2 Background

As described in the proposed federal rule , on January 14, 2009, EPA determined under CWA section 303(c)(4)(B) that new or revised water qu ality standards (WQS) in the form of numeric nutrient water quality criteria are necessary to me et the requirements of the CWA in the State of Florida. Florida’s currently applicable narrative nutrient criterion provide s, in part, that “in no

case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna,” Florida Administrative Code (F.A.C.) 62-302- 530(47)(b). EPA determined that Florida’s narrat ive nutrient criterion al one was insufficient to ensure protection of appli cable designated uses.

In August 2009, EPA also entered into a Consent Decree with Florida Wild life Federation, Sierra Club, Conservancy of Southwest Florida, Enviro nmental Confederation of Southwest Florida, and St. Johns Riverkeeper, committing to propose num eric nutrient criteria for lakes and flowing waters in Florida by January 14, 2010, and for Flor ida's estuarine and coastal waters by January 14, 2011. Under the Consent Decree, final rules will need to be issued by October 15, 2010 for lakes and flowing water. On June 7, 2010, EPA and Plaintiffs filed a join t notice with the Court extending the deadlines for promulgating numeric nutri ent criteria for Florida's estuaries, flowing waters in south Florida (including canals), a nd the downstream protectio n values for flowing

waters into estuaries. The new deadlines are November 14, 2011 for proposing the estuarine criteria, and August 15, 2012 for publishing a final ru le for these three categories. This will allow EPA time to have proposed criteria peer-r eviewed by the SAB. The original deadline of October 15, 2010 remains in place for EPA to fina lize numeric nutrient criteria for Florida's lakes and other flowing waters (streams a nd springs), outside of south Florida.

Current Federal Action

In accordance with the determination and EPA’ s Consent Decree, EPA has proposed numeric nutrient criteria for Florida’s lakes and flowing waters. EPA’s determination did not apply to Florida’s wetlands, and as a result, Florida’s wetlands will not be addressed in this rulemaking or in EPA’s forthcoming rulemaking involving estu aries and coastal wate rs. EPA’s Biological Evaluation addressed the January 14, 2010 proposed numeric nutrient criteria for lakes and flowing waters, and subsequent information provided in a supplemental Notice of Data Availability (NODA; 8/3/2010)

In developing these proposed numeric nutrient crit eria for rivers and streams, EPA also evaluated their effectiveness for assuring th e protection of downstream lake de signated uses pursuant to the provisions of 40 CFR 130.10(b), which requires that WQS must pr ovide for the attainment and maintenance of the WQS of downstream waters. For rivers and streams in Florida, EPA must ensure, to the extent that available science allows , that its nutrient criter ia take into account the impact of near-field nutrient loads on aquatic life in downstream lakes. Regarding numeric nutrient criteria for springs, EPA is proposing a nitrate-nitrite criterion for springs based on experimental laboratory data a nd field evaluations that docume nt the response of algae and periphyton to nitrate-nitrite concentrations.3 Additionally, EPA is including in this notice a proposed appro ach for deriving Federal sitespecific alternative crite ria (SSAC) based upon Stat e submissions of scientifically defensible recalculations that meet the requirements of CWA section 303(c). Total Maximum Daily Load (TMDL) targets submitted to EPA by the State fo r consideration as new or revised WQS could be reviewed under this SSAC process. Becau se SSAC will likely be adopted after the promulgation of the final nutrient criteria rule, the SSAC will be subject to future consultation on a site-specific basis as EPA approves the SSAC in the future.

Action Area

This action includes all the waters of the United States within the jurisd iction of the State of Florida. More specifically, th e criteria proposed in this rule making apply to lakes and flowing waters, including springs and canals in the State of Florida, with the exception of flowing waters in South Florida. EPA’s proposal defines “lak es and flowing waters” to mean inland surface

waters that have been classified as Class I (Potable Water Supplies) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well- Balanced Population of Fish and Wildlife) water bodies pursuant to Rule 62-302.400, F. A.C., excluding wetlands, and which are predominantly fresh waters.

The Clean Water Act defines waters of the United States as: (a) All waters which are currently used, were used in the past, or may be suscepti ble to use in interstate or foreign commerce, including all waters which are subject to ebb a nd flow of the tide; (b) All interstate waters, including interstate “wetlands;” (c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandf lats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natu ral ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign co mmerce including any such waters: (1) Which are or could be used by interstate or foreign travelers for recreational or other purposes; (2) From which

fish or shellfish could be taken and sold in interstate or foreig n commerce; (3) Which are used or could be used for industrial purposes by industr ies in interstate commerce; (d) All impoundments of waters otherwise defined as waters of the United States under this definition; (e) Tributaries of waters identified in paragraphs (a) through (d) of this definition; (f) The territorial sea; and (g) “Wetlands” adjacent to waters (other than wate rs that are themselves wetlands) identified in paragraphs (a) through (f) of this definition. [40 CFR § 122.2 Waters of the United States or waters of the U.S.]4 Action Agency Effect Determinations for Relevant Federally Listed Species and Critical

Habitats

Lakes

The following table summarizes the aquatic dependent listed species expected to be found in the lakes portion of the action area, EPA’s determin ation of effects from the action, and a brief explanation of why this determination was made.

Species in Action Area Determinatio n of Effects Reason for determination

West Indian manatee ABC
( Trichechus manatus ) NLAA Beneficial - enhance habitat; reduction in cyanobacteria blooms
Everglade snail kite BC
( Rostrhamus sociabilis plumbeus ) NLAA Discountable – effects extremely unlikely to occur

Whooping crane BC
( Grus americana ) NLAA Discountable – effects extremely unlikely to occur

Wood stork ABC
( Mycteria americana ) NLAA Discountable – effects extremely unlikely to occur

American crocodile C
( Crocodylus acutus ) NLAA Discountable – effects extremely unlikely to occur
A –Panhandle, B- North Florida, C- South Florida, NLAA-Not Likely to Adversely Affect

Springs

The following table summarizes the aquatic dependent listed species expected to be found in the springs portion of the action area, EPA’s determ ination of effects from the action, and a brief explanation of why this determination was made.

Species in Action Area Determinatio n of Effects Reason for determination

West Indian manatee ABC
( Trichechus manatus ) NLAA Beneficial – enhance habitat; reduction in cyanobacteria blooms
Everglade snail kite BC
( Rostrhamus sociabilis plumbeus ) NLAA Discountable – effects extremely unlikely to occur

Whooping crane BC
( Grus americana ) NLAA Discountable – effects extremely unlikely to occur

Wood stork ABC
( Mycteria americana ) NLAA Discountable – effects extremely unlikely to occur
A –Panhandle, B- North Florida, C- South Florida, NLAA-Not Likely to Adversely Affect5 Streams and Rivers

The following table summarizes the aquatic and a quatic dependent listed and candidate species expected to be found in the rive rs and streams portion of the acti on area, EPA’s determination of effects from the action, and a brief explanation of why this determination was made.

Species in Action Area Determinatio n of Effects Reason for determination

West Indian manatee ABC
( Trichechus manatus ) NLAA Beneficial - enhance habitat; reduction in cyanobacteria blooms
Everglade snail kite BC
( Rostrhamus sociabilis plumbeus ) NLAA Discountable – effects extremely unlikely to occur

Whooping crane BC
( Grus americana ) NLAA Discountable – effects extremely unlikely to occur

Wood stork ABC
( Mycteria americana ) NLAA Discountable – effects extremely unlikely to occur

American crocodile C
( Crocodylus acutus ) NLAA Discountable – effects extremely unlikely to occur
Gulf sturgeon AB
( Acipenser oxyrinchus

desotoi ) NLAA Beneficial – sensitive to poor water quality and low DO

Okaloosa darter A
( Etheostoma okaloosae ) NLAA Beneficial – water quality may affect competition with similar species
Shortnose sturgeon BE

( Acipenser brevirostrum ) NLAA Beneficial – sensitive to poor water quality and low DO Chipola slabshell mussel A

( Elliptio chipolaensis ) NLAA Beneficial – sensitive to poor water quality Fat threeridge mussel A

( Amblema neislerii ) NLAA Beneficial – sensitive to poor water quality

Gulf moccasinshell mussel A

( Medionidus penicillatus ) NLAA Beneficial – sensitive to poor water quality

Ochlockonee moccasinshell

mussel A

( Medionidus simpsonianus ) NLAA Beneficial – sensitive to poor water quality

Oval pigtoe mussel AB

( Pleurobema pyriforme ) NLAA Beneficial – sensitive to poor water quality Purple bankclimber mussel A

( Elliptoideus sloatianus ) NLAA Beneficial – sensitive to poor water quality Shinyrayed pocketbook mussel

A ( Lampsilis subangulata ) NLAA Beneficial – sensitive to poor water quality

Choctaw bean D

( Villosa choctawensis ) NLAA Beneficial – sensitive to poor water quality Round ebonyshell D

( Fusconaia rotulata ) NLAA Beneficial – sensitive to poor water quality Southern kidneyshell D

( Ptychobranchus jonesi ) NLAA Beneficial – sensitive to poor water quality6 The following table summarizes the aquatic and a quatic dependent listed and candidate species expected to be found in the rive rs and streams portion of the acti on area, EPA’s determination of effects from the action, and a brief explanation of why this determination was made.

Fuzzy pigtoe D

( Pleurobema strodeanum ) NLAA Beneficial – sensitive to poor water quality Narrow pigtoe D

( Fusconaia escambia ) NLAA Beneficial – sensitive to poor water quality Tapered pigtoe D

( Quincuncina burkei ) NLAA Beneficial – sensitive to poor water quality

Southern sandshell D

( Lampsilis australis ) NLAA Beneficial – sensitive to poor water quality A –Panhandle, B- North Florid a, C- South Florida, D-Candi date Species, E-Under the

Jurisdiction of the National Mari ne Fisheries Service, NLAA-Not Likely to Adversely Affect

Species-specific analyses of nutrient effects, An alysis of the species and critical habitat that may be affected (Supporting references found in Appendix A)

West Indian Manatee

The species recovery plan for the West Indian ma natee states that the sp ecies is “dependent upon

the health of its entire habitat” and that the ma natee’s presence or absence can often be a sign of the health of other species that share the same habitat (Service 1999). Numerous human activities, including eutrophication, have detrimen tal effects to manatees’ habitats, and therefore, on the health of manatee populations. The recove ry plan adds information from the Marine Mammal Commission’s 1991 report to congress saying that “S iltation, eutrophication, other forms of water pollution, ... degrade the coastal and riverine communities. This degradation reduces manatee food supplies and eliminates the secluded areas that are used by manatees to mate, calve, and nurse” (Service 1999). Increased nutrient inputs may also affect manatees by contributing to harmful algal blooms, such as Lyngbya sp. These species bloom when excess nutrients are available and out-compete native s eagrasses, such as those that are consumed by manatees. Additionally, the toxins produced by Lyngbya are associated with ulcerative dermatitis in manatees (Harr et al.2008). Reduc tion of nutrient inputs th rough numeric criteria could aid in decreasing the frequency or magnitude of Lyngbya blooms, which in turn would increase habitat for the manatee’s primary food source, and decrease manatee exposure to the cyanobacterial toxins. Whether reducing cyanoba cterial blooms or reve rsing degradation of coastal and riverine habitats, the reduction of nut rient loading in Florida waters would be wholly

beneficial to the West Indian manatee.

The EPA determined the proposed inland nutrient criter ia are “not likely to adversely affect” the

West Indian manatee. Based on our analysis (as discussed in Appendix B), the Service concurs

with EPAs determination. We will reconsider e ffects to this species during the development of the South Florida Region inland nutrient criteria and the statewide estuarine nutrient criteria.

EPA did not make an effect determination for ma natee critical habitat for the proposed numeric7 nutrient criteria in inland waters. There is no cr itical habitat for the West Indian manatee in lakes in Florida; therefore, none will be affected. Based on the available information (Appendix B), the Service believes that the propos ed nutrient rule “may affect, but is not likely to adversely

affect” West Indian manatee critic al habitat in Florida inland stream s or springs. This letter can be used as concurrence of that conclusion. We will reconsider effects to this species’ critical habitat during the de velopment of the South Florida Region in land nutrient criteria next year and the estuarine nutrient criteria (set for 2012).

Everglade snail kite

By implementing numerical nutrient criteria, nutrient levels within the waters of the Everglade

snail kite’s habitat should decr ease, which should allow for a gr eater abundance of the kite’s primary prey species. Excess nutrient supply near input sources has fac ilitated a shift from a marsh community dominated by sa wgrass to one that favors cattails. The native sawgrass communities provide suitable habitat for apple snails, which are the primary food source of the Everglade snail kite. Because increased nutrients allow for a community dominated by cattails, setting numeric nutrient criteria should aid in the re-estab lishment of sawgrass due to reduced nutrient input. Increasing sawg rass habitat, which provides ha bitat for apple snails, should increase the primary food source for the Everglad e snail kite. Any effects to the snail kite directly (not its food source) are discountable. Therefore, a decrease in nutrient loading from the implementation of numeric nutrient criteria in th e habitat of the Everglad e snail kite should not harm the species because of th e unlikelihood of adverse effects. The primary threat to the species is habitat loss or degrad ation, and nutrients would pose a discountable effect as compared to these primary threats.

EPA has determined that the proposed nutrient criteria will “not likely adversely affect” the Everglade snail kite. As a result of our anal ysis (Appendix B) and the antidegradation policy already in place to protec t low-nutrient waters ( i.e., lower than 40 ppb), and the existing phosphorus condition of other waterb odies utilized by kites (great er than 50 ppb), the Service concurs with EPA, that the proposed rule “may affect, but is not likely to adversely affect” the Everglade snail kite. The Service will reasse ss potential effects to this species during development of EPAs South Florid a Region’s inland nutrient criteria.

EPA did not make an effect determination for sna il kite critical habitat. However, based on the available information in Appendix B, the Service de termines that the proposed rule “may affect, but is not likely to adversely aff ect snail kite critical habitat.” This letter can be used as

concurrence of that determination. The Service will re-assess the effects to this species’ critical habitat when EPA develops their South Florida Region nutrient rule.

Whooping Crane

As documented in the Canadian Wildlife Service/FWS’s joint recovery plan for the whooping crane, the species’ primary threats include limite d genetics, collisions with power lines or other structures, loss and degradation of migration stopover habitat and coastal ecosystems, and threat of chemical spills in their pr imary wintering grounds (Canadia n Wildlife Service and Service8 2007). No information regarding di rect or indirect effects of nut rients on this species could be identified, thus the frequency of effects to w hooping cranes would be di scountable as compared to the primary threats to the species.

EPA determined the proposed numeric inland nutrie nt criteria “may affect, but are not likely to adversely affect” the whooping crane ( Grus americana ). Due to this species being an experimental, nonessential population in Florida, EPA is not required to consult under section 7(a)2 of the Endangered Species Act for the whooping crane.

Wood Stork

As described in the multi-species recovery plan for the wood stork, the major threat to this species is loss of habitat from the disruption of natural water flow in swamp areas of south Florida (Service 1997). No informa tion regarding direct or indirect effects of nutrients on this species could be identified, and thus the frequency of potential e ffects to wood stor k are expected to be negligible compared to the primary thr eats to the species. Wood stork are not directly affected by nutrient concentrations.

The EPA determined the proposed inland nutrient criteria “may affect, but are not likely to adversely affect” the wood stork. Based on our analysis, the Service concurs with EPAs determination (see Appendix C for further informa tion). We will reconsider effects to this species during the development of the South Florida Region inland nut rient criteria and the

statewide estuarine nutrient criteria.

American Crocodile

According to the recovery plan for the American crocodile, the major imp acts to the species are habitat degradation and fragment ation, changes in hydrologic conditi ons within their habitat, and mortality from both natural (cold, hurricanes) and anthropogenic (vehicle collisions) causes (Service 1999). No information regarding direct or indirect effects of nutrients on this species could be identified, thus the frequency of pot ential harm to American crocodiles would be discountable as compared to the primary threats to the species.

The EPA determined the proposed inland nutrient crit eria are “not likely to adversely affect” the

American crocodile. EPA has also deferred se tting nutrient criteria for the South Florida Region’s inland waters until after 2010. Therefore, because we do not expect crocodiles to be present in the area of the State co nsidered in this porti on of the rule, we concur that the proposed inland nutrient criteria “may affect but are not likely to adversel y affect” American crocodiles. We will reconsider effects to this species du ring the development of the South Florida Region

inland nutrient criteria and the statewide estuar ine nutrient criteria (see Appendix B for further information).9 Gulf Sturgeon

Effects from increased nutrient inputs in Florid a rivers and streams could have adverse impacts on Gulf sturgeon populations. The Federal Register listing status for the Gu lf sturgeon indicates that poor water quality may be a threat to th e species (50 CFR 17.49653). The State of Florida’s Conservation Plan for Gulf Sturgeon identifies similar threats to the species, stating that “Poor water quality, especially low levels of dissolved oxygen, has degraded shortnose sturgeon (and probably Gulf sturgeon) nursery grounds in many south-easter n coastal rivers” (Wakefield 2001). Eutrophication due to increased nutrient load ing can lead to diminished water quality and lowered dissolved oxygen levels, both of which may impact the species. The conservation plan calls for a reduction in nutrient loading in stur geon habitat where moderate to high levels of eutrophication still exist (Wakef ield 2001). Because the proposed numeric nutrient criteria

should aid in the reduction of nutrients in Fl orida’s rivers and str eams where gulf sturgeon reside, this reduction should decrease the areas of low dissolved oxygen, and thus result in a greater number of waterbodies in compliance with the dissolved oxygen criterion of 5 mg/L, which is protective of Gulf sturgeon. Nutrients at the concentrations proposed in the rule should not adversely affect the Gu lf sturgeon, as any effect s are likely beneficial.

The EPA determined the proposed inland nutrient criteria “may affect, but are not likely to adversely affect” the Gulf sturgeon. Based on our analysis, the Servic e concurs with EPAs

determination. We will reconsider effects to this species during the development of the

statewide estuarine nutrien t criteria (see Appendix B for further information).

Okaloosa Darter

Effects from increased nutrient i nputs into Florida rivers and st reams could have adverse impacts on Okaloosa darter populations. While sedimentation in streams appears to be the greatest threat to the species, the recovery pl an acknowledges that other wate r quality issues, including nonpoint discharges of nutrients, impact habitat of the Okaloosa darter. The plan calls for monitoring of water quality parameters, including nutrients, and mentions that delisting of the species will only occur after wate r quality has been improved. Another threat to the Okaloosa darter is competition with the brown darter, in which water quality may play a role (Service 1998). Because the proposed numeric nutrient criter ia should aid in the re duction of nutrients in

Florida’s rivers and st reams where Okaloosa darters reside , and thus should improve water quality, this should not have a de trimental effect on the species a nd any adverse effects are likely insignificant.

The EPA determined the proposed inland nutrient criteria “may affect, but are not likely to adversely affect” the Okaloosa darter

. Based on our analysis, the Service concurs with EPAs determination (see Appendix C for further information).10 Shortnose Sturgeon

The EPA determined the proposed inland nutrient criteria “may affect, but are not likely to adversely affect” the shortnose sturgeon. The s hortnose sturgeon determin ation will be analyzed by the National Marine Fisheries Service as it is under their re source jurisdiction.

Listed Mussels (Chipola slabshell mussel, fat threeridge mu ssel, Gulf moccasinshell mussel, Ocholckonee moccasinshell mussel, oval pigtoe mussel, pur ple bankclimber mussel, shinyrayed pocketbook mussel)

The recovery plan for the seven listed mussel spec ies indicates that the reduction of nutrients into streams will be beneficial to the species’ recove ry: “Reducing sediment, pesticide, and nutrient inputs to streams ... are some of the actions that will aid in the recovery of these species” (Service 2003). A study of freshwat er mussels (some of the listed FL species were included) in

the Flint River in southwest GA demonstrated that dissolved oxygen levels were highly correlated with mussel mortality in the field. Dissolved oxygen levels below 5 mg/L were associated with higher mortality for some species, while other species were more tolerant (Johnson et al. 2001). Even with the implementa tion of the proposed nutrient rule, the minimum level of dissolved oxygen of 5 mg/L specified in the State criteri on must still be upheld, and this criterion is protective of the numerous species analyzed by Johnson et al. (2001), which included listed mussel species. Because the proposed numeric nutrient criteria should aid in the reduction

of nutrients in Florida’s rivers and streams where the listed mussels reside, this should reduce the areas of low dissolved oxygen, and thus result in a greater number of waterbodies in compliance with the dissolved oxygen criterion of 5 mg/L. Nutrients at the concentrations proposed in the rule should not adversely affect the listed mussels, as any e ffects are likely beneficial.

The EPA determined the proposed inland nutrient criteria “may affect, but are not likely to adversely affect” listed freshwater mussel species of Florida

. Based on our analysis, the Service concurs with EPAs determination.(see Appendix C for further information).

Candidate Mussels (Choctaw bean, round ebonyshell, southern kidneys hell, fuzzy pigtoe, nar row pigtoe, tapered pigtoe, southern sandshell)

The Service document developed for listing the se ven candidate species of mussels in Florida

cited nutrients as one of the thre ats to survival of the species. The rivers in Florida where the candidate mussels reside (Escambia, Yellow, and Choctawhatchee) have been identified as having nutrient loading concerns (Service 2005). A study of fres hwater mussels (some of the listed FL species were included) in the Flint Ri ver in southwest GA demonstrated that dissolved oxygen levels were highly correlat ed with mussel mortality in the field. Dissolved oxygen levels below 5 mg/L were associated with higher mortal ity for some species, while other species were more tolerant (Johnson et al. 2001). Even with th e implementation of the proposed nutrient rule, the minimum level of dissolved oxygen of 5 mg/L specified in the State criterion must still be11 upheld, and this criterion is prot ective of the numerous species analyzed by Johnson et al. (2001), which included listed mussel species. Because the proposed numeric nutrient criteria should aid

in the reduction of nutrients in Florida’s rivers and streams where the candidate mussels reside,

this should reduce the areas of low dissolved oxygen, and thus result in a greater number of waterbodies in compliance with the dissolved oxygen criterion of 5 mg/L . Nutrients at the concentrations proposed in the rule should not adversely affect the candidate mussels, as any effects are likely beneficial. The EPA determin ed the proposed inland nutrient criteria “may affect, but are not likely to a dversely affect” candidate freshw ater mussel species of Florida

. Based on our analysis, the Serv ice concurs with EPAs dete rmination. (see Appendix C for further information).

Endangered Species Act Section 7 Consultation Summary

After reviewing the information provided by EPA (EPA’s August 2010 Biological Evaluation),

the current status of the above listed species and designated crit ical habitat, the environmental baseline as determined by water quality monitori ng data provided by the Florida Department of Environmental Protection, (FDEP) and the site-specific alternativ e criteria provision, the Service concurs with EPA’s determination of not likely to adversely affect for all listed species in Florida

and no adverse modification of thei r designated critical habitat.

Additional Comments

Like EPA, the Service appreciates that these assessments are complex and time-consuming and therefore, recommend that EPA continues to engage the Service in such consultations early in rule-makings and to coordinate the development of future Biological Ev aluations at least six months in advance of any final rule deadlines.

The Service recognizes that some water bodies that support listed species may not be enrolled in a water sampling program that adequately identifies either their nutrient status or level of nutrient impairment. This makes it difficult to assess the potential effects of proposed water quality

criteria if data are not availa ble. We recommend that EPA an d FDEP evaluate the need for expanding their water quality sampling network to fill in missing data gaps. Additionally, in

accordance with the successful im plementation of the State’s antidegradation policy, the Service recommends that EPA and FDEP verify what nutri ent data are available for water bodies that are utilized by listed species in Florida (covered under this consul tation). This is especially important for water bodies used by Everglad e snail kites for nesting and foraging.

The current Florida DEP antidegradation policy pr otects waters presently containing very low nutrient concentrations (less than 0.3 milligra ms per liter total nitrogen or less than 0.04 milligrams per liter total phosphorus) from becomi ng nutrient enriched. For those low-nutrient waters that support threatened and endangered species this mean s that nitrogen and phosphorus

concentrations should not be allowed to rise and adverse effects associated with nutrient enrichment should not occur. However, the proposed phosphorus criterion (0.05 milligrams per liter: colored lakes) is substantially higher than present phosphorus concentr ations in some of the low-nutrient waters, i.e., East Lake Tohopekaliga and Lake Weohyakapka. Without protections12 afforded by the State’s antidegradation policy, lo ng-term average phosphorus concentrations in these lakes could more than double. Therefore, to ensure continued protection of these waters from nutrient enrichment and potential adverse effects to threatened a nd endangered species, we

recommend that FDEP coordinate with the Service regarding future changes to their antidegradation policy and that EPA consult w ith the Service on the approval of any such changes.

Limited biological response data are available for the systems where these criteria will be employed. The biological responses to changes in nutrient concentrations need to be better understood. These data gaps should be filled duri ng the implementation of these new criteria so that careful adjustments can be made for each spec ific waterbody as needed. This will allow for the specificity that may be required for successful implementation of the numeric nutrient criteria approach.

We appreciate the opportunity to provide comments . Please contact Dr. J on M. Hemming of this office (ext. 238) if you have any questions or comments.

Sincerely,

/s/ Dr. Donald W. Imm

Dr. Donald W. Imm Project Leader

cc: Paul Souza, FWS, Vero Beach, FL Dave Hankla, FWS, Jacksonville, FL Cindy Dohner, FWS, Atlanta, GA Patrick Leonard, FWS, Atlanta, GA Dave Flemming, FWS, Atlanta, GA Janet Mizzi, FWS, Atlanta, GA Rick Sayers, FWS, Washington DC George Noguchi, FWS, Washington DC Bill Starkel, FWS, Atlanta, GA13 Appendix A - Literature Cited from EPA’s Biological Evaluation14 Canadian Wildlife Service and U.S. Fish and Wi ldlife Service. 2007. Intern ational recovery plan for the whooping crane. Ottawa: Recovery of Nationally Endangered Wildlife (RENEW),

and U.S. Fish and Wildlife Serv ice, Albuquerque, New Mexico. 162 pp.

Cerco CF. 1995. Response of Chesapeake Bay to nutrient load reductions. Journal of Environmental Engineering . 121(8):549-557.

Correll DL. 1998. The role of phosphorus in the eutrophication of receiving water: A review. Journal of Environmental Quality . 27:261-266.

Dodds WK, VH Smith, and B Zander. 1997. Devel oping Nutrient Targets to Control Benthic Chlorophyll Levels in Streams: A Case Study of the Clark Fork River. Water Resources

. 31(7):1738-1750.

FDEP. 2008a. Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update, p. 67.

FDEP. 2008b. Total Maximum Daily Load for Nu trients for the Lower St. Johns River. Tallahassee, FL.

Greening H, A Janicki. 2006. Toward reversal of eutrophic conditions in a subtropical estuary: Water quality and seagrass response to nitr ogen loading reductions in Tampa Bay, Florida, USA. Environmental Management . 38(2): 163-178.

Harr KE, NJ Szabo, M Cichra, EJ Philips. 2008. Debromoaplysiatoxin in Lyngbya -dominated mats on manatees ( Trichechus manatus latirostris ) in the Florida King’s Bay ecosystem.

Toxicon . 52:385-388.

Interland, Sebastian J. and Kilham, Susan S. 2001. Limiting resources and the regulation of diversity in phytoplankton communities . Ecology . 82(5):1270-1282.

Johnson PM, AE Liner, SW Golladay WK Mich ener. 2001. Effects of dr ought on freshwater mussels and instream habitat in Coastal Plain tributaries of the Flint River, southwest Georgia (July-October, 2000). Final Re port given to The Nature Conservancy Apalachicola River and Bay Project. 30 pp.

Livingston RJ. 2007. Phytoplankton bl oom effects on a gulf estuary: Water quality changes and biological response. Ecological Applications. 17(5):S110-S128.

Maier HR, MD Burch, M Bormans. 2001. Flow manageme nt strategies to cont rol blooms of the cyanobacterium, Anabaena circinalis , in the River Muarry at Morgan, South Australia. Regulated Rivers: Research and Management . 17(6):637-650.15 NOAA Fisheries. 1998. Recovery Plan for the Shortnose Sturgeon ( Acipenser brevirostrum ). Prepared by the Shortnose Sturgeon Recovery Team for the National Marine Fisheries Service, Silver Spring, Maryland. 104 pages.

NOAA Fisheries. 2003. Biological Opinion on Ambient Water Qua lity Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal

Tributaries F/NER/2003/00961.

Proulx M, FR Pick, A Mazumder, PB Hamilton, RS Lean. 1996. Experimental evidence for interactive impacts of human activities on lake algal species richness. Oikos . 76: 191-

195.

Shen J, T Wang, J Herman, P Mason, GL Arnol d. 2008. Hypoxia in a coasta l embayment of the Chesapeake Bay: A model diagnostic study of oxygen dynamics. Estuaries and Coasts. 31(4):652-663.

Stewart TW and RL Lowe. 2008. Benthic algae of Lake Erie (1865-2006): A review of assemblage composition, ecology, and causes an d consequences of changing abundance. Ohio Journal of Science . Vol. 108, no. 5, pp. 82-94.

US FWS. 1998. Okaloosa Darter ( Etheostoma okaloosae ) Recovery Plan (Revised). Atlanta, Georgia. 42 pp.

US FWS. 1999. South Florida Multi-Sp ecies Recovery Plan. Atlanta GA.

US FWS. 2003. Recovery Plan for Endangered Fat Threeridge ( Amblemaneislerii ), Shinyrayed Pocketbook ( Lampsilis subangulata ), Gulf Moccasinshell ( Medionidus penicillatus ), Ochlockonee Moccasinshell ( Medionidus simpsonianus ), and Oval Pigtoe ( Pleurobema pyriforme ); and Threatened Chipola Slabshell ( Elliptio chipolaensis ), and Purple Bankclimber ( Elliptoideus sloatianus ). Atlanta, Georgia. 142 pp.

US FWS. 2005. Species assessment and listing prior ity assignment form for 7 candidate mussel species. http://www.fws.gov/ecos/ajax/docs/candforms_pdf/r4/F030_I01.pdf

US FWS. 2006. Concurrence letter fo r Service Log No.: 4- 1-06-1-8749. http://fish.btstest.com/region4/verob each/images/pdfLibrary/BCWPA%20concur.pdf

Wakeford, A. 2001. State of Florida c onservation plan for gulf sturgeon ( Acipenser oxyrinchus

desotoi ). Florida Marine Research Institu te Technical Report TR-8. 100 pp.

Wetzel RG. 1975. Limnology . p. 520. W. B. Saunders Company, Philadelphia PA.16 Appendix B – South Florida Species and Critical Habitats17 September 26, 2010 These comments are provided from Steve Schubert (Fish and Wildlife Biol ogist; US FWS; South Florida Ecological Service Office; Vero Beach Flor ida) to the Panama City Ecological Services

Office in accordance with secti on 7 of the Endangered Species Ac t of 1973, as amended (87 Stat. 884; 16 U.S.C. 1531 et seq .).

Whooping Crane

EPA determined the proposed numeric inland nutrie nt criteria “may affect, but are not likely to adversely affect” the whooping crane ( Grus americana ). Due to this species being an experimental, nonessential population in Florida, EPA is not required to consult under section 7(a)2 of the Endangered Species Act for the whooping crane.

West Indian Manatee

The endangered West Indian manatee ( Trichechus manatus ) occurs in inland and coastal waters of peninsular Florida including estuaries, bays, rivers, creeks, springs, and canals (Service 2001) and may be found in all waters accessible to them. According to the Service’s (South Florida Ecological Services Office) geographic information system database, they have been observed within major inland freshwater waterways a nd canals, including Lake Okeechobee, the Kissimmee River ( i.e. , C-38 Canal), and the C-44 and C-43 Ca nals. As herbivores, manatees feed on a wide range of aquatic vegetation. Sh allow grass beds, with ready access to deep channels, are generally preferred feeding areas in coastal and rive rine habitats (Smith 1993). In coastal Georgia and northeastern Florida, manate es feed in salt marshes on smooth cordgrass ( Spartina alterniflora ) by timing feeding periods with high tide (Baugh et al. 1989; Zoodsma 1991). Manatees use springs and freshwater r unoff sites for drinking water; secluded canals, creeks, embayments, and lagoons for resting, cavorting, mating, calving, and nurturing their young; and open waterways and channels as trav el corridors. (Gannon, et al. 2007; Marine Mammal Commission 1986, 1988). Manatees occupy di fferent habitats during various times of the year, with a focus on warm-water sites duri ng winter. Manatees ha ve also adapted to changing ecosystems in Florida. Industrial wa rm-water discharges and deep-dredged areas are used as wintering sites, stormwater/freshwater discharges provide manatees with drinking water, and the imported exotic plant, Hydrilla sp. (which has replaced native aquatic plant species in some areas), has become an important food s ource at some wintering sites (Smith 1993).

Previous studies of the manatee in Florida refer to four relatively distinct regional “subpopulations”: an Atlantic Coast subpopulation that extends along the enti re east coast of Florida, into the St. Johns Rive r north of Palatka, and includes the Florida Keys; an Upper St. Johns River subpopulation that occu rs in the river south of Pala tka; a Northwest subpopulation

that extends from the Florida Panhandle sout h to the Pasco County line; and a Southwest subpopulation that extends from the Pasco Count y line south to Whitewater Bay in Monroe County. Each of these “subpopulations” is composed of individual manatees that tend to return

to the same warm-water sites each winter and ha ve similar non-winter distribution patterns. Exchange of individuals between these subpopulati ons is considered to be limited during winter months, based on data from telemetr y (Rathbun et al. 1990; Reid et al

. 1991; Weigle et al. 2001;18 Deutsch et al. 1998, and 2003) and photo-identification (Rathbun et al. 1990; Beck 2006; Higgs 2006). Exchanges between subpopulations occur during warm seasons and there are some documented cases of wide-ranging coastal moveme nts and isolated events of intercoastal migration (Reid et al. 1991; Deutsch et al. 1998 and 2003).

Although natural forage for the manatee has di minished in some locations due to human activities (including reductions in water quality, outright destruc tion of forage from coastal and riverine construction activities, waterborne recreational a nd commercial activities, etc

. ) and exotic forage has increased in other areas, the av ailability of forage is not known to be a limiting

factor for manatees at this time (Orth et al. 2006).

Data on manatee mortality in the southeastern United States have been collected since 1974 by the Manatee Carcass Salvage Program (O’Shea et al

. 1985; Ackerman et al

. 1995; Lightsey et al

. 2006). The primary human-related threats includ e watercraft-related st rikes (direct impact and/or propeller) which cause in jury or death (Rommel et al

. 2007; Lightsey et al

. 2006), entrapment and/or crushing in wate r control structures (gates, lock s, etc.), and entanglement in fishing lines, crab pot lines, etc

. Natural threats include exposure to cold and in coastal areas, red tide. Mortality associated with these natural threats is by cold stress syndrome and brevitoxicosis, respectively.

A significant habitat threat to the Florida manatee is the potential loss of warm water at natural, warm-water springs (Laist and Re ynolds 2005a, b). Natural springs are threatened by potential reductions in flow, worsening water quality, and by factors which affect manatee access and use of the springs (Florida Springs Task Force 2001). Total nitrate-nitrogen concentrations in some springs have increased significantl y from historic levels and are problematic (Florida Department of Environmental Protection [F DEP] 2005). Increased nutrient inputs may affect manatees by contributing to harmful algal blooms, such as Lyngbya sp. These species bloom when excess nutrients are available and out-compete native su bmerged aquatic vegetation, such as those that are consumed by manatees. Additionally, the toxins produced by Lyngbya sp. are associated with ulcerative dermatitis in manatees (Harr et al. 2008). Reduction of nutrient inputs through implementation of numeric nutrient criteria coul d aid in decreasing the frequency or magnitude

of Lyngbya sp. blooms, which in turn could increase habitat for the manat ee’s food source. The Service expects that nitrogen is the limiting nutrien t that controls aquatic plant growth in springs located within EPAs Peninsula Region. In th e three primary spring systems in Citrus County that manatees are best known for using (Crystal Spring, Homosassa Springs, and Chassahowitzka Spring) the total nitrate-nitrite concentrations range from 0.35 mg/l (equal to EPAs proposed standard) up to 2.60 mg/l (Southw est Florida Water Management District [SWFWMD] 2010). For nine water samples taken during 2005 (most recent data available) at Homosassa Springs, the total nitrate-nitr ite ranged from 0.41 mg/l to 0.55 mg/l (SWFWMD 2010). Our analysis indicates that EPAs proposed standard for total nitrate-nitrite in springs (0.35 mg/l) would seem to be eith er protective or restorative ( i.e., implementation of the proposed standard would reduce nitrogen con centrations and decrea se the frequency of Lyngbya sp. blooms) of nitrogen conditions for manatees in those springs.19 Additionally, the Service expects that phosphorus is the limiting nutrient in inland lakes and streams within EPAs Peninsula Region. Therefor e, we did not consider the proposed nitrogen

standard to be a factor in our effects analysis for manatees in lakes and streams (as we did for springs). The existing phosphorus conditions in these inland waterways are higher than the proposed phosphorus standard. For example, the proposed phosphorus standard for Lake Okeechobee is 50 ug/l (0.050 mg/l) (roughly equivalent to 50 parts per bill ion [ppb]) of total phosphorus, but the lake has averaged over 100 ppb (0.100 mg/l) of to tal phosphorus annually since 1996 (RECOVER 2010). Cons equently, the C-44 Canal (St. Lucie River) and C-43 Canal (Caloosahatchee River) receive high-phosphorus surface flows out of Lake Okeechobee. Therefore, the attainment of 50 ppb total phosph orus in the lake would also decrease the phosphorus concentrations in the C-44 and C-43 Cana ls and be protective or restorative of the existing phosphorus conditions for manatees in those waterbodies.

The EPA determined the proposed inland nutrient criteria “may affect, but are not likely to adversely affect” the West Indian manatee. Ba sed on the above information, the Service concurs

with EPAs determination. We will reconsider e ffects to this species during the development of the South Florida Region inland nutrient criteria and the statewide estuarine nutrient criteria.

West Indian Manatee Critical Habitat

Critical habitat was originally de signated for the Florida manat ee in 1976 in areas of Citrus, Hillsborough, Manatee, Sarasota, Charlotte, De Soto, Lee, Collier, Monroe, Dade, Palm Beach, Martin, West Palm Beach, Volusia, Brevard, Nassau and Duval counties (50 CFR Part 17.95(a); Figure 1 and Figure 2). That cr itical habitat designation was ma de before critical habitat regulations and guidance were deve loped. Therefore, it does not id entify those essential features needed for the species conservation. Instead, it describes specific waterways that were known to be important concentration areas for manatees at th at time. Service biologis ts also recognize that the geographic areas originally de scribed as manatee critical hab itat need to be updated, based on recent scientific studies of manatee distribution, ha bitat use, and habitat needs. Manatee critical habitat occurs mostly within th e coastal areas to be covered under EPAs 2012 estuarine nutrient criteria. However, there is one critical habita t area – the St. John’s Rive r – for which the inland nutrient criteria for EPAs Peninsula Region applie s. According to the Service’s (South Florida Ecological Services Office) geographic informa tion system database, manatees do not seem to occupy much of the freshwater portion of the St . Johns’ River watershed with the exception of Blue Spring (Volusia County; manatee synoptic data 1991- 2007). The long-term (15 years) median total nitrogen concentration for Blue Spring is 0.62 mg/l (N=82; St. John’s River Water Management District [SJRWMD] 2010a). Acco rding to the SJRWMD (2010b), “pollution in the St. John’s River has, at times, tr iggered algal blooms and subseque nt fish kills. The blooms are caused by nutrient-rich discharges. As a result, portions of the St . Johns River fail to meet state and federal water quality criteria.” The impl ementation of the proposed phosphorus standard was designed to eliminate algal blooms, and theref ore, should be either pr otective or restorative of phosphorus conditions of manat ee critical habitat in the fres hwater portion of the St. John’s

River.20 EPA did not make an effect determination for ma natee critical habitat for the proposed numeric

nutrient criteria in inland waters. There is no cr itical habitat for the West Indian manatee in lakes in Florida; therefore, none will be affected. Based on the available information, the Service believes that the proposed nutrient rule “may affe ct, but is not likely to adversely affect” West

Indian manatee critical habitat in Florida inland streams or springs. Should EPA choose to, this

letter can be used as concurrence of that conclu sion. We will reconsider effects to this species’ critical habitat during the development of the S outh Florida Region inland nutrient criteria next year and the estuarine nutrie nt criteria (set for 2012).

American Crocodile

Crocodiles occur along both coasts of southern Mexico and Central Amer ica, south to Ecuador on the Pacific coast, and Venezuela on the Atlantic coast of South America. They can also be found on the islands of Cuba, Jamaica, and Hisp aniola. The threatened American crocodile ( Crocodylus acutus ) reaches the northern end of its range in extreme South Florida (Figure 3). The American crocodile is found primarily in mangrove swamps and along low-energy mangrove-lined bays, creeks, and inland swamps. Natural nesting habitat includes sites with sandy shorelines or raised marl creek banks adjacent to deep water. During the non-nesting season, they are found primarily in the fresh and brackish-water inland swamps, creeks, and bays, retreating further into the back country in fall and winter . Although crocodiles occur in estuarine areas, they prefer lower sa linities except for nesting activities.

The original rule proposing this species’ list ing identified intensive human development and subsequent loss of habitat as a primary threat to crocodiles. Since lis ting, much of the nesting

habitat has remained intact and been afforded some form of protection. Construction and development within coastal areas continues to grow, and still poses a threat to remaining

crocodile habitat that is not protected.

The EPA determined the proposed inland nutrient crit eria are “not likely to adversely affect” the

American crocodile. EPA has also deferred se tting nutrient criteria for the South Florida Region’s inland waters until after 2010. Therefore, because we do not expect crocodiles to be present in the area of the State co nsidered in this porti on of the rule we concur that the proposed inland nutrient criteria “may affect but are not likely to adversely affect” American crocodiles. We will reconsider effects to this species du ring the development of the South Florida Region

inland nutrient criteria and the stat ewide estuarine nutrient criteria.

American Crocodile Critical Habitat

According to 41 FR 41914, September 24, 1976, this species’ critical habitat extends along the coast from Biscayne Bay on the Atlantic side of Florida to Cape Sable in Everglades National Park, and includes Florida Bay and portions of th e Upper Florida Keys (Figure 3). The inland

and estuarine nutrient criteria have not been set fo r this area and will be proposed as part of the 2011 South Florida Region’s standards and the 2012 statewide estuarine standards. EPA did not

make an effect determination for American croc odile critical habitat fo r their numeric nutrient21 criteria in inland waters. Because there is no Am erican crocodile critical habitat within EPAs Peninsula Region of the proposed nutrient rule, none will be affected. We will reconsider effects to this species’ critical habitat during the development of the South Florida Region inland

nutrient criteria and the statew ide estuarine nutrient criteria.

Everglade Snail Kite

The endangered Everglade snail kite ( Rostrhamus sociabilis plumbeus ) is one of three subspecies of snail kite, a wide-ranging New World raptor found primarily in lowland freshwater marshes in tropical and subtropical America fr om Florida, Cuba, and Mexico south to Argentina and Peru. The Everglade subspecies occurs in Florid a and Cuba, though only the Florida population is listed. The Florida population was first listed under the Endange red Species Preservation Act in 1967, and protection was continued under the En dangered Species Conservation Act of 1969. The Everglade snail kite, and all other species listed under the Endangered Species Conservation Act were the first species protected under the Endangered Species Act of 1973, as amended, and all of these species were gi ven the ‘endangered’ status.

Everglade snail kites are dietary specia lists, with the Florida apple snail ( Pomacea paludosa ) being the kite’s principal prey in Florida (S ykes 1987a; Kitchens et al. 2002). Under normal conditions, Everglade snail kites ar e nearly completely dependent on apple snails as prey. The close tie between the Everglade snail kite and th e Florida apple snail requ ires consideration of both species when developing management stra tegies and addressing potential impacts.

Everglade snail kites and apple snails are both wetland-dependent specie s that rely on wetland habitats for all aspects of their life history. The primary wetland habitat types upon which kites rely consist of freshwater ma rshes and the shallow vegetated littoral zones al ong the edges of lakes (natural and man-made) where apple snails occur in relatively high abundance and can be found and captured by kites. The current distributi on of the snail kite in Florida is limited to central and southern portions of the State. Six large freshwater systems are located within the current range of the snail kite: Upper St. J ohns marshes, Kissimmee Ch ain of Lakes, Lake Okeechobee, Loxahatchee Slough, the Everglades, and the Big Cypress basin (Beissinger and Takekawa 1983; Sykes 1984; Rodgers et al. 1988; Bennetts and Kitchens 1997; Rumbold and Mihalik 1994; Sykes et al. 1995). In the Kissimmee Chain of Lakes, snail kites may occur within most of the lakes and adjacent wetlands, with the majority of kite nesting occurring within Lake Kissimmee, Lake Tohopekaliga, and East Lake Tohopekaliga. Lake Okeechobee and surrounding wetlands historically su pported significant snail kite ne sting and foraging habitats. Most of the recent nesting in Lake Okeechobee ha s occurred within the expansive marsh in the southwestern portion of the lake and the area southwest of the inflow of the Kissimmee River (Martin et al. 2006).

In addition to the primary wetlands where most kite nesting has been documented, there are

numerous records of kite occu rrence and/or nesting within is olated wetlands throughout the region. The Savannas State Preserve, in St. Lucie County, the Hancock impoundment in Hendry County, and Lehigh Acres in Lee County are among th e smaller more isolated wetlands used by snail kites (Sykes et al. 1995). Takekawa and Beissinger (1989) identified numerous wetlands22 that they considered drought refugia which may provide kite foraging habitat when conditions in the larger more traditionally occupied wetlands ar e unsuitable. Although th e above list generally describes the current range of the species, radio tracking of snail kites has revealed that the network of habitats used by the species includes many smaller, widely dispersed wetlands within this overall range (Bennetts and Kitchens 1997). Snail kites may use nearly any wetland within

southern Florida under some conditions and dur ing some portions of their life history.

Studies of apple snail abundance and occurrence within traditional snail kite nesting areas also support conclusions that foraging conditions may be poor. Darby et al. (2005) reported that apple snail abundance has recently declined substantially within Water Conservation Area 3A. In 2005, Darby (2005a, 2005b) reported that apple sn ail abundance was relatively low in areas of

traditional snail kite use within Lake s Kissimmee, Tohopekaliga, and Okeechobee.

Snail kites use two visual foraging methods: co urse-hunting, while flying 5 to 33 feet (ft) above the water surface, or still-hunting from a perc h (Sykes 1987a; Sykes et al. 1995). Snails are captured with the feet at or below the surface, to a maximum reach of about 6 inches below the surface. Snail kites do not plunge into the wate r to capture snails and never use the bill to

capture prey.

While kites are capable of fo raging successfully under a variet y of habitat conditions, the preferred foraging habitat is typica lly a combination of relatively short-stature, sparse graminoid marsh vegetation less than 6.5 ft (2 meters) in he ight. The apple snail re quires emergent aquatic plants to provide substrate that allows them to reach the water surface to breathe and lay eggs. However, for kites to feed, the emergents must be sparse enough that they are capable of locating and capturing snails (Kitchens et al. 2002). Marshes and lake littoral zones composed of interdigitated areas of open water 0.6 to 4.3 ft deep which is relatively clear and calm and patches of herbaceous emergent wetland plants or sparse continuous growth of herbaceous wetland plants generally provide the appropriate balance of emergent vegetation and open water (Sykes et al. 1995; Kitchens et al. 2002). Periphyton growth on th e submerged substrate provides food source for apple snails, and submer gent aquatic plants su ch as bladderworts ( Utricularia spp.) and eelgrass ( Vallisneria spp) may contribute to favorable conditions for apple snails while not preventing kites from det ecting snails (Sykes et al. 1995). If these lakes become more eutrophic, the littoral zones may be come more overgrown with emergent plants and water lilies and algae blooms may result . Foraging habitat conditions that differ substantially from those described above will re sult in either reduced apple snail density or reduced ability of snail kites to locate and capture snails. Vegetation cover that is either too dense or too sparse can result in reduction in the quality of the area as foraging habitat.

The Everglade snail kite breeding season in Flor ida varies from year to year (from December through July) with the peak in nest initiation occurring from Fe bruary to April (Sykes 1987b). Adult kites generally attempt to breed every year with the exception of drought years when some kites may not attempt to nest (Sykes et al. 1995). Nesting almost always occurs over water, which deters predation (Sykes 1987c). Extens ive stands of contiguous woody vegetation are generally unsuitable for nesting a nd suitable nest sites consist of single trees or shrubs or small clumps of trees and shrubs within or adjacent to an extensive area of suitable foraging habitat.23 Nesting also can occur in herbaceous vegetation, such as sawgrass ( Cladium jamaicense ), cattail ( Typha sp.), bulrush ( Scirpus sp.), and reed ( Phragmites australis ) (Sykes et al. 1995).

Snail kites are considered nomadic, and this be havior pattern is probabl y a response to changing hydrologic conditions (Sykes 1979). During breeding season, kites remain close to their nest sites until they fledge young or fail. Following fledging, adults may remain around the nest for several weeks, but once young are fully independent adults may depart the area. Outside of the breeding season, snail kites regular ly travel long distances within and among wetland systems in southern Florida (Bennetts and Kitchens 1997). While most movements may be in response to droughts or other unfavorable c onditions, kites may also move away from wetlands when conditions appear favorable. Movements within large wetlands and movements among adjacent wetland units occurred frequently, while movement s among spatially isolated wetlands occurred less frequently (Martin et al. 2006). Fledgling kite s also move frequently, but are more likely to move to immediately adjacent wetland units th an adults, and this may indicate a degree of familiarity with the availability of wetlands across the landscape that adult kites acquire through experience.

Historic records of snail kite nesting include areas as far north as Crescent Lake and Lake

Panasoffke in north-central Florida and as far west as the Wakulla River (Howell 1932; Sykes 1984). Several authors (Nicholson 1926; Howell 1932; Bent 1937) i ndicated that the snail kite

was numerous in central and southern Florida marshes during the early 1900s, with groups of up to 100 birds. Reports of snail kite population declin es in the 1940s and 1950s suggested that as few as 6 to 100 individuals remained (Syke s 1979). Refined population estimates were generated for the Everglade snail kite using a mark-recapture method be ginning in 1997 (Dreitz et al. 2002). The population size estimate ge nerated from mark-recap ture estimates for 1997- 2000 (2,700 to 3,500 birds) was about 2 to 3 times higher than count-based estimates made in 1993 and 1995 (Bennetts and Kitchens 1997; Dreitz et al. 2002). From 1997 through 1999, the snail kite population was estimated to be a bout 3,000 birds (Dreitz et al. 2002). From 1999 through 2002, the population estimates declined each year until they reached a low level of about 1,400 birds in 2002 and 2003, then increased slightly to about 1,700 birds in 2004 and 2005 (Martin et al. 2006). The 2006 sn ail kite population si ze estimate was about 1,600 birds. In 2007, the estimate was 1,204 birds; in 2008 it was 685 birds; and in 2009, the estimate was 662 snail kites (Cattau et al. 2009).

The state-wide snail kite populat ion declined from 1999 to 2003, a nd may have been exacerbated by a regional drought that aff ected southern Florida during 2000 to 2001. During this period, nest success was generally low (M artin et al. 2006), and demographic parameters estimated from mark-recapture methods also indicated that juven ile survival rates were low, and even adult survival declined during 2001 (Mar tin et al. 2006). However, following the end of the drought

conditions in 2002 and a return to normal or wetter-than-normal hydr ologic conditions from 2002 to 2006 that generally provide favorable sna il kite nesting condition s, population estimates remained low, and nest success and juvenile surv ival rates also remain ed low (Martin et al. 2006).24 South Florida experienced another intense and widespread drought in 2007 covering the entire range of the Everglade snail kite. The majority (approxima tely 80%) of observed nesting occurred in the Kissimmee Chain of Lakes, es pecially Lake Tohopekaliga, with few nests observed in the WCAs, Lake Okeechobee, St. Johns Marsh, or Grassy Waters (Table 1). This apparent shift of the breeding population to the northern lakes suggests a level of adaptability and resilience in the population in response to the severe stress of the drought. Data from 2007 monitoring efforts indicated an ove rall lower number of active nest s but higher nest success than in previous years, with over 95 percent of successful nests occu rring in the Kissimmee Chain of Lakes. Two successful nests occurred in Lake Istokpoga, while no succes sful nesting occurred in the WCAs, Lake Okeechobee, or other monitored areas. In addition to potential effects of the drought on snail kites, it will also be interesting to observe how qui ckly apple snails can return after the drought to an abundance that will supp ort successful kite nes ting in Lake Okeechobee and the other major wetland complexes essential to the species.

There are a variety of th reats that have been identified whic h affect kite nesting, foraging, and

survival. These threats include loss of wetland habitats, degrada tion of wetland habitat, changes in hydrologic conditions, and impacts to prey base.

The principal threat to the snail kite is the loss or degradation of wetlands in central and southern Florida. Nearly half of the Everglades has been drained for agriculture and urban development (Davis and Ogden 1994). The Corps’ Centra l and South Florida Project encompasses 18,000 square-miles from Orlando to Florida Bay and includes about 994 miles each of canals and levees, 150 water control structur es, and 16 major pump stations. This system has disrupted the volume, timing, direction, and velocity of freshwater flow.

Degradation of water quality, particularly r unoff of phosphorus from agricultural and urban sources, is another concern for the snail kite. The Everglades was histor ically an oligotrophic system, but major portions have become eutroph ic, primarily due to an thropogenic sources of phosphorus and nitrogen (cultural eu trophication). Most of this increase has been attributed to non-point source runoff from agricultural lands north of Lake Okeechobee, in the Kissimmee River, Taylor Slough, and Nubbin Slough draina ges (Federico et al. 1981). Cultural eutrophication also is a concern in the Kissimmee Chain of Lakes. Nutrient enrichment leads to growth of dense stands of herbaceous emergent vegetation, floating vegetation (primarily water hyacinth [ Eichhornia crassipes ] and water lettuce [ Pistia stratiotes ]) and woody vegetation, which inhibits the ability of snail kites to forage along the shorelines of lake areas. Regulation of water stages in lakes and the WCAs is particularly important to maintain the balance of vegetative communities required to sustain snail kites.

There are no direct scientific inve stigations that we are aware of that directly re late effects of differing nutrient concentra tions to snail kites, snail kite ha bitat, apple snails, or apple snail habitat. However, there is a weight of evidence that indicates that most of these lakes receive nutrient inputs higher than normal and at levels which requires various governmental agencies to perform habitat management. These attempts to control, reduce and el iminate the spread of invasive and exotic species have also had negative effects on sna il kites. Rodgers et al. (2001)25 described a program to reduce impacts of aquati c plant management on snail kites. They found that the actions of several agencies in contro lling aquatic plants have caused nest collapse, particularly in herbaceous vegeta tion such as cattail and bulrush. They state that these impacts in Lake Okeechobee and the Kissimmee Chain of Lakes were reduced through cooperation and improved communication between agencies. In addi tion to the potential collapse of nests, the Service is concerned about any excessive applic ation of herbicides because this would reduce available habitat for apple snails. The Servic e has expanded on these coordination efforts to notify aquatic plant management groups during th e kite nesting season on the location of active snail kite nests (Service 2006) to assist them in avoiding or minimizing effects.

In 1996, Lake Kissimmee was drawn down because the shallow-water littoral habitat had slowly degraded over the years. Muck removal, burni ng, and discing occurred during an extreme draw down to restore productive aquatic habitat. In 2002, Lakes Tohopekaliga, Kissimmee, Hatchineha, Cypress, and Tiger were also dr awn down to improve habitat conditions in the lake’s littoral zones ( i.e., remove excess vegetation and organic muck sediments to allow for reestablishment of beneficial aquatic plants through aggressive post-drawdown herbicide application). For all these draw downs, the comb ination of excessive nu trients and non-natural water regulation schedules (promoting water s upply, flood protection, a nd navigation) was the cause of the problem. These lake draw downs usually last long enough to disrupt the kite foraging and/or nesting. In the case of Lake Kissimmee, the apple snail population took years to

recover.

Darby et al

. (1998) concluded that the apple snail population in Lake Kissimmee declined by 80 percent as a result of the 1996 dr awdown. Five years later, Darby (2001) found that the apple snails had not yet recovered to pre-drawdown le vels on Lake Kissimmee. Their results concern the Service because suboptimal levels of a prey species may have adverse effects on snail kites. Foraging efficiency may be lowered as snail kite s spend more time hunting for a lower density of prey species. Consequently, snail kite meta bolic reserves may be compromised which may negatively affect reproduction and juvenile survival. Darby and Percival (2000) have performed several studies to observe apple snail response to drawdowns. Telemetry indicates that during drawdowns, apple snails do not tend to move toward s deep-water refuge habitat. Instead, apple snails aestivate to minimize dehydrati on, metabolic loss, and predation.

Emergent plant control also occurs in Lakes Istokpoga, Tohopekaliga, and Kissimmee. In Lake Istokpoga, pickerelweed ( Pontederia cordata ) and cattail are mechanically removed or sprayed with herbicide. In the other two lakes, only herbicide is used. The plants are controlled because they are too dense in the littora l zone. As emergent plants in general become denser, kites cannot see the snails, and therefore, cannot forage there. As pickerelweed becomes even denser and forms mats, as in Lake Istokpoga, it becomes una vailable to even apple snails. All the major

lakes in the Kissimmee Chain of Lake s that supported snail kite nes ting or, at least, foraging this year with the exception of East Lake Tohopeka liga and Lake Weohyakapka , received herbicide spraying for Hydrilla sp. control. Past spraying for Hydrilla sp. in East Lake Tohopekaliga has been sparse, further supporting evidence that excess nutrients exacerbate Hydrilla sp. growth and cause agencies to enact management strategies that may adversely affect kites. As another example, there were 10 snail kite nests along the western side of Lake Istokpoga in 2008. Later26 that year, the Florida Fish and Wildlife Conservation Co mmission (FWC) removed dense emergent vegetation and performed Hydrilla sp. treatments. Snail kite nest initiation has been greatly reduced in that lake si nce then. The implementation of the proposed nutrient criteria

should reduce the future need for as intensive ma nagement activities and therefore, lessen the potential for adverse effects on snail kites. Fo r the same reason, the Serv ice is concerned that allowing waterbodies such as East Lake Tohope kaliga and Lake Weohyakapka to become more polluted with phosphorus will require new or more intensive management activities there and could adversely affect the snail kite.

Our analysis of effects for this species was based on the assumpti on that excess nutrients in kite lakes could have adverse effects on the species through habitat modification for either the kite directly or the kite’s primary prey, the apple snail. Increased phosphorus concentrations may affect snail kite habitat (cause overgrown littoral zones and/or algal blooms that inhibit the kite’s ability to forage on apple snails), and have indi rect effects on kites thr ough potential changes to apple snail abundance or other the floral and faunal commun ities (species diversity and abundance). Effects of water chemistry change s on apple snails are no t well understood. While

there is little or no literature investigating direct toxicity or other effects of phosphorus on apple snails, some studies suggest that snails ma y be affected by changes in dissolved oxygen, hardness, alkalinity and temperature.

The Kissimmee Chain of Lakes (particularly La ke Tohopekaliga, East Lake Tohopekaliga, and Lake Kissimmee) have been critical to the c ontinued reproduction and maintenance of the endangered Everglade snail kite over the last few years especial ly during drought years when the Greater Everglades system is dry. Due to its critically endangered status (less than 700 birds), it is important that we fully asse ss the effects of this proposed ru le, particularly on the Kissimmee Chain of Lakes. Today these lakes are used by a hi gh percentage of snail k ites on a yearly basis. Although it is recognized that other factors su ch as lake level, drought, hurricanes, water management, and other habitat management may al so affect snail kites, a proper evaluation of the proposed nutrient criteria and associated impacts on the species is still warranted. Total phosphorus and other water quality data were provided by staff fr om EPA, DEP, South Florida Water Management District (SFWMD), or SJRWMD, or were recovered from SFWMDs DBHydro water quality database (http://www.sfwmd.gov/portal/page/portal/xwe b%20environmental%20monitoring/dbhydro%20 application), or SWFWMDs Water Management Information System database (http://www8.swfwmd.state.fl.us/WMI S/ResourceData/ExtDefault.aspx).

Table 2 displays the total phosphorus data that were available to the Service for the major lakes that we presume or know are used by snail kites that are also pot entially affected by the proposed nutrient criteria in the Peninsula Region. Su ccessful snail kite ne sting during 2010 in the Kissimmee Chain of Lakes occurred only in Lake Tohopekaliga, East Lake Tohopekaliga, Lake Kissimmee, Lake Hatchineha, and Lake Jackson (Tab le 1). However, we anticipate that kites will forage in any of these lakes listed in Table 2 or other nearby water bodies. Data in Table 2 were limited for some lakes ( i.e., some data were over 15 years old, and as such may not represent current phosphorus condi tions in those waterbodies). For the lakes with robust phosphorus data, it appears that implementation of the proposed inland phosphorus standard (5027 ppb) would either maintain or impr ove the existing phosphorus status ( i.e., the long-term mean total phosphorus concentration) fo r 10 of these 12 lakes (including the three lakes in Table 2 that are not part of the Kissimmee Chai n of Lakes). For two lakes (E ast Lake Tohopekaliga and Lake Weohyakapka) it appears that the proposed rule would allow a doubling of the mean phosphorus in these lakes (East Lake Tohopekaliga = 21 ppb; Lake Weohyakapka = 23 ppb). The Service believes that allowing the aver age phosphorus concen tration to increase to EPAs proposed

standard in these two lakes could be considered an adverse effect on the species. However, the State of Florida has in place an antidegradation policy that would maintain the low-phosphorus condition that these, and possibly othe r nearby lakes, currently exhibit.

According to Florida State law (62-302.300 Findi ngs, Intent and Antidegradation Policy for Surface Water Quality; Part 13), th e Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the intro duction of man-induced nutri ents into waters of

the State. Particular consideration shall be given to the protection from further nutrient enrichment of waters which are presently high in nutrient concentrations or sensitive to further

nutrient concentrations and sensitiv e to further nutrient loadings. Also, particular consideration shall be given to the protection from nutrient enri chment of those presently containing very low nutrient concentrations: less than 0.3 milligrams per liter total nitrogen or less than 0.04 milligrams per liter total phosphor us” (http://www.dep.state.fl.us /legal/Rules/shared/62-302/62- 302.pdf)

Antidegradation reviews (public in terest reviews) in Florida ar e conducted by FDEP as part of any new permitting request for point source discha rges under EPAs National Pollutant Discharge Elimination System Program (Marks 2010). As part of this review process, basin loadings would be partitioned amongst both point and non-point sources for the water quality parameter being considered, and FDEP must consid er the effects to any federally listed threatened or endangered species (Marks 2010). This invol ves notification and coordination with the Service before any relaxation of water quality standa rds could occur. The phrase “ ...particular consideration shall be given...” in the above quote means, in part, that DEP will coordinate with the Service on federally listed species whenever there is a public interest re view (Marks 2010).

In the case of East Lake Tohopekaliga (whe re snail kites nest and forage) and Lake Weohyakapka (where we expect kites to occasio nally forage), the antidegradation policy would require the FDEP to consult with the Servi ce to determine if the permitting of additional phosphorus loading into those water bodi es would adversely affect kites.

EPA has determined that the proposed nutrient criteria will “not likely adversely affect” the Everglade snail kite. As a result of the antid egradation policy already in place to protect lownutrient waters ( i.e., lower than 40 ppb), and the existing phosphorus condition of other waterbodies utilized by kites (g reater than 50 ppb), the Service concurs with EPA, that the proposed rule “may affect, but is not likely to adversely affect” the Everglade snail kite. The Service will reassess potential effects to this sp ecies during development of EPAs South Florida Region’s inland nutrient standards.28 Everglade Snail Kite Critical Habitat

Critical habitat for the Ever glade snail kite was designa ted in 1977 (Service 1977). The designation identified nine units of critical habita t that included three small reservoirs, the littoral zone of Lake Okeechobee, and areas of Evergl ades’ marshes within the Water Conservation Areas and Everglades National Park. Of these, only the critical habitat within Lake Okeechobee

and the three reservoirs occurs within EPAs Peninsula Region for the proposed rule.

The three critical habitat waterbodi es occur in St. Lucie and Indian River Counties. They are St. John’s Reservoir, Cloud Lake Reservoir (also kn own as Minute Maid Reservoir) and Strazulla Reservoir (Figure 4). A determination has been made by FDEP that c onsiders the Strazulla Reservoir to be a wetland and therefore, not covered by the proposed nutrient rule. A determination has not yet been made for the other two reservoirs. There is some debate as to whether or not an artificial impoundment that is used primarily for citr us irrigation and flood control – which may dry out during drought conditi ons – is considered to be a “lake” under the proposed rule. Regardless, we have assumed the proposed rule to be in effect for these two

reservoirs and have considered th e nutrient status of both reservoi rs in our effects determination.

The 1,700-ac St. John’s Reservoir is managed for irrigation for local citrus grove interests. The reservoir is only a few feet deep and receives input from rainfall and irrigation water drained from the adjacent citrus groves. The water elev ation fluctuates greatly based on rainfall and pumping rates and the reservoir periodically dries in droughts (Miller 2010). It is also overgrown with water hyacinth ( Pistia stratiotes ). As a result of poor habitat, snail kites have not used this site for nesting in at least, th e last 10 years (Miller 2010). However, we would expect, given its proximity to sn ail kite nesting and foraging areas in the St John’s Marsh north of this reservoir, that sna il kites could occasionally forage in the reservoir depending on

conditions.

The average total phosphorus concentration in the outflow of the St John’s Reservoir was 265 ppb over the last seven years (2004 to 2010; N= 27) . Phosphorus data in the canal immediately downstream of the St John’s Reservoir (at the State Route 60 Bridge) where additional inflows from citrus groves mix, indicated a long term average of 177 ppb to tal phosphorus (2000-2010; N=119).

The critical habitat known as Cloud Lake Rese rvoir (640 acres) is sim ilar to the St. John’s Reservoir except that sn ail kites have been observed foragi ng in this reservoir in August and September 2006, and we therefore, ex pect that snail kites could forage in this reservoir in most years. This 5-feet deep reser voir was part of the larger Cloud Gr ove site which historically was part of the St. John’s Marsh and flowed north into the St. John’s River. The area was converted to citrus in the 1950’s and 1960’s (Glatting Jacks on Kercher Anglin Lopez Rhinehart, Inc. 2006) and now, due to construction of additional drainage feature, this area drai ns south into the C-25 Canal and the Indian River Lagoon at Fort Peirce, Florida. Excess stormwater from the groves is

routed into the reservoir where it is stored for irrigation. Water levels in the reservoir vary29 depending on the season and the irrigation or drainage needs of the grove. The SFWMD has acknowledged in their permitting process that the reservoir is “operated at the property owner’s discretion” (Glatting Jackson Kercher Anglin Lopez Rhinehart, Inc. 2006).

We do not have phosphorus data for Cloud Lake Re servoir, but we do have water quality data from a nearby location that is downstream of the reservoir. In the C-25 Canal upstream of the S99 Structure, the long term average phosphorus concentration from 1990 to 1996 (most recent data available; N=46) was 170 ppb (SFWMD 2010). It is reasonable to as sume that given the operation of the reservoir to service local c itrus groves (where phosphorus is applied as fertilizer), and the limited water quality data that we do have, that the concentration of phosphorus in the Cloud Lake Reservoir is grea ter than the proposed standard of 50 ppb.

As indicated previously, the nutri ent status of Lake Okeechobee is hypereutrophic (greater than 100 ppb). Therefore, implementation of the proposed nutrient standard should improve the

critical habitat conditions for the snail kite in Lake Okeechobee.

EPA did not make an effect determination for sna il kite critical habitat. However, based on the available information, the Service determines that the proposed rule “may affect, but is not likely to adversely affect snail kite cr itical habitat.” Shoul d EPA choose, this letter can be used as

concurrence of that determination. The Service will re-assess the effects to this species’ critical habitat when EPA develops their South Florida Region nutrient rule.30 Literature Cited

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Reid, J.P., G.B. Rathbun, and J.R. Wilcox. 1991. Distribution patte rns of individually identifiable West Indian manatees ( Trichechus manatus ) in Florida. Marine Mammal Science 7(2):180-190.33 Restoration Coordiniation and Ve rifcation. 2010. Comprehensive Everglades Restoration Plan 2009 Draft System Status Report. Figure 3-10; pg 3-12. February. Available at: http://www.evergladesplan.org/pm /recover/assess_team_ssr_2009.aspx

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Plant Control with Protection of Snail Kite Ne sts in Florida. Environmental Management 28(1):31-37.

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Bulletin 91:495-511.34 Sykes, P.W., Jr. 1984. The range of the snail kite and its history in Florida. Bulletin, Florida State Museum, Biologica l Sciences 29:211-264.

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Sykes, P.W., Jr. 1987b. Some asp ects of the breeding biology of th e snail kite in Florida. Journal Field Ornithology 58:171-189.

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the snail kite in Florida: lessons in critical habitat. Conservation Biology 3:302-311.

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Weigle, B.L., I.E. Wright, M. Ross, and R.O. Flamm. 2001. Movements of radio-tagged manatees in Tampa Bay and along Florid a’s west coast, 1991-1996. Florida Marine Research Institute Technical Report TR-7. St. Petersburg, Florida 156 pp.

Zoodsma, B.J. 1991. Distribution and behavioral ecology of manatees in southeastern Georgia. MS Thesis. University of Florid a. Gainesville, Florida. 202 pp.Table 1. Number of successful snail kite nests by water body, 1996 through 2010 (note: 2010 data are incomplete).

Regions 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

East Lake Tohopekaliga - - - - - 0 2 0 0 0 1 1 4 1 2

Lake Tohopekaliga 4 5 0 1 2 4 12 4 0 12 5 42 28 15 11

Lake Hatchineha 000000000000 0 1 3

Lake Jackson 000000000000 0 1 1

Lake Kissimmee 0 1 1 12 0 9 3 7 4 1 0 2 1 2 1

Lake Istokpoga - - - - - - - - -402 6 1 1

Lake Okeechobee 15 0 4 0 0 0 0 1 3 3 7 0 0 0 2

St. Johns Marsh 751210033220 0 0 1

West Palm/ Grassy Waters 0 0 0 0 0 0 0 1 0 1 0 0 0 0 3

WCA 1 -05 - - -0 -0000 0 0 0

WCA 2A 000000000000 0 0 0

WCA 2B 1 5 53 0 0 0 4 3 11 0 0 0 0 0 0

WCA 3A 35 140 84 14 33 0 24 28 19 0 11 0 0 0 0

WCA 3B 0 0 2 3 15 0 3 0 3 0 3 0 0 0 4

Everglades National Park 4 0 0 0 6 0 0 0 0 0 13 0 0 3 0

Others 6043 - - - - - -00 0 0 3

Total 72 156 154 35 57 13 48 47 43 23 42 47 39 24 32

3536 Table 2. Total phosphorus concentrations for va rious lakes within the Kissimmee Chain of Lakes, and Lake Arbuckle, Lake Is tokpoga, and Lake Okeechobee, Florida.

Minimum (ppb) Mean (ppb) Maximum (ppb) N Data Years

Lake Hart 21 25 31 4 1993-1994

East Lake Tohopekaliga 13 21 32 119 2000-2009
Lake Tohopekaliga 19 52 131 318 2000-2009
Lake Myrtle 27 60 101 54 2006-2010

Lake Lizzie 16 17 19 2 1993-1994
Alligator Lake 10 15 32 6 1993-1994
Lake Gentry 12 12 12 1 1994
Lake Cypress 35 75 127 96 2000-2009

Lake Hatchineha 31 60 160 208 2000-2009
Lake Weohyakapka 9 23 62 222 2000-2009
Lake Tiger 31 83 262 28 2000-2009

Lake Marian 49 132 346 48 2000-2009

Lake Jackson 67 86 100 5 2004-2006

Lake Kissimmee 29 59 159 214 2000-2009

Lake Arbuckle 37 73 231 100 2000-2009
Lake Istokpoga 43 82 208 320 2000-2009

Lake Okeechobee 15 135 552 2984 2000-2009Figure 1. West Indian manatee cr itical habitat in the northern half of Florida overlain on the various regions for EPAs statewide nutrient rule.

37Figure 2. West Indian manatee cr itical habitat in the southern half of Florida overlain on the various regions for EPAs statewide nutrient rule.

38Figure 3. American crocodile range and critical habitat in Florid a overlain on the various regions

for EPAs statewide nutrient rule.

39Figure 4. Everglade snail kite ne sting and critical habitat in Florida overlain on the various regions for EPAs statewide nutrient rule.

40Figure 5. Phosphorus concentrations in the Kissimm ee Chain of Lakes. The five lakes in which

snail kites nested in 2010 ar e designated with a dot.

4142 Appendix C – Florida Panhandle Sp ecies and Critical Habitats43 Florida Panhandle

Florida panhandle waters that pr ovide habitat for federally protec ted species or are designated as Critical Habitat for such species were evaluated by the Panama C ity Field Office of the Fish and Wildlife Service (Service). Two Florida “Regions” were include d, panhandle west and panhandle east as per EPA’s State segregation for ecoregional specificity. For each individual watershed segment with listed species, the propos ed nutrient criteria were compared to existing available total nitrogen, total phosphorus, a nd chlorophyll data prov ided by the Florida Department of Environmental Protection (STORET, 2000-2010). In no cases were the differences between the existing data and the propos ed criteria expected to increase or decrease system loading to the point where it would be exp ected to negatively affect listed species or their habitats. However, limited biolog ical response data are available a nd these data gaps need to be filled during the implementation of these new criteria so that careful adjustments can be made for each specific waterbody as needed. See conservation recommendations.

Gulf Sturgeon

The Gulf sturgeon ( Acipenser oxyrinchus (= oxyrhynchus ) desotoi ), also known as the Gulf of Mexico sturgeon, is an anadromous fish (breedin g in freshwater after migrating up rivers from marine and estuarine environments), inhabiting co astal rivers from Louisiana to Florida during the warmer months and over wintering in estuaries, bays, and the Gulf of Mexico. It is a nearly cylindrical primitive fish embedded with bony plat es or scutes. The head ends in a hard, extended snout; the mouth is inferior and prot rusible and is preceded by four conspicuous barbels. The caudal fin (tail) is heterocercal (upper lobe is longer than the lower lobe). Adults range from 1.2 to 2.4 m (4 to 8 ft) in length, with adult females larger than males. The Gulf sturgeon is distinguished from the geographi cally disjunct Atlantic coast subspecies ( A. o. oxyrinchus ) by its longer head, pectoral fins, a nd spleen (Vladykov 1955; Wooley 1985). King et al. (2001) have documented substantial dive rgence between A. o. oxyrinchus and A. o. desotoi using microsatellite DNA testing.

The Service and NOAA Fisheries jointly designated Gulf sturgeon critical habitat on April 18, 2003 (68 FR 13370, March 19, 2003). Gulf sturgeon cri tical habitat includes areas within the major river systems that support the seven curr ently reproducing subpopula tions and associated

estuarine and marine ha bitats (Figure 6). Gulf sturgeon use rivers for spawning, larval and juvenile feeding, adult resting a nd staging, and moving between the areas that support these life history components. Gulf stur geon use the lower riverine, estu arine, and marine environment during winter months primarily for feeding a nd, more rarely, for inter-river movements.Figure 6. Critical habitat for Gulf sturgeon in the Florida panhandle.

Critical habitat determinations focus on thos e physical and biologica l features (primary constituent elements [PCEs]) that are essentia l to the conservation of the species (50 CFR 424.12). Federal agencies must insure that thei r activities are not likel y to result in the

destruction or adverse modificatio n of designated critical habitats . Therefore, proposed actions that may affect designated critical habitat require an analysis of potential impacts to the PCEs. For the purposes of this assessment (fresh waters), Gulf sturgeon critical habitat must possess an abundance of food items, such as detritus, aquati c insects, worms, and/or mollusks, within

riverine habitats for larval a nd juvenile life stages. Riverine spawning sites with substrates suitable for egg deposition and development, su ch as limestone outcrops and cut limestone banks, bedrock, large gravel or cobble beds, marl, soapstone, or hard clay must also remain clear and available. Overall, wate r quality must be maintained to support normal behavior, growth, and viability of all life stages. Likewise, sedime nt quality, including texture and other chemical characteristics, must provide for normal behavior, growth, and viability of all life stages.

44 Nutrient data for the riverine portions of Gulf sturgeon critical habitat were reviewed relative to the chlorophyll bio tic endpoint data and qualita tive trophic status information. In no cases were the differences between the existing nutrient data and the proposed criteria expected to increase or decrease system loading to the point where it would be expected to negatively affect Gulf45 sturgeon or their habitat. However, limited biological response data are available for such

determinations. More data is required to fully assess th e relationship between nutrient concentrations and primary constituent elements of Gulf sturgeon critical habitat. Through the acquisition of these data during th e implementation of these new criteria, careful adjustments can be made for each specific waterbody as needed.

Okaloosa Darter

The Okaloosa darter, Etheostoma okaloosae, is a small percid fish (maximum size 49 millimeters Standard Length) with a well-developed humeral s pot, a series of five to eight rows of small spots along the sides of the body, and a first anal spine longer than the second. General body coloration varies from red-brown to green-y ellow dorsally, and light er ventrally, although breeding males have a bright orange submargi nal stripe on the first dorsal fin (Burkhead et al

. 1992). The brown darter, Etheostoma edwini , is similar in size, but th e blotched patterns on the sides are not organized into rows and breeding ma les have bright red spot s on the body and fins.

The Service listed the Okaloosa darter as enda ngered on June 4, 1973 (38 FR 14678). No critical habitat has been designated for this species.

The Okaloosa darter was initially listed because of its extremely limited range and potential problems resulting from erosion, water impoundme nt, and competition with introduced brown darters (Figure 7). The areas inhabited by the Okaloosa darter are typically the margins of flowing streams where detritus, root mats, and ve getation are present. Densities average about one darter in every 0.45 meters of stream lengt h (Jordan and Jelks 2005). Okaloosa darters have rarely been collected in areas where there is no current or open, sandy areas in the middle of stream channels. Brown darters also occupy sim ilar stream margins; howe ver, they are capable of living in areas of little to no flow (Burkhead et al. 1994). Okaloosa darters feed primarily on fly, mayfly, and caddis fly larvae (Ogilvie 1980). The breeding season extends from late March through October, although it usually peaks in Ap ril. Spawning pairs have been videographed attaching one or two eggs to ve getation, and they also have been observed attaching eggs to woody debris and root mats (Burkhead et al. 1994; Collette and Yerger 1962). Ogilvie (1980)

found a mean of 76 ova and 29 matu re ova in 201 female Okaloosa darters. These numbers may under-represent annual fecundity as the prolonged spawning season is an indication of fractional spawning (i.e., eggs develop and mature th roughout the spawning season). Estimates of longevity range from two to three years (Burkhead et al. 1992; Mettee and Crittenden 1979; Ogilvie 1980).Figure 7. Okaloosa darter habi tat in the Florida panhandle.

The food sources in darter streams could be influe nced by shifts in nutrient concentrations that could either provide for too much or too little pr oductivity leading to a ch ange in the diversity

and abundance of available inve rtebrate prey species. Su fficient changes in nutrient

concentrations could lead to altered stream flow s via an increase in vegetation or algal cover, conversely it is less like likely nutrients would be insufficient to provide for natural growth within these groundwater fed system s. In reviewing the available habitat, the low nutrient status of Okaloosa darter streams may be key to ensu ring sufficient flow and food resources for the Okaloosa dater. In these small groundwater fed watersheds, low nutrients are expected to be prevalent. A nutrient monitoring program that include both benthic macroinvertebrate and phytoplankton response endpoints would be esse ntial for these stre ams for use in the development of the Site-Specific Alternative Crite ria to ensure that the natural nutrient balance for these unique systems be maintained.

4647 Listed and Candidate Freshwater Mussels Species

Freshwater mussels are bivalve mollusks (clams ) of the family Unionidae. Unionid mussels generally live embedded in the bo ttom of rivers, streams, and othe r bodies of water. They siphon water into their shells and across four gills that are specialized for respiration and food

collection. Known food items include detritus (disintegrated organic debris), diatoms, phytoplankton, zooplankton, and other microorganisms (Coker et al. 1921; Churchill and Lewis 1924; Fuller 1974). Adults are filter feeders and generally orient themselves on or near the substrate surface to take food and oxygen from the water above them (Kraemer 1979). Juveniles typically burrow completely beneath the substr ate surface and are pedal (foot) feeders (bringing food particles that adhere to the foot while it is extended outsi de the shell, inside the shell for ingestion) until the structures for filter feedi ng are more fully developed (Gatenby et al. 1997; Yeager et al. 1994).

On November 15, 2007, the Service de signated critical habitat in the eastern panhandle for seven federally listed freshwater mussel species (Figur e 8), however candidate species do occur in the rivers systems in the western panhandle as we ll (Escambia and Choctawhatchee River systems). Each of the designated critical habitat units for these seven listed mussels contains one or more of the primary constituent elements (PCEs) th at the Service describes as essential to the conservation of the species, and which may requi re special management considerations or protection. The PCEs pertinent to this assessment involve ensuri ng adequate water quality to meet or exceed the current aquatic life criteria established under the Clean Water Act (33 U.S.C. 1251-1387). Essentially, water quality must be ma intained to support normal behavior, growth, and viability of all freshwater mussel life stages, as well as their fish th at support larval life stages of the mussels.Figure 8. Critical habitat for listed freshwater mussels species in the Florida panhandle.

Nutrient data for the riverine portions of freshw ater mussel critical habitat were reviewed relative to the chlorophyll biotic endpoint data and qual itative trophic status information. In no cases were the differences between the existing nutrien t data and the proposed criteria expected to increase or decrease system loading to the point where it would be expected to negatively affect freshwater mussel species or the su itability of their designated critical habitat. However, limited biological response data are availa ble for such determinations. More data is required to fully assess the relationship between nut rient concentrations and prim ary constituent elements of

freshwater mussel critical habitat. Thr ough the acquisition of these data during the implementation of these new criteria careful adjustments can be made for each specific waterbody as needed.

4849 Literature Cited

Burkhead, N.M., J.D. Williams, and R.W. Yerger. 1992. Okaloosa darter, Etheostoma

okaloosae , p. 23-30 In C. R. Gilbert [ed.] Rare and endangered biota of Florida. Volume III. Fishes. University Presses of Florida, Gainesville.

Burkhead, N.M., H.L. Jelks, F. Jordan, D. C. Weaver, and J.D. Williams. 1994. The comparative ecology of Okaloosa ( Etheostoma okaloosae ) and brown darters (E. edwini) in Boggy and Rocky Bayou stream systems, Choc tawhatchee Bay, Florida. Final Report to Eglin Air Force Base. 90 p.

Churchill, E.P., Jr., and S.I. Lewis. 1924. Food a nd feeding in freshwater mussels. Bulletin of

the Bureau of Fisheries 39:439-471.

Collette, B.B., and R.W. Yerger. 1962. Th e American percid fishes of the subgenus Villora

. Tulane Studies in Zoology 9:213-230.

Coker, R.E., A.F. Shira, H.W. Clark, and A. D. Howard. 1921. Natural history and propagation

of freshwater mussels. Bulletin of th e U.S. Bureau of Fisheries 37:77-181.

Fuller, S.L.H. 1974. Clams and mussels (Mollus ca: Bivalvia). Pages 215-273 in: C.W. Hart and S.L.H. Fuller, editors, Pollution ecology of freshwater invert ebrates. Academic Press, New York.

Gatenby, C.M., B.C. Parker, and R.J. Neves. 1997. Growth and survival of juvenile rainbow mussels, Villosa iris (Lea, 1829) (Bivalvia: Unionid ae), reared on algal diets and sediment. American Malacological Bulletin 14(1):57-66.

Jordan, F., and H.L. Jelks. 2005. Population mo nitoring of the endangere d Okaloosa darter. Annual report to Eglin Air Force Base. 38 p.

King, T. L., B. A. Lubinski, and A. P. Spidle . 2001. Microsatellite DNA variation in Atlantic sturgeon ( Acipsenser oxyrhynchus oxyrinchus ) and cross-species amplification in the Acipenseridae. Conservation Genetics 2:103-119.

Kraemer, L.R. 1979. Corbicula (Biv alvia: Sphaeriacea) vs. i ndigenous mussels (Bivalvia: Unionacea) in U.S. rivers: a hard case for in terspecific competition? American Zoologist

19:1085-1096.

Mettee, M.F. and E. Crittenden. 1979. A study on the distribution of Etheostoma okaloosae (Fowler) and Etheostoma edwini (Hubbs and Cannon) in Swift and Rocky Creeks, Okaloosa and Walton Counties, Florida, during 1975-78. U.S. Fish and Wildlife Service Report 14-14-004-78-002. 101 p.50 Ogilvie, V.E. 1980. Unpublished Florida Game and Freshwater Fish Commission Endangered Wildlife Project E-1. Annual Progress Re port. Tallahassee, Florida. 19 p.

Vladykov, V.D. 1955. A comparison of Atlantic sea sturgeon with a new subspecies from the Gulf of Mexico ( Acipenser oxyrhynchus desotoi ). Journal Fish Research Board Canada 12(5):754-761. Wooley, C.M . 1985. Evaluation of morphometric characters used in taxonomic separation of Gulf of Mexico sturgeon, Acipenser oxyrhynchus desotoi , pp. 97-103 In North American Sturgeon, Vol. 6., Developments in Environm ental Biology of Fishes, edited by D.W.F. Binkowsi and S. I. Doroshov, Junk Publishing, The Netherlands.

Yeager, M.M., D.S. Cherry, and R.J. Neves. 1994. Feeding and burrowing behaviors of juvenile rainbow mussels, Villosa iris (Bivalvia: Unionidae). Jour nal of the North American Benthological Society 13(2):217-222.51 Appendix D – North Fl orida- Wood Stork52 Wood Stork

The wood stork is a large, long-le gged wading bird. The species us es a variety of freshwater and estuarine wetlands for nesting, feeding, and roosting. Throughout its range in the southeastern United States, the wood stork are dependent upo n wetlands for breeding and foraging. Wood storks feed almost entirely on fish between 2 and 25 cm (1 and 10 in) in length (Kahl 1964, pp.107-108; Ogden et al. 1976, pp. 325- 327). They also occasionally consume crustaceans, amphibians, reptiles, mammals, birds, and arthropods. Fish populations reach high numbers during the wet season, but become concentrated in increasingly restricted habitats as drying

occurs. Consumers such as the wood stork are ab le to exploit high concen trations of fish in drying ponds and sloughs.

As described in the multi-species recovery plan for the wood stork, the major threat to this species is loss of habitat from the disruption of natural water flow in swamp areas of south Florida (Service 1997). No informa tion regarding direct or indirect effects of nutrients on this species could be identified, and thus the frequency of potential e ffects to wood stor k are expected to be negligible compared to the primary threat s to the species. Wood st ork are not expected to be directly affected by nutrient concentrations.

Literature Cited

Kahl, M.P., Jr. 1964. Food ecology of the Wood Stork ( Mycteria americana ). Ecological Monographs 34:97-117.

Ogden, J.C., J.A. Kushlan, and J.T. Tilmant. 1976. Prey selectivity by the wood stork. Condor 78(3): 324-330.

U.S. Fish and Wildlife Service. 1997. Revised recovery plan for the U.S. breeding population of

the wood stork. U.S. Fish and Wildlife Service. Atlanta, Georgia. 41 pp.

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