continued existence of the Chesapeake Bay population of shortnose sturgeon or the 
species as a whole (NOAA National Marine Fisheries Service 2004). 
INCIDENTAL TAKE STATEMENT 
Section 9 of the ESA and Federal regulations pursuant to section 4(d) of the ESA 
prohibit the take of endangered and threatened species, respectively. “Incidental 
take” is defined as take that is incidental to, and not the purpose of, the carrying out 
of an otherwise lawful activity (50 CFR 402.02). Under the terms of section 7(b)(4) 
and section 7(o)(2) of the ESA, taking that is incidental to and not intended as part 
of the agency action is not considered to be prohibited under the ESA provided that 
such taking is in compliance with the terms and conditions of this Incidental Take 
Statement. 
According to the EPA Ambient Water Quality Criteria for Dissolved Oxygen, Water 
Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries 
{Regional Criteria Guidance ), the goal of this program is that states will adopt water 
quality standards consistent with the Regional Criteria Guidance and further imple¬ 
ment those water quality standards so that nutrient and sediment load reductions will 
be achieved by 2010. At that time, EPA expects that the dissolved oxygen criteria 
will be met for all designated uses. This Incidental Take Statement accounts for take 
that will occur before the 2010 goals are met and after the goals are met. Unless 
NOAA Fisheries revokes, modifies or replaces this Incidental Take Statement, this 
Incidental Take Statement is valid for as long as the EPA’s guidance document 
remains in effect (NOAA National Marine Fisheries Service 2004). When the States 
and the District of Columbia seek EPA approval of their dissolved oxygen criteria, 
NOAA Fisheries will verify at that time that EPA's approval of the state water quality 
criteria will also be subject to this programmatic take statement. At that time, NOAA 
Fisheries may revise this Incidental Take Statement based on a particular State’s 
implementation plan, for example to include additional terms and conditions to mini¬ 
mize the likelihood of take. 
AMOUNT AND EXTENT OF TAKE ANTICIPATED 
The proposed action is reasonably certain to result in incidental take of shortnose 
sturgeon. NOAA Fisheries stated it is reasonably certain the incidental take 
described here will occur because (1) shortnose sturgeon are known to occur in the 
action area; and (2) shortnose sturgeon are known to be adversely affected by low 
dissolved oxygen levels as low dissolved oxygen levels cause them to avoid areas, 
increase surfacing behavior, and undergo metabolic changes. Based on the evalua¬ 
tion of the best available information on shortnose sturgeon and their use of the 
Chesapeake Bay, NOAA Fisheries has concluded that the issuance of the dissolved 
oxygen criteria for seasonal deep water, deep channel and open water aquatic life 
chapter iv 
Key Findings Published in the NOAA ESA Shortnose Sturgeon Biological Opinion 
