[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Proposed Rules]
[Pages 34571-34588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5439]
[[Page 34571]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 060228057-6057-01; I.D. 022206D]
RIN 0648-AU38
Endangered and Threatened Species; Designation of Critical
Habitat for the Southern Resident Killer Whale
AGENCY: National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate critical habitat for the Southern Resident killer whale
(Orcinus orca) distinct population segment (DPS), which was recently
listed as endangered under the Endangered Species Act (ESA). Three
specific areas are proposed for designation: The Summer Core Area in
Haro Strait and waters around the San Juan Islands; Puget Sound; and
the Strait of Juan de Fuca, which comprise approximately 2,564 square
miles (6,641 sq km) of marine habitat. We propose to exclude 18
military sites, comprising approximately 112 square miles (291 sq km),
because of national security impacts.
We are soliciting comments from the public on all aspects of the
proposal, including information on the economic, national security, and
other relevant impacts of the proposed designation, as well as the
benefits to Southern Resident killer whales from designation. A draft
economic analysis, biological report, and Section 4(b)(2) report
conducted in support of this proposal are also available for public
review and comment.
DATES: Comments on this proposed rule must be received by close of
business on August 14, 2006. Public meetings have been scheduled for
July 12, 2006, 7-9 p.m., at the Seattle Aquarium, Seattle, WA and July
13, 2006, 7-9 p.m., at the Whale Museum, Friday Harbor, WA. Requests
for additional public hearings must be made in writing by July 31,
2006.
ADDRESSES: Comments may be submitted by any of the following methods:
E-mail: [email protected]. E-mail comments, with or
without attachments, are limited to 5 megabytes.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions at that site for submitting comments.
Mail: Submit written comments and information to Chief,
Protected Resources Division, 1201 NE Lloyd Blvd., Suite 1100,
Portland, OR 97232-1274.
The proposed rule, maps, stock assessments, listing rule,
biological and economic analyses, and other materials relating to this
proposal can be found on our Web site at http://www.nwr.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Lynne Barre at (206) 526-4745, or
Marta Nammack at (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
Under the Endangered Species Act of 1973, as amended (ESA), we are
responsible for determining whether certain species, subspecies, or
distinct population segments (DPS) are threatened or endangered, and
designating critical habitat for them (16 U.S.C. 1533). In November
2005, we listed the Southern Resident killer whale DPS as endangered
under the ESA (70 FR 69903; November 18, 2005). At the time of listing,
we also announced our intention to propose critical habitat for the
Southern Resident killer whale.
Section 3 of the ESA defines critical habitat as ``(i) the specific
areas within the geographical area occupied by the species, at the time
it is listed * * *, on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed * * *, upon a determination by the
Secretary that such areas are essential for the conservation of the
species.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the
terms ``conserve,'' ``conserving,'' and ``conservation'' to mean: ``to
use, and the use of, all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to this chapter are no longer
necessary.''
Section 4 of the ESA requires that, before designating critical
habitat, we consider economic impacts, impacts on national security,
and other relevant impacts of specifying any particular area as
critical habitat. The Secretary may exclude any area from critical
habitat if he determines that the benefits of exclusion outweigh the
benefits of designation, unless excluding an area from critical habitat
will result in the extinction of the species concerned. Once critical
habitat is designated, section 7(a)(2) of the ESA requires that each
Federal agency, in consultation with us and with our assistance, ensure
that any action it authorizes, funds, or carries out is not likely to
result in the destruction or adverse modification of critical habitat.
Killer Whale Natural History
Killer whales are the world's largest dolphin. The sexes show
considerable size dimorphism, with males attaining maximum lengths and
weights of 29.5 feet (9 m) and 12,275 pounds (5,568 kg), respectively,
compared to 25.3 feet (7.7 m) and 8,400 pounds (3,810 kg) for females
(Dahlheim and Heyning, 1999). Adult males develop larger pectoral
flippers, dorsal fins, tail flukes, and girths than females (Clark and
Odell, 1999). Maximum life span is estimated to be 80-90 years for
females and 50-60 years for males (Olesiuk et al., 1990). Animals are
black dorsally and have a white ventral region extending from the chin
and lower face to the belly and anal region. Each whale has a uniquely
shaped and scarred dorsal fin and saddle patch, which permits animals
to be individually recognized, as depicted in photo-identification
catalogs, such as those compiled for the northeastern Pacific region
(e.g., Black et al., 1997; Dahlheim, 1997; Dahlheim et al., 1997; van
Ginneken et al., 1998; 2000; 2005; Matkin et al., 1999; Ford and Ellis,
1999; Ford et al., 2000).
Three distinct forms of killer whales, termed residents,
transients, and offshores, are recognized in the northeastern Pacific
Ocean. Although there is considerable overlap in their ranges, these
forms display significant genetic differences due to a lack of
reproductive interchange (Stevens et al., 1989; Hoelzel and Dover,
1991; Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and
Ellis, 2001; Krahn et al., 2004). There are also important differences
in ecology, behavior, morphology, and acoustics among these three forms
(Baird, 2000; Ford et al., 2000).
Resident killer whales in U.S. waters are distributed from Alaska
to California, with four distinct communities recognized: Southern,
Northern, Southern Alaska, and Western Alaska (Krahn et al., 2002;
2004). The Southern Resident DPS consists of three pods, identified as
J, K, and L pods, that reside for part of the year in the inland
waterways of Washington State and British Columbia (Strait of Georgia,
[[Page 34572]]
Strait of Juan de Fuca, and Puget Sound), principally during the late
spring, summer, and fall (Ford et al., 2000; Krahn et al., 2002). Pods
visit coastal sites off Washington and Vancouver Island (Ford et al.,
2000), but travel as far south as central California and as far north
as the Queen Charlotte Islands. Offshore movements and distribution are
largely unknown for the Southern Resident DPS.
Social organization in this region is based on maternal kinship.
Most mating in the North Pacific is believed to occur from May to
October (Nishiwaki, 1972; Olesiuk et al., 1990; Matkin et al., 1997).
However, small numbers of conceptions apparently happen year-round, as
evidenced by births of calves in all months. Calves remain close to
their mothers during their first year of life, often swimming slightly
behind and to the side of the mother's dorsal fin. Weaning age remains
unknown, but nursing probably ends at 1 to 2 years of age (Haenel,
1986; Kastelein et al., 2003). Mothers and offspring maintain highly
stable social bonds throughout their lives, and this natal relationship
is the basis for the matrilineal social structure (Bigg et al., 1990;
Baird, 2000; Ford et al., 2000). A matriline is usually composed of a
female, her sons and daughters, and offspring of her daughters, and
contains up to 17 individuals spanning up to five generations. Members
maintain extremely strong bonds, and individuals seldom separate from
the group for more than a few hours.
Although there is considerable overlap in the geographic ranges of
Southern and Northern Resident killer whales, pods from the two
communities have not been observed to intermix (Ford et al., 2000).
Genetic analyses using nuclear (microsatellite) and mitochondrial DNA
indicate that the two communities are most likely reproductively
isolated from each other (Hoelzel et al., 1998; Barrett-Lennard, 2000;
Barrett-Lennard and Ellis, 2001). Recent paternity analyses using
microsatellite DNA indicate that resident males nearly always mate with
females outside of their own pods, thereby reducing the risks of
inbreeding (Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001).
Based on scale sampling and stomach contents studies, Southern
Resident killer whales are known to consume 22 species of fish and one
species of squid (Scheffer and Slipp, 1948; Ford et al., 1998; 2000;
Ford and Ellis, 2005; Saulitis et al., 2000). Most published
information originates from a single study (Ford et al., 1998; Ford and
Ellis, 2005) in British Columbia, including southeastern Vancouver
Island, that focused primarily on Northern Residents, relied on several
field techniques susceptible to bias (e.g., surface observations and
scale sampling), and reported on a relatively small sample of
observations for Southern Residents. Of the 487 records of apparent
fish predation events from 1974-2004, only 68 (14 percent) observations
came from Southern Residents. While this information is limited, it is
the best information available.
In this study, salmon were found to represent over 96 percent of
the prey during the summer and fall. Chinook salmon (Oncorhynchus
tshawytscha) were selected over other species, comprising over 70
percent of the identified salmonids taken. This preference occurred
despite the much lower abundance of Chinook in the study area in
comparison to other salmonids and is probably related to the species'
large size, high fat and energy content, and year-round occurrence in
the area. Other salmonids eaten in smaller amounts included chum (O.
keta, 22 percent of the diet), pink (O. gorbuscha, three percent), coho
(O. kisutch, two percent), and sockeye (O. nerka, one percent) salmon,
and steelhead (O. mykiss, less than one percent) (Ford and Ellis,
2005). This work suggests an overall preference for Chinook salmon
during the summer and fall, but also revealed extensive feeding on chum
salmon in the fall. Rockfish (Sebastes spp.), Pacific halibut
(Hippoglossus stenolepis), and Pacific herring (Clupea pallasi) were
also observed during predation events (Ford and Ellis, 2005), but in
much smaller amounts. This study may underestimate the extent of
feeding on bottom fish (Baird, 2000) because it is more difficult to
observe predation on bottom fish.
A number of smaller flatfish, lingcod (Ophiodon elongatus),
greenling (Hexagrammos spp.), and squid have been identified in stomach
content analyses of resident whales (Ford et al., 1998). Additional
sampling of prey remains in 2004 and 2005 also indicate consistent
primary selection of Chinook by the Southern Residents in the seasons
sampled (NWFSC, unpubl. data).
The energy requirements of killer whales are about 85,000 kcal per
day for juveniles, 100,000 kcal per day for immatures, 160,000 kcal per
day for adult females, and 200,000 kcal per day for adult males
(Osborne, 1999). Based on these values and an average size for five
salmon species combined, Osborne (1999) estimated that adults must
consume about 28-34 adult salmon daily and that younger whales (<13
years of age) need 15-17 salmon daily to maintain their energy
requirements. These data provide a ``rule of thumb'' of approximately
25 salmon per day per whale, estimated over all age classes. We
estimate that a Southern Resident DPS of 90 individuals would eat about
820,000 adult salmon annually (Osborne, 1999). This does not, however,
account for any other prey species and is therefore likely an
overestimate of potential salmon consumption. The average fish size in
the extrapolation was based on a combination of five species, so the
estimate also does not account for consumption of varying amounts of
different species of salmon.
As with other delphinids, killer whales hear sounds through the
lower jaw and other portions of the head, which transmit the sound
signals to receptor cells in the middle and inner ears (Mhl et al.,
1999; Au, 2002). Hearing ability extends from one to at least 120 kHz,
but is most sensitive in the range of 18-42 kHz (Szymanski et al.,
1999). The most sensitive frequency is 20 kHz, which corresponds with
the approximate peak energy of the species' echolocation clicks
(Szymanski et al., 1999). Clicks are brief pulses of ultrasonic sound
given singly or more often in series known as click trains. They are
used primarily for navigation and discriminating prey and other objects
in the surrounding environment, but are also commonly heard during
social interactions and may have a communication function (Barrett-
Lennard et al., 1996). Killer whales locate their prey through a
combination of echolocation and passive listening (Barrett-Lennard et
al., 1996), but probably rely on vision and echolocation during
capture.
Vocal communication is particularly advanced in killer whales and
is an essential element of the species' complex social structure. Like
all dolphins, killer whales produce numerous types of vocalizations
that are useful in navigation, communication, and foraging (Dahlheim
and Awbrey, 1982; Ford, 1989; Barrett-Lennard et al., 1996; Ford et
al., 2000; Miller, 2002; Miller et al., 2004). Dialects are complex and
stable over time, and are unique to single pods. Call patterns and
structure are also distinctive within matrilines (Miller and Bain,
2000). Individuals likely learn their dialect through contact with
their mother and other pod members (Ford, 1989; 1991; Miller and Bain,
2000). Distinct vocal repertoires, or dialects, may be a mechanism that
guides breeding with individuals
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outside of natal pods, but within the resident group.
Killer whales frequent a variety of marine habitats that do not
appear to be constrained by water depth, temperature, or salinity
(Baird, 2000). They are highly mobile, can cover large distances, and
range over a variety of habitats, including inland waters and open
ocean coastal areas.
The Southern Residents spend large amounts of time in ``core''
inland marine waters coinciding with congregations of migratory salmon
returning from the Pacific Ocean to spawn in U.S. and Canadian Rivers.
The topographic and oceanographic features in these core areas include
channels and shorelines which congregate prey and assist with foraging.
Southern Residents are large mammals requiring abundant food sources to
sustain metabolic processes throughout the year. Prey availability
changes seasonally, and Southern Residents appear to depend on
different prey species and habitats throughout the year. The seasonal
timing of salmon returns to Southern Puget Sound river systems likely
influences the movements of Southern Residents out of core summer
areas. Whales may travel significant distances to locate prey
aggregations sufficient to support their numbers.
Physical or Biological Features Essential for Conservation (Primary
Constituent Elements)
Joint NMFS-U.S. Fish and Wildlife Service regulations for listing
endangered and threatened species and designating critical habitat at
50 CFR 424.12(b) state that the agencies ``shall consider those
physical and biological features that are essential to the conservation
of a given species and that may require special management
considerations or protection (hereafter also referred to as `Essential
Features' or `Primary Constituent Elements'/`PCEs').'' Pursuant to the
regulations, such requirements include, but are not limited to, the
following: (1) Space for individual and population growth, and for
normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4)
sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally, (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of a species. These regulations state that we
shall focus on essential features within the specific areas considered
for designation. These features ``may include, but are not limited to,
the following: spawning sites, feeding sites, seasonal wetland or
dryland, water quality or quantity, geological formation, vegetation
type, tide, and specific soil types.''
Fish are the major dietary component of resident killer whales in
the northeastern Pacific, with 22 species of fish and one species of
squid (Gonatopsis borealis) known to be eaten (Scheffer and Slipp,
1948; Ford et al., 1998; 2000; Ford and Ellis, 2005; Saulitis et al.,
2000). Observations from this region indicate that salmon are clearly
preferred as prey (Ford et al., 1998; Ford and Ellis, 2005) and are
likely consumed in large amounts, as indicated by the estimates of
total salmon consumed by the Southern Resident killer whale DPS.
Sufficient prey abundance is necessary to support individual growth to
reach sexual maturity and reproduction, including lactation and
successful rearing of calves.
In addition to a sufficient biomass of prey species, the prey must
not have amounts of contaminants that exceed levels that can cause
mortality or reproductive failure. Because of their long life span,
position at the top of the food chain, and their blubber stores, killer
whales accumulate high concentrations of contaminants. Organochlorines,
such as polychlorinated biphenyls (PCBs) and
dichlorodiphenyltrichloroethane (DDT), and many other chemical
compounds are a concern because of their ability to induce immune
suppression, reproductive impairment, and other physiological damage,
as observed in several species of marine mammals (Beland et al., 1998;
Bergman et al., 1992; De Guise et al., 2003; Jepson et al., 1999;
Reijinders, 2003; Ross, 2002). To move between important habitat areas,
find prey, and fulfill other life history requirements, the Southern
Resident killer whales require open waterways that are free from
obstruction, such as in-water structures that block passage.
Killer whale habitat use is dynamic, and specific breeding, calving
or resting areas have not been documented. Births occur largely from
October to March, but may take place in any month (Olesiuk et al.,
1990), and, therefore, potentially in any part of the whales' range.
Southern Residents are highly mobile and can travel up to 100 miles
(160 km) in a 24-hour period (Baird, 2000), allowing rapid movements
between areas. These movements likely coincide with prey
concentrations. Individual knowledge of productive feeding areas and
other special habitats is probably important in the selection of
locations visited and is likely a learned tradition passed from one
generation to the next (Ford et al., 1998).
Based on this natural history of the Southern Resident killer
whales and their habitat needs, the physical or biological features of
Southern Resident killer whale habitat identified in the proposal to
list the species (69 FR 76673; December 22, 2004) were:
(1) Water quality to support growth and development;
(2) Prey species of sufficient quantity, quality and availability
to support growth and development;
(3) Sound levels that do not exceed thresholds that inhibit
communication or foraging activities or result in temporary or
permanent hearing loss; and
(4) Safe passage conditions to support migration and foraging.
NMFS received several comments on the features mentioned in the
proposal to list the species. For purposes of this proposal to
designate critical habitat, we have revised the PCEs as follows:
(1) Water quality to support growth and development;
(2) Prey species of sufficient quantity, quality and availability
to support individual growth, reproduction and development, as well as
overall population growth; and
(3) Passage conditions to allow for migration, resting, and
foraging.
We are gathering additional information to assist us in evaluating
sound as a potential PCE, see Public Comments Solicited.
Geographical Area Occupied by the Species
Photo-identification studies, tracking by boats, and opportunistic
sightings have provided considerable information on the ranges and
movements of Southern Resident killer whales since the early 1970s.
Ranges are best known from late spring to early autumn (May-September),
when survey effort is greatest. During this period, all three Southern
Resident pods--J, K and L--are regularly present in the Georgia Basin
(defined as the Georgia Strait, San Juan Islands, and Strait of Juan de
Fuca) (Heimlich-Boran, 1988; Felleman et al., 1991; Olson, 1998;
Osborne, 1999).
While in inland waters during summer months, all of the pods
concentrate their activity in Haro Strait, Boundary Pass, the southern
Gulf Islands, the northeastern end of the Strait of Juan de Fuca, and
several localities in southern Georgia Strait (Heimlich-Boran, 1988;
Felleman et al., 1991; Olson, 1998; Ford et al., 2000). Pods commonly
occur and are observed foraging in areas where salmon frequent,
especially during the times of year
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salmon are migrating to their natal rivers (Heimlich-Boran, 1986; 1988;
Nichol and Shackleton, 1996). Notable concentrations include Haro
Strait and Boundary Passage, the southern tip of Vancouver Island,
Swanson Channel off North Pender Island, and the mouth of the Fraser
River delta, which is visited by all three pods in September and
October (Felleman et al., 1991; Ford et al., 2000). These sites are
major corridors for migrating salmon.
Individual pods are generally similar in their preferred areas of
use (Olson, 1998), although some seasonal and temporal differences
exist in areas used. All three pods typically arrive in May or June and
spend most of their time in inland waters until departing in October or
November. However, K and L pods make frequent trips lasting a few days
to the outer coasts of Washington and southern Vancouver Island during
this time period (Ford et al., 2000). During early autumn, Southern
Resident pods, especially J pod, routinely expand their movements into
Puget Sound, probably to take advantage of chum and Chinook salmon runs
(Osborne, 1999). Additional studies currently underway have identified
finer scale pod differences in seasonal movement patterns and use of
core areas (Hauser et al., in prep).
There are no confirmed sightings of Southern Resident killer whales
inside Hood Canal. On one occasion in 1995, acoustic recordings from
Dabob Bay were identified as J pod vocalizations (Unger, 1997). We do
not consider this sufficient evidence of presence to find Hood Canal
``within the geographical area occupied by the species.'' (Transient
killer whales, in contrast, have been observed in Hood Canal on
multiple occasions and have remained in Hood Canal for extended periods
in the last several years.)
We also do not consider extremely shallow waters of Puget Sound to
be within the geographical area occupied by the species. Male killer
whales grow to 29.5 feet (9m), and females to 25.3 feet (7.7m), which
may limit maneuverability in shallow waters. Southern Residents are
seldom observed in shallow waters. (This is in contrast to transient
killer whales, which enter shallow water to capture seals and sea
lions, and Northern Residents, which spend time in shallow water at
rubbing beaches.) Because there is limited information, we are
requesting information on killer whale use of shallow areas with less
than 20 feet (6.1m) of water (see Public Comments Solicited).
During the late fall, winter, and early spring, the ranges and
movements of the Southern Residents are less well known. J pod
continues to occur intermittently in the Georgia Basin and Puget Sound
part of this time, but its location during apparent absences is
uncertain (Osborne, 1999). One sighting of this pod was made off Cape
Flattery, Washington, in March 2004 (Krahn et al., 2004). Prior to
1999, K and L pods followed a general pattern in which they spent
progressively smaller amounts of time in inland waters during October
and November and departed them entirely by December of most years
(Osborne, 1999). Sightings of both groups passing through the Strait of
Juan de Fuca in late fall suggested that activity shifted to the outer
coasts of Vancouver Island and Washington (Krahn et al., 2002),
although it is unclear if the whales spend a substantial portion of
their time in this area or simply transit to other locations.
While there are considerable data on the use of inland waters of
Washington, there is very little information on the movements of
Southern Resident killer whales off the coast. Areas of activity of all
pods are virtually unknown during their absences from inland waters. In
the last 30 years of study, there are only 28 confirmed sightings in
outside waters (Krahn et al., 2004; NWFSC unpubl. data). The majority
of these sightings were opportunistic, with most occurring within 10
miles (16.1 km) of shore, and we do not know how far from shore the
Southern Residents range. Several new sightings occurred during the
last 5 years, when effort was increased with dedicated ship surveys and
expanded volunteer coastal sighting networks. Our knowledge of the
southern and northern boundaries of the range has expanded with these
new sightings from California and the Queen Charlotte Islands in recent
years. At this time there are few data on how the whales are using
offshore areas; however, some of the sightings included observations of
feeding.
There is an active research effort underway to identify coastal and
offshore distribution of Southern Residents. We have increased outreach
efforts to gather sighting information from coastal communities, vessel
operators, and pilots along the coasts of Oregon, Washington, and
British Columbia. In addition, researchers are conducting dedicated
ship surveys to locate the whales and observe their activities outside
of Puget Sound. The research program is a long-term effort, but we hope
to greatly increase the number of coastal observations in the next 5
years. As new information is collected on the coastal and offshore
distribution and habitat use, we hope to fill in the data gaps about
the important habitat features of these coastal and offshore areas.
NMFS regulations at 50 CFR 424.12(h) state: ``Critical habitat
shall not be designated within foreign countries or in other areas
outside of United States jurisdiction.'' Although the Southern
Residents' range includes inland waters of Canada, we are not proposing
these areas for designation.
Specific Areas Within the Geographical Area Occupied by the Species
Several commenters stated that designating critical habitat was
important for the recovery of Southern Resident killer whales and that
designation should occur as soon as possible. Suggestions for essential
features, and specific areas where they could be found, were general
and included ``most of Puget Sound,'' ``Puget Sound and the Straits of
Georgia and Juan de Fuca,'' and ``all internal waters of Washington
State.''
We reviewed the available information on Southern Resident
distribution, habitat use and habitat needs in a biological report to
assist in identifying critical habitat (NMFS, 2006a). Within the
geographical area occupied by the Southern Resident killer whales we
have identified three specific areas that contain essential habitat
features. We have divided the inside waters of Washington State into
specific areas based on the habitat features and the use patterns of
the Southern Resident killer whales.
We analyzed Southern Resident killer whale sightings data from The
Whale Museum (Osborne, 2005; The Whale Museum Orca Master, 1990-2003)
to assist in identifying specific areas based on habitat use patterns
by the whales. The Whale Museum data are predominantly opportunistic
sightings from a variety of sources, including public reports,
commercial whale watching industry pager system, Soundwatch, Lime Kiln
State Park land-based observations, and compilations of independent
researcher reports. The data set does not account for level of effort
by season or location, and, therefore, the sampling and data are biased
(Osborne, 2005). The 1990-2003 Whale Museum data set is, however, the
most comprehensive long-term data available to evaluate broad-scale
whale distribution in inland waters at this time (with a total number
of sighting records of 22,509). In order to evaluate frequency of use,
our analysis of the sightings was limited to one unique location
sighting, per location, per day to reduce the bias introduced by
multiple sightings of the same whales in
[[Page 34575]]
the same location on the same day (total number of unique sightings per
day is 11,836). For the majority of the killer whale sightings the
location reported was not an exact point location (Lat./Long.), and all
locations were subsequently assigned to a center point in a quadrant
system (Osborne, 2005). Almost half of the data is from the Whale Watch
pager system created by the commercial whale watch industry and
available to subscribers. A validation of recent pager data revealed
greater than 90 percent accuracy in locating whales (Hauser et al., in
prep).
From the sightings and other data, we have identified three
``specific areas,'' within the geographical area occupied by the
species, that contain PCEs. We considered presence and movements of the
whales, behavioral observations and studies, and other information to
verify that one or more of the physical or biological features, or
PCEs, can be found in these three areas. In some cases where direct
data on PCEs were not available, we relied on distribution patterns of
the whales to infer presence of PCEs.
Area 1. Core Summer Area--Bordered to the North and West by the
U.S./Canadian border, Area 1 includes the waters surrounding the San
Juan Islands, the U.S. portion of the Southern Strait of Georgia, and
areas directly offshore of Skagit and Whatcom counties. Prey species,
one of the PCEs, are present in Area 1. Runs of salmon passing through
Area 1 include Chinook, chum, coho, pink, and sockeye salmon, which
have all been identified as prey for Southern Residents (Ford et al.,
1998; Ford and Ellis, 2005; NWFSC, unpubl. data). The Strait of Juan de
Fuca, Haro and Georgia Straits are relatively narrow channels and
concentrate salmon returning from the Pacific Ocean to spawn in U.S.
and Canadian rivers. In particular, Area 1 lies near the mouth of the
Fraser River, which has the largest salmon runs in the Georgia Basin/
Puget Sound region (Northcote and Atagi, 1997).
Occurrence of Southern Residents in Area 1 coincides with
concentrations of salmon. Southern Resident killer whales have been
sighted in Area 1 during every month of the year, but sightings are
more consistent and concentrated in the summer months of June through
August. The Whale Museum database from 1990-2003 contains 11,836 unique
sightings after duplicate locations on the same date are excluded. Of
these, 8,508 are in U.S. waters, and 85 percent of the U.S. sightings
are in Area 1. Although sighting effort in Area 1 is extensive during
the summer months as compared to other areas, which biases the data,
the strength of the summer use pattern would undoubtedly persist if
accounting for sighting effort. Sighting data from 1976-1990, when
effort was significantly lower, also reflects this pattern (Whale
Museum, unpubl. data). The largest number of sightings in Washington's
inland waters is from Haro Strait off the west side of San Juan Island.
There are over 1,200 unique sightings from 1990-2003 in one quadrant
off the west side of San Juan Island.
Much of the behavioral research on Southern Residents takes place
within Area 1. Southern Residents are observed exhibiting a variety of
behaviors in this area, including travel, forage, social, and play.
Resident whales spend 50-67 percent of their time foraging (Heimlich
Boran, 1988; Ford, 1989; Morton, 1990; Felleman et al., 1991).
Opportunities to forage are presumed to be a major factor attracting
Southern Residents to Area 1, particularly in the summer months when it
is considered a primary feeding area for all three pods (J, K, and L).
Area 2. Puget Sound--south from Deception Pass Bridge, entrance to
Admiralty Inlet, Hood Canal Bridge. Southern Resident killer whale
occurrence in Area 2 has been correlated with fall salmon runs, a prey-
related PCE. Feeding has been observed in Area 2 (NWFSC, unpubl. data),
though few behavioral studies have been conducted in this area. During
the fall, Southern Residents, especially J pod, expand their movements
into Puget Sound, likely taking advantage of chum and Chinook salmon
runs (Osborne, 1999). A fall chum run was suggested as the likely
reason for an extended presence of members of L pod in Dyes Inlet
during October and November of 1997.
Southern Resident killer whales have been sighted in parts of Area
2 in all seasons despite limited search effort. The presence of
Southern Residents in Area 2 is intermittent, with the smallest number
of sightings in May-July. There are different sighting patterns in Area
2 for the three pods. In the most southern portion of Area 2, south of
Tacoma Narrows Bridge, there have been only a small number of Southern
Resident sightings from October-January, with one additional sighting
in April.
Area 3. Strait of Juan de Fuca--Deception Pass Bridge, San Juan and
Skagit County lines to the northeast, entrance to Admiralty Inlet to
the southeast, U.S./Canadian border to the north, Bonilla Point/Tatoosh
Island line to the West. All pods regularly use the Strait of Juan de
Fuca for passage from Areas 1 and 2 to outside waters in the Pacific
Ocean. Area 3 is predominantly a passage used to access outer coastal
waters feeding grounds, including Swiftsure and La Perouse Banks, off
Tofino, British Columbia, and off Westport, as well as other areas with
unknown usage, such as the coast of northern California. Recent
observations at Westport coincided with presence of a spring Chinook
salmon run, although other species were also likely present (NWFSC,
unpubl. data). The presence of migrating salmonids in the Strait of
Juan de Fuca suggests that feeding might occur during times the whales
are transiting. However, the whales are not known to spend long periods
in localized areas in the Strait. Sightings of the Southern Residents
in Area 3 are limited, particularly on the U.S. side of the
international boundary, as there is little observation effort in the
area, particularly to the west toward the Bonilla Point/Tatoosh Island
line. Even with a small number of actual sightings, we can infer that
the whales are using this corridor, and the passage PCE is present in
Area 3 based on the inland and coastal sightings of whales. The Strait
of Juan de Fuca is not the only transit corridor between inland waters
and coastal British Columbia, and the whales occasionally use the
Strait of Georgia and Johnstone Strait in Canadian waters as an
alternate route.
Special Management Considerations
The specific areas within the geographical area occupied by a
species meet the definition of critical habitat only if they contain
physical or biological features that ``may require special management
considerations or protection.'' Agency regulations at 50 CFR 424.02(j)
define ``special management considerations or protection'' to mean
``any methods or procedures useful in protecting physical and
biological features of the environment for the conservation of listed
species.'' Several forms of human activity have the potential to affect
the habitat of killer whales and, specifically, the PCEs that are
essential to their conservation.
Most salmon stocks throughout the Northwest are at a fraction of
their historic levels. Historically, overfishing was a major cause of
decline. More recently the major cause is loss of freshwater habitat.
Poor ocean conditions over the past two decades reduced populations
already weakened by the degradation and loss of freshwater and estuary
habitat, fishing pressures, hydropower system management, and hatchery
practices.
Continued regulation of contaminants and pollution in Puget Sound
is also necessary to protect the prey PCE for
[[Page 34576]]
Southern Residents through management schemes, such as the National
Pollutant Discharge Elimination System (NPDES). Contaminants enter
marine waters and sediments from numerous sources, but are typically
concentrated near areas of high human population and industrialization.
Once in the environment these substances proceed up the food chain,
accumulating in long-lived top predators like Southern Resident killer
whales. Chemical contamination through the food chain continues to be a
potential threat to Southern Resident killer whales, despite the
enactment of modern pollution controls in recent decades, which were
successful in reducing, but not eliminating, the presence of many
contaminants in the environment.
Oil spills are another source of contamination that can have long-
lasting impacts on habitat (although the primary concern with oil
spills is the potential for direct injury to the whales). The
Environmental Protection Agency and U.S. Coast Guard oversee the Oil
Pollution Prevention regulations promulgated under the authority of the
Federal Water Pollution Control Act. There is a Northwest Area
Contingency Plan, developed by the Northwest Area Committee, which
serves as the primary guidance document for oil spill response in
Washington and Oregon.
Southern Residents are highly mobile and use a variety of areas for
foraging and other activities, as well as for traveling between these
areas. Human activities can interfere with movements of the whales and
impact the passage PCE. In particular, vessels may present obstacles to
whale passage, causing the whales to swim further and change direction
more often, which potentially increases energy expenditure for whales
and impacts foraging behavior (although this effect of vessels is
primarily a direct effect on the whales rather than an effect on their
habitat).
Major categories of habitat-related activities which may require
special management considerations or protection include fishery
management, vessel activities, and water quality management. All of
these activities have the potential to affect the PCEs by altering prey
abundance, prey contamination levels, and passage between areas.
Features Which May Require Special Management Considerations or
Protection in Each Specific Area
Area 1. Area 1 likely has areas of low to moderate levels of
contaminated sediments. Levels of contaminants in marine mammals such
as harbor seals show a trend of decreasing levels of contamination
moving north from South Puget Sound to the San Juans and up into
Canadian waters (Jeffries et al., 2003; Ross et al., 2004). Exposure to
contaminants for species of salmon depends on feeding patterns and may
also be linked to salmon spending different amounts of time in Puget
Sound (O'Neill et al., 2005). Three of the four major oil refineries in
Puget Sound are located in Area 1. There is commercial and recreational
fishing for salmon and other species in Area 1, and effort is
seasonally dependent on fish abundance.
Area 1 and nearby adjoining Canadian waters contain the highest
level of commercial and recreational whale watching activity in the
region. The majority of both Canadian- and U.S.-based whale watching
vessels originate from ports and marinas in Area 1, although there are
a small number of vessels originating from ports in Areas 2 and 3
(Hauser et al., in prep). Fishing vessels, ferries, oil tankers, and
commercial shipping vessels are also present in Area 1, which contains
a major shipping channel along the U.S.-Canada border.
Area 2. Contaminated sediment levels in Area 2 likely range from
low/moderate (northern portions) to very high (e.g., near Tacoma). A
higher number of NPDES permits are issued in Area 2 than in Areas 1 or
3. One of the four major oil refineries in Puget Sound is located in
Area 2. Considerable vessel traffic (including shipping, oil tanker and
ferry traffic) occurs in Area 2, and the ports of Seattle and Tacoma
are located in Area 2. Whale watching may be expanding in Area 2 to
include fall months following the primary summer whale watch season.
There is commercial and recreational fishing for salmon and other
species in Area 2, and effort is seasonally dependent on fish
abundance.
Area 3. Contaminated sediment levels in Area 3 likely range from
low to moderate with isolated spots of moderate/high levels (e.g., Port
Angeles). Area 3 contains a major shipping lane for commercial shipping
vessels entering and departing major U.S. ports of Seattle and Tacoma,
and Vancouver in British Columbia, Canada. Oil tankers also use the
shipping lane to transport crude oil to the four major refineries in
Puget Sound. There is little whale watching activity in Area 3. There
is commercial and recreational fishing for salmon and other species in
Area 3, and effort is seasonally dependent on fish abundance.
Coastal and Offshore Areas
We have few data on Southern Resident distribution and habitat use
of coastal and offshore areas in the Pacific Ocean. While we know that
the whales occupy these waters for a portion of the year and they are
considered part of the geographical area occupied by the species, we do
not have detailed information about distribution, behavior, and
habitat. While we can infer that some of the PCEs, such as prey, must
be present to support the whales, we do not have sufficient data to
describe them adequately and identify ``specific areas'' with those
features. Based on the difficulties of determining PCEs, we cannot
assess the human activities affecting them or the special management
considerations for their protection. At this time we are not proposing
to designate coastal or offshore areas, though we do recognize that
they are important for the Southern Resident killer whales. There is an
active research program to fill the data gaps regarding coastal and
offshore distribution and habitat features, and we anticipate obtaining
additional data in the coming years. We will consider new information
as it becomes available to inform future considerations of critical
habitat for Southern Residents.
Unoccupied Areas
ESA section 3(5)(A)(ii) further defines critical habitat to include
``specific areas outside the geographical area occupied'' if the areas
are determined by the Secretary to be ``essential for the conservation
of the species.'' Regulations at 50 CFR 424.12(e) specify that NMFS
``shall designate as critical habitat areas outside the geographical
area presently occupied by a species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
species.'' At the present time we have not identified any areas outside
the geographical area occupied by the species that are essential for
its conservation, and, therefore, we are not proposing to designate any
unoccupied areas. During the comment period we are requesting
information on any potential unoccupied areas that may be essential for
conservation.
Activities That May be Affected
Section 4(b)(8) of the ESA requires that we describe briefly and
evaluate, in any proposed or final regulation to designate critical
habitat, those activities that may destroy or adversely modify such
habitat or that may be affected by such designation. A wide variety of
activities may affect critical
[[Page 34577]]
habitat and, when carried out, funded, or authorized by a Federal
agency, require an ESA section 7 consultation. Such activities include,
but are not limited to, fishery management practices, vessel traffic,
dredging and disposal, sub-marine cable/pipeline installation and
repair, oil and gas exploration, pollutant discharge, and oil spill
prevention and response.
This proposed designation of critical habitat will provide Federal
agencies, private entities, and the public with clear notification of
proposed critical habitat for Southern Resident killer whales and the
boundaries of the habitat. This proposed designation will also assist
Federal agencies and others in evaluating the potential effects of
their activities on critical habitat and in determining if ESA section
7 consultation with NMFS is needed. Consistent with recent agency
guidance on conducting adverse modification analyses (NMFS, 2005a), we
will apply the statutory provisions of the ESA, including those in
section 3 that define ``critical habitat'' and ``conservation,'' to
determine whether a proposed action might result in the destruction or
adverse modification of critical habitat.
Application of ESA Section 4(b)(2)
The foregoing discussion describes the specific areas that fall
within the ESA section 3(5) definition of critical habitat and are
eligible for designation as critical habitat. Specific areas eligible
for designation are not automatically designated as critical habitat.
Section 4(b)(2) of the ESA requires the Secretary to first consider the
economic impact, impact on national security, and any other relevant
impact of designation. The Secretary has the discretion to exclude an
area from designation if he determines the benefits of exclusion (that
is, avoiding the impact that would result from designation) outweigh
the benefits of designation based upon best scientific and commercial
data. The Secretary may not exclude an area from designation if
exclusion will result in the extinction of the species. Because the
authority to exclude is discretionary, exclusion is not required for
any area.
The first step in conducting an ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. ESA section 3(5)
defines critical habitat in terms of ``specific areas,'' and ESA
section 4(b)(2) requires the agency to consider certain factors before
designating ``particular areas.'' Depending on the biology of the
species, the characteristics of its habitat, and the nature of the
impacts of designation, ``specific'' areas might be different from, or
the same as, ``particular'' areas. For this designation, we analyzed
two types of ``particular'' areas. Where we considered economic
impacts, and weighed the economic benefits of exclusion against the
conservation benefits of designation, we used the same biologically-
based ``specific'' areas we had identified under section 3(5)(A) (Areas
1, 2, and 3). This delineation allowed us to most effectively consider
the conservation value of the different areas when balancing
conservation benefits of designation against economic benefits of
designation. Where we considered impacts on national security, however,
we instead used a delineation of ``particular'' areas based on
ownership or control of the area. This delineation allowed us to
compare and balance the benefits of designation and exclusion relative
to land ownership and management.
Impacts of Designation
ESA Section 4(b)(2) provides that the Secretary shall consider
certain impacts before designating critical habitat: ``the Secretary
shall designate critical habitat * * * on the basis of the best
scientific data available and after taking into consideration the
economic impact, impact to national security, and any other relevant
impact of specifying any particular area as critical habitat.'' The
primary impact of a critical habitat designation comes from the ESA
section 7(a)(2) requirement that Federal agencies ensure their actions
are not likely to result in the destruction or adverse modification of
critical habitat. Determining this impact is complicated by the fact
that section 7(a)(2) contains the overlapping requirement that Federal
agencies must also ensure their actions are not likely to jeopardize
the species' continued existence. The true impact of designation is the
extent to which Federal agencies modify their actions to ensure their
actions are not likely to adversely modify the critical habitat--beyond
any modifications they would make because of listing and the jeopardy
requirement. Additional impacts of designation include state and local
protections that may be triggered as a result of designation, and
benefits that may arise from education of the public to the importance
of an area for species conservation. We did not identify state or local
protections that may be triggered by this proposed designation, but
have identified educational benefits. We discuss educational benefits
in the ``Benefits of Designation'' section below.
We have found it difficult to predict the incremental change in
Federal agency activities as a result of critical habitat designation
and the adverse modification prohibition, beyond the changes predicted
to occur as a result of listing and the jeopardy prohibition. For
example, in our recent critical habitat designations for salmon and
steelhead, informed by a Tenth Circuit decision, we considered the
``co-extensive'' impact of designation--that is, the predicted change
in agency action as a result of critical habitat designation and the
adverse modification prohibition, even if the same change would have
occurred because of listing and the jeopardy prohibition. For the
present rulemaking, we have again predicted the co-extensive impact of
designation.
We examined the types of Federal activities that may affect
Southern Resident killer whale critical habitat. We identified three
categories of activities that may affect killer whale critical habitat
and therefore be subject to ESA section 7's adverse modification
requirement: Salmon fishing, vessel traffic, and water quality
management. Because killer whales are newly listed and we lack a
consultation history, we necessarily had to make assumptions about what
types of Federal activities might undergo section 7 consultation. We
next considered the range of modifications we might seek in these
activities to avoid adverse modification of Southern Resident killer
whale critical habitat, again making assumptions, given the lack of
consultation history. We relied on information from our proposed
conservation plan for the Southern Resident killer whales developed
under the Marine Mammal Protection Act (70 FR 57565; October 3, 2005),
comments on that plan, comments on the proposed listing determination,
and other information available to the agency to establish the types of
activities and the potential range of changes.
A draft economic report describes in detail the actions we assumed
may be affected, the potential range of changes we might seek in those
actions, and the estimate of economic impacts that might result from
such changes (NMFS, 2006b). A separate draft ESA 4(b)(2) report
describes which actions we consider more directly linked to habitat
effects than species effects, as well as our consideration of benefits
of designation versus benefits of exclusion (NMFS, 2006c). This report
also describes the likelihood of an ESA section 7 consultation
resulting in changes to each type of action. These reports are
available on the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/. We are soliciting comments on our analysis of
impacts and their potential benefits and costs.
[[Page 34578]]
Impacts of Designation Generally
To predict potential impacts of designation, we first identified
three categories of activities that may affect killer whale critical
habitat and therefore be subject to ESA section 7 consultation and the
adverse modification prohibition: Salmon fishing, vessel traffic, and
water quality management. For salmon fishing, we considered a range of
potential changes: Reductions in commercial and recreational salmon
fishing from 5 percent to 50 percent, and closures of fisheries in
different catch management areas. We could not identify a federal nexus
for a section 7 consultation on vessel traffic that would relate to the
effects of vessels on killer whale passage. (The only vessels we
identified with a section 7 nexus were U.S. vessels, such as military,
Coast Guard, etc., and ferries, which receive federal funding. However,
since these vessels do not affect the whales' ability to pass freely
among areas, we do not anticipate section 7 consultations will have any
habitat-related impacts on operations of these vessels.) For actions
related to water quality management, we considered it too speculative
to predict either the actions that might undergo ESA section 7
consultation or the types of changes we might seek.
Where possible, we allocated impacts to each particular area. For
impacts to salmon fisheries, we did allocate impacts to particular
areas but recognize that because of the migratory behavior of salmon
(in contrast to fixed habitat features), designation of any area has
the potential to affect harvest in other areas.
In considering potential impacts for each particular area, we kept
in mind certain analytical limitations resulting in part from our lack
of a consultation history: Not all activity types are equally likely to
incur changes as a result of ESA section 7 consultation; all estimates
are based on potential changes resulting from section 7 consultation,
regardless of whether the modifications are the result of the
``jeopardy'' or ``adverse modification'' prohibition of section 7;
within each activity type, estimates are based on potential changes, so
there is a wide range of estimated impacts; while some impacts are
allocated to a particular area, they could result because of other
areas being designated. Regarding the first two limitations, we have
attempted in this analysis to weigh impacts of designation according to
whether they are more or less likely to occur, and whether they are
more closely associated with jeopardy or adverse modification, as
described below.
Regarding the first limitation, we considered each of the activity
types and how likely it was that a change in a proposed Federal action
would be required as a result of ESA section 7 consultation. We
considered some changes to be ``likely'' (it is foreseeable a change
will occur in most cases); some changes to be ``potential'' (it is
foreseeable a change will occur but we currently lack data to predict
with any confidence the nature and extent of the change); or
``unlikely'' (it is foreseeable a change will not occur in most cases).
In balancing the benefits of designation against the benefits of
exclusion, we gave greater weight to changes we considered ``likely''
or ``potential'' than to changes we considered ``unlikely.''
Regarding the overlapping prohibitions of section 7 under the ESA,
we analyzed each type of activity to determine whether it directly
affects individual members of the species or affects them through a
habitat modification (that is, does the activity bear a more direct
relationship to the jeopardy or adverse modification prohibition of
section 7?). In balancing the benefits of designation against the
benefits of exclusion, we gave greater weight to changes we considered
as having a more direct relationship to adverse modification of
critical habitat and less weight to changes we considered as having a
more direct relationship to jeopardy. Table 1 summarizes the nature and
likelihood of impact for each type of activity, and Table 2 depicts the
relative weight we gave each impact as a result of these
considerations. A summary of how we assigned the likelihood, nature of
impacts, and weights follows the tables.
Table 1.--Nature and Likelihood of Impact Resulting From ESA Section 7 Consultation, by Activity Type
----------------------------------------------------------------------------------------------------------------
Essential feature
Activity type affected and nature Type of impact Likelihood of section 7
of effect impact
----------------------------------------------------------------------------------------------------------------
Fisheries.......................... --Affects prey....... Harvest reduction or Potential
--Potential to impact change in timing,
individuals and location, etc. by
habitat modification. critical habitat
area.
Harvest closure by Unlikely.
management area.
Water Quality Management-- --Affects prey....... Changes in NPDES Potential.
Contaminants. --Stronger connection standards.
to habitat
modification.
Changes in sewer and Potential.
stormwater runoff
standards.
Water Quality Management--Oil --Affects water Changes in oil spill Unlikely.
Spills. quality. regulations.
--Stronger connection
to impact on
individuals.
----------------------------------------------------------------------------------------------------------------
Table 2.--Impact of Designation--Relative Weights for Each Type of Activity
[Greatest Weight at Top Left of the Matrix, Least Weight at Bottom Right]
----------------------------------------------------------------------------------------------------------------
Likely (high
weight) Potential Unlikely
----------------------------------------------------------------------------------------------------------------
Likelihood of change occurring as a result of section 7 consultation
----------------------------------------------------------------------------------------------------------------
Relationship to section 7: Adverse .................. --Water Quality
jeopardy vs. adverse modification Management
modification. (high weight). (NPDES).
--Sewer and
stormwater runoff.
Both.............. .................. --Harvest --Harvest closure
Reduction or by management
Modification. area.
[[Page 34579]]
Jeopardy.......... .................. .................. --Changes in oil
spill
regulations.
----------------------------------------------------------------------------------------------------------------
Salmon Fishing. We considered changes to salmon harvest, either
through harvest reductions or changes in timing or location of fishing
effort to be ``potential.'' The limited available information about
killer whale foraging indicates salmon are their primary prey species
(NMFS, 2006a). We are therefore likely to focus ESA section 7
consultations on actions affecting salmon abundance, particularly in
times and areas where the whales are foraging. There is presently
little direct information, however, about the interactions between
salmon harvest and foraging success of whales. Because we presently
lack information allowing us to predict the nature and extent of any
changes we might seek, we consider reductions in salmon harvest or
changes in the location and timing of harvest as ``potential'' impacts
of section 7 consultation. In contrast, we considered harvest closure
by management area ``unlikely'' because the management areas are large,
not necessarily aligned with whale foraging areas, would likely involve
species that may not be important components of the Southern Residents'
diet, and could include large numbers of fish that surpass the
nutritional requirements of the whales for some catch areas.
We considered fishing to have an equally strong connection to both
the jeopardy and the adverse modification prohibitions of ESA section
7. Salmon fishing directly affects individual members of the species by
reducing the amount of food available, and, therefore, potentially
affecting the ability of individual animals to meet their nutritional
requirements. Salmon are also one of the biological features in the
habitat essential to conservation of the whales, so fishing also
modifies critical habitat by removing prey. Because changes in
fisheries through catch reductions or changes in timing and location
are potential, and because they have a connection to both the jeopardy
and adverse modification prohibition of section 7, we gave these
potential changes a moderate weight (see Table 2). We gave area
management closures a low weight because, while they have a connection
to both the jeopardy and adverse modification prohibitions, they are
unlikely.
Water Quality Management. We considered changes in water quality
management through changes in NPDES standards or changes in sewer and
stormwater runoff standards to be ``potential.'' Presently, we lack
sufficient information about the relationships among the sources of
contaminants, their movement through the food chain, and their impact
on killer whales to determine what changes we might seek. Once we have
more information, however, we anticipate some changes may be required.
Our ability to estimate impacts of designation is also complicated by
the fact that the State of Washington has many efforts already underway
to address water quality issues (PSAT, 2005) and recently announced a
new Puget Sound Partnership initiative to restore and protect Puget
Sound. These efforts would presumably be in addition to existing
requirements under the Clean Water Act and other applicable standards.
Any new requirements imposed or efforts undertaken by the state and
local governments would alter the baseline conditions, which we use to
determine the impacts of designation. We considered changes to oil
spill regulations unlikely because we believe additional oil spill
regulations are not needed to meet section 7 requirements.
Water quality management has the potential to affect individual
Southern Residents, but is of greatest concern because it may allow
contaminants to enter the whales' habitat and food chain. When
ultimately consumed by killer whales, the contaminants can cause
injury, but the effect is through the whales' prey, an important
feature of their habitat. Once the contaminants enter the habitat, they
cause a long-lasting modification of the habitat. This modification
occurs regardless of whether the whales are present at the time of the
activity. We therefore consider this the activity with the strongest
link to the adverse modification prohibition of ESA section 7. Oil
spills have the potential to modify habitat, but are a primary concern
because of their potential to directly injure individual animals. We
considered this activity to have a stronger link to the jeopardy
prohibition of ESA section 7. Because changes to NPDES standards and
sewer and runoff standards are potential, and have a strong connection
to the adverse modification prohibition of section 7, we gave these
changes a moderate to high weight. We gave changes to oil spill
regulations a low weight because we consider such changes an unlikely
result of section 7 consultation and because such changes would be more
closely linked to jeopardy than to adverse modification.
Benefits of Designation
The primary benefit of designation is that section 7 of the ESA
requires all Federal agencies to ensure their actions are not likely to
destroy or adversely modify the designated habitat. This is in addition
to the requirement that all Federal agencies ensure their actions are
not likely to jeopardize the species' continued existence. Another
benefit of designation is that it provides notice of areas and features
important to species conservation, and information about the types of
activities that may reduce the conservation value of the habitat, which
can be effective for education and outreach. Critical habitat
designation may also trigger protection under state or local
regulations.
In addition to the direct benefits of critical habitat designation
to the killer whales, there may be ancillary benefits. These other
benefits may be economic in nature, or they may be expressed through
beneficial changes in the ecological functioning of Puget Sound. For
example, Puget Sound supports an active whale watching industry, and so
an increase in the killer whale population could increase the economic
value of that activity. Another example could be the increased
viability of Puget Sound salmon populations if their harvest is reduced
to assure a larger prey supply for killer whales. Yet another example
could be reduced levels of pollution in Puget Sound.
With sufficient information, it may be possible to monetize
benefits of critical habitat designation. For the direct benefits, this
would require us to first quantify the benefit to killer whales
expected from ESA section 7 consultation (for example, the number of
killer whales saved or the increase in their longevity, health,
productivity,
[[Page 34580]]
etc.), and then translate that benefit into dollars (for example, using
information about willingness-to-pay). For the ancillary benefits,
monetizing benefits would require quantifying the effects of critical
habitat protection to these other possible sources of benefits, and
then translating these impacts into dollars.
We are not aware of any available data that would support either
step of such an analysis for killer whales. The short statutory
timeframes and the ESA's requirement to use the best ``available''
information suggest such a costly and time-consuming approach is not
currently possible. In addition, ESA section 4(b)(2) requires us to
consider and weigh impacts other than economic impacts that are equally
difficult to monetize, such as the benefits to national security of
excluding areas from critical habitat. Given the lack of information
that would allow us either to quantify or monetize the benefits of
designation for the whales, we have determined the qualitative
conservation benefits of designating each of the three particular areas
identified as critical habitat for Southern Residents. In determining
the benefit of designation for each area, we considered a number of
factors. We took into account the physical and biological features
present in the area, the types of human activities occurring in the
area that may threaten the features, and the likelihood that
designation would lead to changes in those activities either because of
an ESA section 7 consultation or because of the educational effect of
designation. We also considered that each area is unique and supports a
distinct aspect of the whales' life history. This consideration is
described in the 4(b)(2) report supporting this proposed rule (NMFS,
2006c) and summarized below.
Area 1. This is the particular area where Southern Residents are
most frequently observed and likely the most important area for their
conservation. Whales are observed feeding, socializing, traveling and
resting in Area 1. The Strait of Juan de Fuca and the Haro and Georgia
Straits are relatively narrow channels that concentrate salmon
returning from the Pacific Ocean to spawn in U.S. and Canadian rivers.
In particular, Area 1 lies near the mouth of the Fraser River, which
has the largest salmon runs in the Georgia Basin/Puget Sound region
(Northcote and Atagi, 1997). Runs of salmon passing through the area
include Chinook, chum, coho, pink, and sockeye, which have all been
identified as prey for Southern Residents (Ford et al., 1998; Ford and
Ellis, 2005; NWFSC, unpubl. data).
Killer whales require abundant prey for successful foraging.
Designation of Area 1 as critical habitat is likely to improve the
ability of an ESA section 7 consultation to focus on salmon abundance
as an essential biological feature of the whales' habitat. It is also
likely to improve the ability of a section 7 consultation to affect
water quality management activities, though we have little information
at this time to predict what those actions may be and how such actions
may be changed as a result of section 7 consultation.
There is little likelihood that an ESA section 7 consultation would
affect vessel traffic in Area 1, but we believe critical habitat
designation may provide significant conservation benefits to killer
whales, particularly in Area 1 because of its educational value for the
large numbers of boaters and whale watchers. If we can highlight that
the area is ``critical habitat'' for the whales, it will strengthen the
messages to boaters about operating their vessels responsibly in the
area. Table 3 illustrates the various factors we considered in weighing
the benefit of designation for Area 1.
Table 3.--Benefit of Designation for Area 1
----------------------------------------------------------------------------------------------------------------
Frequency/ Weights of
PCEs Threats Importance of impacts based on Likelihood of education
threats Table 2 benefits
----------------------------------------------------------------------------------------------------------------
Water quality................. Oil spills....... High............. Low.............
Prey.......................... Water quality.... Moderate......... Mod-High........
Fishing.......... High............. Moderate........
Passage....................... Physical presence High............. ................ High.
of vessels.
----------------------------------------------------------------------------------------------------------------
Area 2. Southern Resident killer whales have been seen in parts of
Area 2 in all seasons, but they use Area 2 more in the fall than in the
summer. They likely move into this area to take advantage of chum and
Chinook runs as their occurrence in the area has been correlated with
fall salmon runs. Feeding has been observed in Area 2 (NWFSC, unpubl.
data), although few behavioral studies have been conducted in this
area. The J pod in particular expands into this area in the fall
(Osborne, 1999), and a fall chum run has been suggested as the likely
reason for an extended presence of members of L pod in Dyes Inlet
during October and November of 1997.
Area 2 may be less important than Area 1 to killer whale
conservation. There are fewer sightings of whales in this area,
particularly south of the Tacoma Narrows bridge, and salmon stocks are
not as abundant as in Area 1. Nevertheless, late salmon runs appear to
provide needed prey during the fall, particularly for J pod. As with
designation of Area 1, designation of Area 2 as critical habitat is
likely to improve the ability of an ESA section 7 consultation to focus
on salmon abundance as a habitat feature. It may also improve the
ability of a section 7 consultation to affect water quality management
activities. Though we have little information at this time to predict
what those actions may be and how they may be changed as a result of
section 7 consultation, it is clear that water quality in Area 2 is the
most impaired of all three areas.
There is little likelihood that a section 7 consultation would
affect vessel traffic in Area 2, but we believe critical habitat
designation may provide some conservation benefits to killer whales in
this area because of its educational value for boaters. Interference
with the whales from vessels is not as great a concern in Area 2 as in
Area 1, but it is still an important concern because of the large
number of recreational vessels in this area and the potential for
disturbance. Table 4 illustrates the various factors we considered in
weighing the benefit of designation for Area 2.
[[Page 34581]]
Table 4.--Benefit of Designation for Area 2
----------------------------------------------------------------------------------------------------------------
Frequency/ Weights of
PCEs Threats Importance of impacts based on Likelihood of education
threats Table 2 benefits
----------------------------------------------------------------------------------------------------------------
Water quality................. Oil spills....... High............. Low.............
Prey.......................... Water quality.... High............. Mod-High........
Fishing.......... High............. Moderate........
Passage....................... Physical presence Moderate......... ................ Moderate.
of vessels.
----------------------------------------------------------------------------------------------------------------
Area 3. Area 3 provides needed passage for Southern Residents from
the interior waters of Puget Sound to coastal waters. Although the
whales may also feed as they transit this area, the most important
habitat feature of this area is passage. Sightings of the Southern
Residents in Area 3 are limited, particularly on the U.S. side of the
international boundary as there is little observation effort in the
area, particularly to the west near the Bonilla Point/Tatoosh Island
line. Even with a small number of actual sightings we can infer that
the whales are using this corridor and the passage is an essential
feature of Area 3 based on the inland and coastal sightings of whales.
The Strait of Juan de Fuca is not the only transit corridor between
inland waters and coastal British Columbia; the whales occasionally use
the Strait of Georgia and Johnstone Strait in Canadian waters as an
alternate route.
It is difficult to compare the importance of this area to Areas 1
and 2 because the whales use the areas for different activities.
Designation of Area 3 as critical habitat may provide less benefit than
designation of Areas 1 or 2. It may improve the ability of a section 7
consultation to affect water quality management activities, though we
have little information at this time to predict what those actions may
be and how they may be changed as a result of section 7 consultation.
Water quality in Area 3 is the least impaired of all three areas.
Although there are limited observations in this area, it appears that
the Southern Residents do not stop and feed here, but primarily use
this area for transit. Table 5 illustrates the various factors we
considered in weighing the benefit of designation for Area 3.
Table 5.--Benefit of Designation for Area 3
----------------------------------------------------------------------------------------------------------------
Frequency/ Weights of
PCEs Threats Importance of impacts based on Likelihood of education
threats Table 2 benefits
----------------------------------------------------------------------------------------------------------------
Water quality................. Oil spills....... High............. Low.............
Prey.......................... Water quality.... Moderate......... Mod-High........
Fishing.......... Moderate......... Moderate........
Passage....................... Physical presence Low.............. ................ Low.
of vessels.
----------------------------------------------------------------------------------------------------------------
Determining the Benefits of Excluding Particular Areas and Balancing
the Benefits of Designation Against the Benefits of Exclusion
Section 4(b)(2) of the ESA calls for balancing the benefits of
designation against the economic, national security, and other benefits
of exclusion. We recognize that, in reality, excluding an area from
designation will not likely avoid all of the impacts we considered,
because the ESA section 7 requirement regarding jeopardy still applies,
just as designating an area provides protection that overlaps with that
afforded by the section 7 jeopardy prohibition. To determine the
benefits of excluding particular areas, we considered the previously-
discussed Federal activities that could be changed as a result of a
section 7 consultation and application of the adverse modification
prohibition. We considered changes to those actions that could
potentially be required to avoid adversely modifying critical habitat,
regardless of whether the changes could also potentially be required to
avoid jeopardizing the whales' continued existence. We also considered
economic benefits of excluding each of the three ``particular'' areas
and considered national security benefits of excluding the 18
``particular'' areas delineated based on military ownership or control.
ESA section 4(b)(2) calls for balancing the benefits that are not
directly comparable--the benefit associated with species conservation
balanced against the economic benefit, benefit to national security, or
other relevant benefit that results if an area is excluded from
designation. ESA section 4(b)(2) does not specify a method for the
weighing process. Agencies are frequently required to balance benefits
of regulations against impacts; Executive Order (E.O.) 12866
established this requirement for Federal agency regulation. Ideally
such a balancing would involve first translating the benefits and
impacts into a common metric. Executive branch guidance from the Office
of Management and Budget (OMB) suggests that benefits should first be
monetized (converted into dollars). Benefits that cannot be monetized
should be quantified. Where benefits can be neither monetized nor
quantified, agencies are to describe the expected benefits (U.S. Office
of Management and Budget, Circular A-4, September 17, 2003 (OMB,
2003)).
Economic Impacts (Economic Benefits of Exclusion)
A draft economic report describes in detail the actions we assumed
may be affected, the potential range of changes we might seek in those
actions, and the estimate of economic impacts that might result from
such changes. We considered a range of potential modifications to
fishing in Puget Sound (described above) and developed an expected
direct cost for changes at each end of the range as well as in some
cases for intermediate points within the range. We considered it too
speculative at this time to postulate likely consultations on water
quality management actions, and what changes we might seek in those
actions. The results of our analysis are contained in a draft economic
report (NMFS, 2006b) supporting this proposed rule and are summarized
below. Although the range of potential impacts is large, we consider it
unlikely that the extreme ends of the range will be achieved. The
extreme ends of the range (for all impacts in a category) assume that
every project or action
[[Page 34582]]
consulted on would have the lowest or highest possible cost for that
type of action. This outcome is highly unlikely, as projects are likely
to have a distribution of costs within the low-high range. Further,
because we lack information on the likely distribution of costs across
projects, we believe it is reasonable to construct a range of costs for
each area.
Regarding impacts from changes to water quality management
activities, we are aware of many of the programs currently in place to
restore and protect Puget Sound (PSAT, 2005), and we intend to
coordinate with the State of Washington and other Federal agencies
between the publication of this proposed rule and the final rule, to
obtain better information on current and proposed programs. We will use
this information to account for any changes in State programs or
requirements that may alter the baseline conditions and to better
estimate economic impacts of designation for the final rule.
Tables 6 through 8 illustrate the potential range of economic
benefits of exclusion for each area, both by activity category and by
total for the area. For activity categories where there were two
mutually exclusive options, we selected the more likely option. Thus,
for salmon fishing, the more likely option is harvest reduction or
changes in area and timing, rather than closure of management areas.
The tables also display the weight we gave each activity, which is
relevant to our consideration of costs for each area. As described in
the draft economics report (NMFS 2006c), the total range of estimated
economic impacts for this proposed designation is $1,007,000-
$10,071,000. (This number is slightly lower than the sum of the impacts
shown in Tables 6-8 due to rounding.)
Table 6.--Economic Benefit of Exclusion for Area 1
[in $1,000s]
----------------------------------------------------------------------------------------------------------------
Activity type Type of impact Weight Range
----------------------------------------------------------------------------------------------------------------
Salmon Fisheries...................... Harvest reduction or change in Moderate................ 305-3,055
timing or location.
Water Quality Management.............. NPDES standards............... Moderate-High........... NA
Sewer and stormwater runoff... Moderate-High........... NA
Oil spills.................... Low..................... 0
-------------------------------------------------------------------------
Total............................. .............................. ........................ 305-3,055
----------------------------------------------------------------------------------------------------------------
Table 7.--Economic Benefit of Exclusion for Area 2
[in $1,000s]
----------------------------------------------------------------------------------------------------------------
Activity type Type of impact Weight Range
----------------------------------------------------------------------------------------------------------------
Salmon Fisheries...................... Harvest reduction or change in Moderate................ 466-4,660
timing or location.
Water Quality Management.............. NPDES standards............... Moderate-High........... NA
Sewer and stormwater runoff... Moderate-High........... NA
Oil spills.................... Low..................... 0
-------------------------------------------------------------------------
Total............................. .............................. ........................ 466-4,660
----------------------------------------------------------------------------------------------------------------
Table 8.--Economic Benefit of Exclusion for Area 3
[in $1,000s]
----------------------------------------------------------------------------------------------------------------
Activity type Type of impact Weight Range
----------------------------------------------------------------------------------------------------------------
Salmon Fisheries...................... Harvest reduction or change in Moderate................ 236-2,357
timing or location.
Water Quality Management.............. NPDES standards............... Moderate-High........... NA
Sewer and stormwater runoff... Moderate-High........... NA
Oil spills.................... Low..................... 0
-------------------------------------------------------------------------
Total............................. .............................. ........................ 236-2,357
----------------------------------------------------------------------------------------------------------------
Section 4(b)(2) of the ESA requires that we balance the benefit of
designation against the economic benefit of exclusion for each
particular area. The co-extensive benefit to the species of designation
depends upon the inherent conservation value of the area, the
seriousness of the threats to that conservation value, and the extent
to which an ESA section 7 consultation or the educational aspects of
designation will address those threats. If a threat bears a closer
relationship to the adverse modification prohibition of section 7, we
can begin to understand and give weight to the incremental benefit of
designation beyond the protection provided by listing and the jeopardy
prohibition. We have identified the threats that face each area and the
likelihood that the adverse modification prohibition will enhance our
ability to address those threats.
We listed the whales as endangered, citing, among other reasons,
``the ongoing and potentially changing nature of pervasive threats, in
particular, disturbance from vessels, the persistence of legacy toxins
and the addition of new ones into the whales' environment, and the
potential limits on prey availability (primarily salmon) given
uncertain future ocean conditions.'' As described above, designation of
critical habitat will enhance our ability to address some of these
threats, either through an ESA section 7 consultation or through
ongoing public outreach and education. Because some of these threats
bear a stronger relationship to adverse modification than to jeopardy,
we also believe there is an incremental benefit of designation beyond
the protection afforded by the jeopardy prohibition.
The benefit of designation also depends on the inherent
conservation value of the area. The habitat areas for these killer
whales are unique and irreplaceable. It is difficult to separate the
value of any one of the areas: each of the three areas supports a
distinct aspect of the whales' life history, and the conservation
function of each area complements the conservation function of the
others. Therefore, designation of each particular area benefits the
[[Page 34583]]
conservation function of the other areas. For all of the reasons
discussed above, we consider the benefit of designation of each area to
be high.
The benefit of exclusion of an area depends on some of the same
factors--the likelihood of an ESA section 7 consultation and the extent
to which an activity is likely to change as a result of that
consultation. As with the benefit of designation side of the equation,
if a threat bears a closer relationship to the adverse modification
prohibition of section 7, we can begin to understand and give weight to
the incremental cost of designation (benefit of exclusion) beyond the
cost associated with listing and the jeopardy prohibition. In balancing
the potential costs of designation, we also considered the nature of
the threats and the relevance of section 7's adverse modification
prohibition to each threat. Because adverse modification and jeopardy
bear an equally strong relationship to fishing, and because some
changes in fishing are likely as a result of consultation, we gave
these costs of designation moderate weight. We recognize that adverse
modification bears the strongest relationship to water quality
management, but we presently lack sufficient data to estimate an
economic impact. We also recognize that we have not monetized
(quantified) the costs that may be associated with the education
benefit of designation with respect to vessel traffic.
We conclude that the economic benefits of excluding each particular
area do not outweigh the conservation benefits of designating each
particular area as critical habitat, given the endangered status of the
whales, the uniqueness of the habitat, the fact that threats to habitat
were a primary concern leading to our endangered finding, and the fact
that designation will enhance the ability of an ESA section 7
consultation to protect the habitat.
We will seek further information, including public comment and
information from other Federal agencies, on important and relevant
aspects of this economic analysis to better understand economic impacts
before a final designation. These include a better understanding of the
potential impacts of designation on water quality management
activities.
Impacts on National Security
Prior to listing Southern Resident killer whales under the ESA, we
contacted the DoD by letter and identified 18 military sites,
previously addressed during salmon and steelhead habitat designations,
that potentially overlapped with areas under consideration for Southern
Resident killer whale critical habitat: (1) Naval Undersea Warfare
Center, Keyport; (2) Naval Ordnance Center, Port Hadlock (Indian
Island); (3) Naval Fuel Depot, Manchester; (4) Naval Air Station,
Whidbey Island; (5) Naval Station Everett; (6) Naval Hospital
Bremerton; (7) Fort Lewis (Army); (8) Pier 23 (Army); (9) Puget Sound
Naval Ship Yard; (10) Strait of Juan de Fuca naval air-to-surface
weapon range, restricted area; (11) Strait of Juan de Fuca and Whidbey
Island naval restricted areas; (12) Admiralty Inlet naval restricted
area; (13) Port Gardner Naval Base restricted area; (14) Port Orchard
Passage naval restricted area; (15) Sinclair Inlet naval restricted
area; (16) Carr Inlet naval restricted area; (17) Port Townsend/Indian
Island/Walan Point naval restricted area; and (18) Crescent Harbor
Explosive Ordnance Units Training Area.
These 18 sites overlap with areas we found to meet the definition
of critical habitat for the Southern Resident killer whale DPS. These
sites include shore-based facilities and offshore areas in Puget Sound
where the Navy has security restrictions. Because of mapping
imprecision, we cannot determine the extent to which the shore-based
facilities may extend into 20-foot (6.1 m) deep waters of Puget Sound,
and, therefore, the exact amount of overlap with proposed killer whale
critical habitat. There are, however, sites that clearly include waters
deeper than 20 feet (6.1 meters). The 18 sites, including open marine
areas associated with these sites, cover approximately 112 square miles
(291 sq km) out of the total 2,676 square miles (6,931 sq km) under
consideration as critical habitat for Southern Residents. The shore-
based sites cover 81 miles (130 km) of shoreline out of the total 2,081
miles (3,349 km) of shoreline in the proposed critical habitat areas.
The DoD confirmed that the 18 sites are owned or controlled by the
DoD, identified the types of military activities that take place in the
areas, and provided an assessment as to whether designation of critical
habitat would affect military readiness. The Army and Navy concluded
that critical habitat designation at any of these sites would likely
impact national security by diminishing military readiness. The DoD
requested that we consider conducting an ESA section 4(b)(2) analysis
to determine whether all of the sites could be excluded from
designation because the benefits of exclusion outweigh the benefits of
designation. The possible impacts to national security include:
preventing, restricting, or delaying training or testing exercises or
access to sites; restricting or delaying activities associated with
vessel/facility maintenance and ordnance loading; and delaying response
times for ship deployments and overall operations.
The benefit of excluding these particular areas is that the Navy
would only be required to comply with the jeopardy prohibition of ESA
section 7(a)(2) and not the adverse modification prohibition. The Navy
maintains that the additional commitment of resources in completing an
adverse modification analysis, and any change in its activities to
avoid adverse modification of critical habitat, would likely reduce its
readiness capability. Given that the Navy is currently actively engaged
in training, maintaining, and deploying forces in the current war
effort, this reduction in readiness could reduce the ability of the
military to ensure national security.
We assessed the benefit of designating these areas of overlap based
on: the physical or biological features of each area, the Southern
Residents' use of each area (including how frequently they are
present), the Federal activities in each area that might trigger an ESA
section 7 consultation, the likelihood that we would seek a
modification of those activities, and the strength of the connection
between those activities and habitat modification. The benefit of
designation is that the section 7 requirement regarding adverse
modification would focus our section 7 consultations on essential
physical and biological features of the whales' habitat, particularly
where the Federal activity has a more direct impact on habitat features
and a less direct impact on individual killer whales.
We considered the overlap of killer whale habitat within the
boundaries of military sites; the conservation value of that habitat;
and the types of Federal activities in those areas that would likely
undergo ESA section 7 consultation. We also considered the high
priority placed on national security, the potential for critical
habitat designation to have some impact on military readiness, and the
fact that, collectively, these areas represent relatively small
percentages of the total habitat and none of them are located in Area
1, the core summer area. Based on our consideration of these factors,
we concluded that the national security benefits of exclusion outweigh
the conservation benefits of designation for each of the 18 sites, and
we are not proposing to designate these DoD sites as critical habitat.
[[Page 34584]]
Other Relevant Impacts
We did not identify other relevant impacts of designation beyond
economic impacts and impacts on national security. In this proposed
rule, we are seeking information on such impacts.
Critical Habitat Designation
We are proposing to designate approximately 2,564 square miles
(6,641 km) of marine habitat within the area occupied by Southern
Resident killer whales in Washington. Although areas with water less
than 20 feet (6.1 meters) deep are not proposed for critical habitat,
these shallow areas have not been subtracted from the estimate of
square mileage, so it is an overestimate. The proposed areas are
occupied and contain physical or biological features that are essential
to the conservation of the species and that may require special
management considerations or protection. Some of these areas overlap
with military sites, which are not proposed for designation because
they were determined to have national security impacts that outweigh
the benefit of designation and are therefore being excluded under ESA
section 4(b)(2). We determined that the economic benefits of exclusion
of any of the areas do not outweigh the benefits of designation, and we
are therefore not proposing to exclude any areas based on economic
impacts. Section 4(b)(2) does not allow the agency to exclude areas if
exclusion will result in extinction of the species. We are recommending
exclusion of only a small percentage of the whales' habitat because of
impacts to national security. Given this small percentage, we conclude
that the exclusion of these areas will not result in extinction of the
Southern Resident killer whale DPS. No unoccupied areas are currently
proposed for designation of critical habitat.
Public Comments Solicited
We request that interested persons submit comments, information,
maps, and suggestions concerning this proposed rule during the comment
period (see DATES). We are soliciting comments or suggestions from the
public, other concerned governments and agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. Comments particularly are sought concerning:
(1) Maps and specific information describing the amount,
distribution, and use type (e.g., feeding, migration, resting) of
Southern Resident killer whales in inland and coastal waters, including
shallow areas with less than 20 feet (6.1 m) of water;
(2) Information on the identification, location, and quality of
physical or biological features which may be essential to the
conservation of Southern Resident killer whales, including information
on sound as a PCE;
(3) Information regarding potential impacts of designating any
particular area, including the types of Federal activities that may
trigger an ESA section 7 consultation and the possible modifications
that may be required of those activities as a result of section 7
consultation. In particular, we are seeking information on water
quality management activities that may trigger section 7 consultation,
potential modifications of those activities, and estimated costs of
those modifications;
(4) Information regarding the benefits of designating any
particular area of the proposed critical habitat;
(5) Information regarding the benefits of excluding particular
areas from the critical habitat designation;
(6) Current or planned activities in the areas proposed for
designation and their possible impacts on proposed critical habitat;
and
(7) Any foreseeable economic or other potential impacts resulting
from the proposed designations.
You may submit your comments and materials concerning this proposal
by any one of several methods (see ADDRESSES). The proposed rule, map,
fact sheets, references, and other materials relating to this proposal
can be found on the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/. We will consider all comments and information
received during the comment period in preparing the final rule.
Accordingly, the final decision may differ from this proposal.
Public Hearings
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at
least one public hearing if any person requests one within 45 days of
publication of a proposed rule to designate critical habitat. Such
hearings provide the opportunity for interested individuals and parties
to give comments, exchange information and opinions, and engage in a
constructive dialogue concerning this proposed rule. We encourage the
public's involvement in such ESA matters. Based on the level of public
interest in Southern Resident killer whales, public meetings have been
scheduled for July 12, 2006, 7-9 p.m., at the Seattle Aquarium,
Seattle, WA and for July 13, 2006, 7-9 p.m., at the Whale Museum,
Friday Harbor, WA. Requests for additional public hearings must be made
in writing (see ADDRESSES) by July 31, 2006.
Peer Review
OMB issued its Final Information Quality Bulletin for Peer Review
on December 16, 2004. The Bulletin went into effect June 16, 2005, and
generally requires that all ``influential scientific information''
disseminated on or after that date be peer reviewed. A scientific
document supports this proposal to designate critical habitat for
Southern Resident killer whales--a draft Biological Report (NMFS,
2006a), which is available on our Web site (see ADDRESSES). We obtained
independent peer review of this document and incorporated the peer
review comments into the document prior to its dissemination in support
of this rulemaking. A draft Economic Analysis (NMFS, 2006b) that
supports the proposal to designate critical habitat for Southern
Resident killer whales was also peer reviewed and is available on our
Web site (see ADDRESSES).
Required Determinations
Regulatory Planning and Review
We have determined this proposed rule to be significant for
purposes of E.O. 12866. A draft economic report and ESA section 4(b)(2)
report document our consideration of alternatives to rulemaking as
required by this E.O.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). We have prepared an
initial regulatory flexibility analysis, which is part of the draft
Economic Analysis and available on our Web site (NMFS, 2006b). The
analysis is summarized below.
A description of the reasons why this action is being considered,
as well as a statement of the objectives of, and legal basis for, this
proposed rule is provided earlier in the preamble and is not repeated
here. This proposed rule will not impose any recordkeeping or reporting
requirements and will not duplicate, overlap, or conflict with any
other laws or regulations.
[[Page 34585]]
At the present time, insufficient information exists regarding the
cost structure and operational procedures and strategies in the sectors
that may be directly impacted by the potential critical habitat
designation. Further, significant uncertainty exists regarding the
activities that may trigger an ESA section 7 consultation or how those
activities may be modified as a result of consultation. Bearing in mind
these limitations, we considered which of the potential economic
impacts we analyzed might affect small entities. These estimates should
not be considered exact estimates of the impacts of potential critical
habitat to individual businesses.
There are 344 entities engaged in fishing activities in the region,
332 of which are considered ``small entities.'' Assuming reductions in
catch, the annual impact across all regulated fishers may range from $1
million for a 5 percent reduction in catch to $10.1 million for a 50
percent reduction. Closing particular catch areas would have impacts
ranging from $29,000 to $7.1 million, depending on the Catch Area
closed.
Although ESA section 7 consultations may also occur on water
quality management activities, at this time it is too speculative to
estimate the type and number of activities and the potential
modifications that could result from a consultation.
The RFA, as amended by SBREFA, requires us to consider alternatives
to the proposed regulation that will reduce the impacts to small
entities. We considered and rejected the alternative of not designating
critical habitat for Southern Resident killer whales because such an
approach does not meet the legal requirements of the ESA. We also
rejected an alternative in which some or all of the critical habitat
areas are excluded under the section 4(b)(2) authority because we did
not find that the economic benefits of exclusion outweigh the
conservation benefits of designation.
E.O. 13211
On May 18, 2001, the President issued an E.O. on regulations that
significantly affect energy supply, distribution, and use. E.O. 13211
requires agencies to prepare Statements of Energy Effects when
undertaking any action that promulgates or is expected to lead to the
promulgation of a final rule or regulation that (1) is a significant
regulatory action under E.O. 12866 and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
We have considered the potential impacts of this action on the
supply, distribution, or use of energy and find the designation of
critical habitat will not have impacts that exceed the thresholds
identified above (NMFS, 2006b).
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, NMFS makes the
following findings:
(a) This proposed rule will not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute or
regulation that would impose an enforceable duty upon state, local,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to state,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the state, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement.) ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.'' The designation of critical habitat does
not impose a legally binding duty on non-Federal government entities or
private parties. Under the ESA, the only regulatory effect is that
Federal agencies must ensure that their actions do not destroy or
adversely modify critical habitat under section 7. While non-Federal
entities which receive Federal funding, assistance, permits or
otherwise require approval or authorization from a Federal agency for
an action may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Furthermore, to the extent that non-Federal entities are indirectly
impacted because they receive Federal assistance or participate in a
voluntary Federal aid program, the Unfunded Mandates Reform Act would
not apply; nor would critical habitat shift the costs of the large
entitlement programs listed above to state governments.
(b) Due to the prohibition against take of this species both within
and outside of the designated areas, we do not anticipate that this
proposed rule will significantly or uniquely affect small governments.
As such, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630, the proposed rule does not have
significant takings implications. A takings implication assessment is
not required. The designation of critical habitat affects only Federal
agency actions. Private lands do not exist within the proposed critical
habitat and therefore would not be affected by this action.
Federalism
In accordance with E.O. 13132, this proposed rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of Commerce policies, we request
information from, and will coordinate development of this proposed
critical habitat designation with, appropriate state resource agencies
in Washington. The proposed designation may have some benefit to state
and local resource agencies in that the areas essential to the
conservation of the species are more clearly defined, and the PCEs of
the habitat necessary for the survival of the Southern Resident killer
whales are specifically identified. While making this definition and
identification does not alter where and what federally sponsored
activities may occur, it may assist local governments in long-range
planning (rather than waiting for case-by-case ESA section 7
consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988, the Department of Commerce has
determined that this proposed rule does not unduly burden the judicial
system
[[Page 34586]]
and meets the requirements of sections 3(a) and 3(b)(2) of the E.O. We
are proposing to designate critical habitat in accordance with the
provisions of the ESA. This proposed rule uses standard property
descriptions and identifies the PCEs within the designated areas to
assist the public in understanding the habitat needs of Southern
Resident killer whales.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. This proposed rule will not impose recordkeeping or
reporting requirements on state or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act of 1969 (NEPA)
NMFS has determined that an environmental analysis as provided for
under NEPA for critical habitat designations made pursuant to the ESA
is not required. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995), cert. denied, 116 S.Ct. 698 (1996).
Government-to-Government Relationship With Tribes
The long-standing and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights. E.O.
13175--Consultation and Coordination with Indian Tribal Governments--
outlines the responsibilities of the Federal Government in matters
affecting tribal interests.
None of the proposed critical habitat occurs on tribal lands.
However, proposed critical habitat does overlap with Usual and
Accustomed hunting and fishing grounds. The proposed designation of
critical habitat for Southern Resident killer whales has the potential
to affect tribal trust resources, particularly in relation to salmon,
an important tribal resource and PCE for the whales. We will continue
to consult with affected tribes regarding this proposal to designate
critical habitat.
References Cited
A complete list of all references cited in this rulemaking can be
found on our Web site at http://www.nwr.noaa.gov/ and is available upon
request from the NMFS office in Seattle, Washington (see ADDRESSES.)
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: June 7, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, we propose to amend part
226, title 50 of the Code of Federal Regulations as set forth below:
PART 226--[AMENDED]
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
2. Add Sec. 226.206, to read as follows:
Sec. 226.206 Critical habitat for the Southern Resident killer whale
(Orcinus orca).
Critical habitat is designated for the Southern Resident killer
whale as described in this section. The textual descriptions of
critical habitat in this section are the definitive source for
determining the critical habitat boundaries. The overview map is
provided for general guidance purposes only, and not as a definitive
source for determining critical habitat boundaries.
(a) Critical Habitat Boundaries. Critical habitat includes three
specific marine areas of Puget Sound, Washington, within the following
counties: Clallam, Jefferson, King, Kitsap, Island, Mason, Pierce, San
Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical habitat
includes all waters deeper than 20 feet (6.1 m) relative to a
contiguous shoreline delimited by the line of extreme high water in
each of the following areas:
(1) Summer Core Area: All U.S. marine waters in Whatcom and San
Juan counties; and all marine waters in Skagit County west and north of
the Deception Pass Bridge (Highway 20) (48[deg]24' 25'' N./
122[deg]38'35'' W.)
(2) Puget Sound Area: All marine waters in Island County east and
south of the Deception Pass Bridge (Highway 20) (48[deg]24' 25'' N./
122[deg]38'35'' W.), and east of a line connecting the Point Wilson
Lighthouse (48[deg]8'39'' N./122[deg]45'12'' W.) and a point on Whidbey
Island located at 48[deg]12'30'' N./122[deg]44'26'' W.; all marine
waters in Skagit County east of the Deception Pass Bridge (Highway 20)
(48[deg]24'25'' N./122[deg]38'35'' W.); all marine waters of Jefferson
County east of a line connecting the Point Wilson Lighthouse
(48[deg]8'39'' N./122[deg]45'12'' W.) and a point on Whidbey Island
located at latitude 48[deg]12'30'' N./122[deg]44'26'' W., and north of
the Hood Canal Bridge (Highway 104) (47[deg]51'36'' N./122[deg]37'23''
W.); all marine waters in eastern Kitsap County east of the Hood Canal
Bridge (Highway 104) (47[deg]51'36'' N./122[deg]37'23'' W.); all marine
waters (excluding Hood Canal) in Mason County; and all marine waters in
King, Pierce, Snohomish, and Thurston counties.
(3) Strait of Juan de Fuca Area: All U.S. marine waters in Clallam
County east of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N./124[deg]43'32'' W.), Tatoosh Island, Washington
(48[deg]23'30'' N./124[deg]44'12'' W.), and Bonilla Point, British
Columbia (48[deg]35'30'' N./124[deg]43'00'' W.); all marine waters in
Jefferson and Island counties west of the Deception Pass Bridge
(Highway 20) (48[deg]24'25'' N./122[deg]38'35'' W.), and west of a line
connecting the Point Wilson Lighthouse (48[deg]8'39'' N./
122[deg]45'12'' W.) and a point on Whidbey Island located at
48[deg]12'30'' N./122[deg]44'26'' W.
(b) An overview map of proposed critical habitat for Southern
Resident killer whales follows.
[[Page 34587]]
[GRAPHIC] [TIFF OMITTED] TP15JN06.055
[[Page 34588]]
(c) Primary Constituent Elements. The primary constituent elements
essential for conservation of the Southern Resident killer whales are:
(1) Water quality to support growth and development;
(2) Prey species of sufficient quantity, quality and availability
to support individual growth, reproduction and development, as well as
overall population growth; and
(3) Passage conditions to allow for migration, resting, and
foraging.
(d) Sites owned or controlled by the Department of Defense.
Critical habitat does not include the following areas owned or
controlled by the Department of Defense, or designated for its use, in
the State of Washington:
(1) Naval Undersea Warfare Center, Keyport;
(2) Naval Ordnance Center, Port Hadlock (Indian Island);
(3) Naval Fuel Depot, Manchester;
(4) Naval Air Station, Whidbey Island;
(5) Naval Station, Everett;
(6) Naval Hospital Bremerton;
(7) Fort Lewis (Army);
(8) Pier 23 (Army);
(9) Puget Sound Naval Ship Yard;
(10) Strait of Juan de Fuca naval air-to-surface weapon range,
restricted area;
(11) Strait of Juan de Fuca and Whidbey Island naval restricted
areas;
(12) Admiralty Inlet naval restricted area;
(13) Port Gardner Naval Base restricted area;
(14) Port Orchard Passage naval restricted area;
(15) Sinclair Inlet naval restricted area;
(16) Carr Inlet naval restricted area;
(17) Port Townsend/Indian Island/Walan Point naval restricted area;
and
(18) Crescent Harbor Explosive Ordnance Units Training Area.
[FR Doc. 06-5439 Filed 6-14-06; 8:45 am]
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