14 
sturgeon captured in the Chesapeake Bay may be part of the Delaware distinct popu¬ 
lation segment using the C & D Canal as a migratory passage. However, the NOAA 
National Marine Fisheries Service recommended that more studies utilizing nuclear 
DNA needed to be conducted before this can be proven conclusively. 
Section 9 of the Endangered Species Act and Federal regulations pursuant to section 
4(d) of the Endangered Species Act prohibit the take of endangered and threatened 
species, respectively, without special exemption. ‘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 NOAA National Marine Fisheries 
Service to include any act that 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 essential behavioral patterns including 
breeding, spawning, rearing, migrating, feeding, or sheltering. ‘Harass’ is defined by 
U.S. Fish and Wildlife Service as intentional or negligent actions that create the like¬ 
lihood of injury to listed species to such an extent as to significantly disrupt normal 
behavior patterns which include, but are not limited to, breeding, feeding or shel¬ 
tering. ‘Incidental take’ is defined as take that is incidental to, and not the purpose 
of, the carrying out of an otherwise lawful activity. 
The shortnose sturgeon recovery plan further 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 capture in other fisheries) as 
principal threats to the species’ survival (NOAA National Marine Fisheries Service 
1998). The recovery goal is identified as delisting shortnose sturgeon populations 
throughout their range, and the recovery objective is to ensure that a minimum popu¬ 
lation size is provided such that genetic diversity is maintained and extinction is 
avoided. 
Considering the nature of the Regional Criteria Guidance , the effects of the recom¬ 
mended criteria, and future cumulative effects in the evaluation area, the issuance of 
Regional Criteria Guidance was not likely to adversely affect the reproduction, 
numbers, and distribution of the Chesapeake Bay distinct population segment in a 
way that appreciably reduces their likelihood of survival and recovery in the wild. 
This contention was based on the following: (1) the adoption of the recommended 
dissolved oxygen criteria into state water quality standards and subsequent attain¬ 
ment upon achievement of the Chesapeake Bay watershed’s nutrient loading caps 
would provide for significant water quality improvements to the tributaries to the 
Chesapeake Bay (such as the Susquehanna, Gunpowder, and Rappahannock rivers) 
where the shortnose sturgeon would most likely spawn and spend their first year of 
life; (2) the main channel of the Chesapeake Bay most likely experienced reductions 
in dissolved oxygen before large-scale post-colonial land clearance took place, due 
to natural factors such as climate-driven variability in freshwater inflow; and 
(3) there was strong evidence that shortnose sturgeon have historically not used 
chapter iii 
Key Findings Published in the EPA ESA Shortnose Sturgeon Biological Evaluation 
