaluation regarding the effects of the dissolved oxygen standards 
on shortnose sturgeon and indicated that EPA should revise the biological evaluation. 
Subsequent to receiving this letter, NOAA Fisheries and EPA staff communicated 
informally to revise the contents of the biological evaluation. 
In February 2003, several meetings and conference calls took place between EPA 
and NOAA Fisheries staff. Included in these meetings was a discussion as to how the 
formal consultation would be conducted. The complicating factor was that while 
EPA was issuing the Regional Criteria Guidance document as guidance to the states, 
the states were not obligated to adopt the criteria exactly as outlined in the Regional 
Criteria Guidance document. It was determined between EPA and NOAA Fisheries 
staff that a programmatic approach would be taken in developing an appropriate 
biological opinion. In this scenario, EPA would consult with NOAA Fisheries on the 
effects of issuing the guidance document to the states and District of Columbia since 
EPA would evaluate the States and District of Columbia’s revised water quality 
criteria in light of the Chesapeake Bay specific guidance. Then, when the states had 
developed their water quality standard regulations and submitted them to EPA, EPA 
would consult again with NOAA Fisheries on the effects of EPA approving the stan¬ 
dards proposed by the states. This type of programmatic consultation was 
particularly appropriate as the pollutant loads from each State and the District of 
Columbia mix in the Chesapeake Bay and the water quality in the Bay and its tidal 
tributaries would be a result of the combined pollutant loads from the various states 
and the District of Columbia. The consultation that is the subject of EPA’s final 
biological evaluation published April 25, 2003 and NOAA Fisheries final biological 
opinion dated April 16, 2004 serves as the first in a series of consultations that will 
take place between EPA and NOAA Fisheries on the effects of EPA’s issuing water 
quality criteria and approving water quality standards for the Chesapeake Bay and 
its tidal tributaries. 
chapter Hi 
Key Findings Published in the EPA ESA Shortnose Sturgeon Biological Evaluation 
