[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69054-69070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9453]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 060228057-6283-02; I.D. 022206D]
RIN 0648-AU38
Endangered and Threatened Species; Designation of Critical
Habitat for Southern Resident Killer Whale
AGENCY: National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a
final rule designating critical habitat for the Southern Resident
killer whale (Orcinus orca) distinct population segment (DPS). Three
specific areas are designated, (1) the Summer Core Area in Haro Strait
and waters around the San Juan Islands; (2) Puget Sound; and (3) the
Strait of Juan de Fuca, which comprise approximately 2,560 square miles
(6,630 sq km) of marine habitat. We considered the economic impacts and
impacts to national security, and concluded the benefits of exclusion
of 18 military sites, comprising approximately 112 square miles (291 sq
km), outweighed the benefits of inclusion because of national security
impacts.
We solicited comments from the public on all aspects of the
proposed rule. An economic analysis, biological report, and Endangered
Species Act (ESA) report were available for comment along with the
proposed rule. The supporting documents have been finalized in support
of the final critical habitat designation.
DATES: This rule becomes effective December 29, 2006.
ADDRESSES: The final rule, maps, and supporting documents used in
preparation of this final rule, as well as comments and information
received, are available on the NMFS Northwest Region website 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 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. Critical
habitat for Southern Residents was proposed on June 15, 2006 (71 FR
34571).
Killer Whale Natural History
Three distinct forms of killer whales, termed residents,
transients, and offshores, are recognized in the northeastern Pacific
Ocean. 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). Resident killer whales are fish eaters and live in stable
matrilineal pods. 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, 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.
Detailed information on the natural history of Southern Residents
is included in the Proposed Conservation Plan for Southern Resident
Killer Whales (Orcinus orca) available at http://www.nwr.noaa.gov/ and
was summarized in the biological report and the proposed rule to
designate critical habitat (71 FR 34571; June 15, 2006).
Summary of Comments and Responses
We requested comments on the proposed rule to designate critical
habitat for Southern Resident killer whales (71 FR 34571; June 15,
2006). To facilitate public participation, the proposed rule was made
available on our regional web page and comments were accepted via
standard mail, e-mail, and through the Federal eRulemaking portal. In
addition to the proposed rule, several draft documents supporting the
proposal, including a biological report, an economic report, and a
report supporting NMFS' conclusions under Section 4(b)(2) of the ESA,
were posted. We obtained independent peer review of the draft
biological report (NMFS, 2006a) and draft Economic Analysis (NMFS,
2006b) and incorporated the peer review comments into the documents
prior to dissemination in support of the proposed rule. Two public
hearings were held on July 12, 2006, in Seattle and July 13, 2006, in
Friday Harbor, WA, and the public comment period closed on August 14,
2006.
We have considered all public comments, and they are addressed in
the following summary. We have assigned comments to major issue
categories and, where appropriate, have combined similar comments.
Physical or Biological Features Essential for Conservation (Primary
Constituent Elements)
Comment 1: In our proposed listing determination for killer whales,
we identified potential Primary Constituent Elements (PCEs) of critical
habitat, including ``Sound levels that do not exceed thresholds that
inhibit communication or foraging activities or result in temporary or
permanent hearing loss.'' Many commenters expressed concern that the
proposed critical habitat designation did not include sound as a PCE.
These commenters pointed out that killer
[[Page 69055]]
whales rely on sound to navigate, forage, mate, avoid predators, and
communicate with one another. One commenter noted research findings
that vessel effects and acoustic disturbance are stressors on killer
whales. Another commenter pointed to study findings that suggest killer
whales abandon certain habitats when confronted with introduced noise.
These commenters argued that NMFS should consider sound an element of
the physical environment of water, just as NMFS considers water
quality, prey, and passage habitat conditions. Commenters pointed out
that underwater, sound travels farther than above water, and,
therefore, should be considered differently. Others pointed out that
sound is a commonly accepted pollutant, and should be treated as such
in the critical habitat designation. They also pointed to the inclusion
of sound as a concern in NMFS' proposed Conservation Plan for Southern
Residents and the 2004 Status Review. The commenters were particularly
concerned with the impact of military sonar in Puget Sound on Southern
Residents. Several commenters also mentioned the 2003 USS Shoup
incident that reportedly affected Southern Resident behavior in the
Sound as evidence of the harmful impacts of military sonar in the
Sound. Other commenters focused on ambient noise and the noise from
specific projects underway in the Sound as concerns for Southern
Residents. They felt that excluding sound as a PCE would allow these
activities to continue unmonitored for sound levels. One commenter
argued that NMFS should extend critical habitat to the shoreline to
prevent the impacts of noise related to nearshore activities on killer
whales. These commenters requested NMFS reconsider sound as a PCE due
to its importance to the species and create sound thresholds to enable
enforcement of potential regulations.
Response: We acknowledge the many observations about the potential
for sound to startle or even physically injure killer whales. These
effects, however, are direct effects to the animal itself and not to
its habitat. The agency has already conducted several ESA section 7
consultations on construction activities, and measures were included in
the action to avoid direct impacts to the whales. Regarding the comment
in support of enforceable regulations to protect killer whales from
sound, we have sound thresholds that we consider to be harassment under
the Marine Mammal Protection Act (MMPA). We also recently announced our
intention to consider new criteria to determine what constitutes
``take'' under the MMPA and ESA, through preparation of an
environmental impact statement (70 FR 1871; January 11, 2005). As that
process unfolds, we may consider additional regulations to protect
Southern Residents from harmful sounds.
Continuous sounds may interfere with the whales' echolocation and
communication. At this time, however, we lack sufficient information to
include sound as a PCE of killer whale critical habitat. We will
continue to consider sound in any future revisions of the critical
habitat designation.
Geographical Area Occupied by the Species
Comment 2: We received many comments regarding the proposal to
designate critical habitat in waters deeper than 20 feet (6.1 m) based
on extreme high water. The majority of commenters felt that we should
include waters shallower than 20 feet (6.1 m) because killer whale
prey, particularly salmon, occupy these waters, and these areas are
essential to the conservation of the Southern Residents. The importance
of these habitats for salmon and forage fish was the predominant
argument for including shallow waters as critical habitat for Southern
Residents. Several commenters argued against our assessment that the
Southern Residents' size prevents them from occupying shallow waters,
pointing to the activities of other killer whales that use shallow
waters for rubbing on rock bottoms and for foraging on marine mammals
as evidence of killer whales' ability to occupy shallow waters. In
contrast, there were commenters who supported our determination that
there is very little evidence to indicate that the whales occupy
shallow waters.
Commenters also cited the lack of a barrier between shallow and
deep waters and mentioned that human activities occurring in shallow
waters inevitably affect Southern Residents in deeper waters. Of
particular concern was the fact that much of the pollution in the Sound
enters through shallow waters and that excluding these waters from
designation would limit our ability to address polluting activities.
Commenters believed that including shallow waters in the critical
habitat designation would increase the clean-up priority of
contaminated sediments and limit industrialization. Some commenters
listed specific projects in shallow waters that pose pollution and
noise threats to Southern Residents. These commenters felt that
including shallow waters would allow closer regulation of these
projects to prevent harmful impacts on the deeper water habitat of
Southern Residents. One commenter believed that including shallow water
in critical habitat is necessary to ensure water quality and prey
sustainability, two of the PCEs identified by NMFS.
In addition, several commenters asserted that it would be difficult
to determine a 20-foot (6.1-m) depth contour relative to extreme high
water because such a line is not commonly found on reference maps and
charts. We received suggestions that using the shoreline as the
critical habitat boundary would make it easier for the public to
understand the boundaries of critical habitat and for Federal action
agencies to evaluate their projects and effects on critical habitat.
Response: The overwhelming majority of comments focused on the
importance of shallow nearshore waters for salmon and forage fish
species. In the critical habitat proposal, we did not consider shallow
waters (i.e., nearshore areas between the line of extreme high tide and
a depth of 20 feet (6.1 m) relative to this line) of Puget Sound to be
within the geographical area occupied by Southern Resident killer
whales. While we acknowledged observations of transient whales beaching
themselves to attack marine mammals, and those of Northern Residents
using shallow areas at rubbing beaches, we did not have any similar
accounts for Southern Resident whales and so requested additional
information on use of shallow waters from the public during the comment
period.
We received comments providing some information on Southern
Resident killer whale use of shallow waters. One researcher and several
other individuals submitted accounts and photos of Southern Resident
whales using specific shallow areas, though it was not clear if these
areas were less than 20 feet (6.1 m) deep based on extreme high water.
We specifically requested public comments on use of shallow areas, and
the limited information received is not sufficient to consider all
shallow areas as occupied.
Joint NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide
that we will designate unoccupied areas as critical habitat only upon a
finding that the currently occupied habitat is inadequate for
conservation (50 CFR 424.12(e)). At this time we lack sufficient
information to determine that the currently occupied habitat is
inadequate and that additional unoccupied habitat in the shallow areas
less than 20-feet (6.1 m) deep is essential for conservation of the
species. We will consider any new information
[[Page 69056]]
indicating that the current occupied habitat is a limiting factor for
recovery as more research is conducted.
The final critical habitat designation is consistent with the
proposed rule and does not include waters shallower than 20 feet (6.1
m) based on extreme high water. Tidal fluctuations vary at locations
throughout the critical habitat areas, but generally, the shallow areas
not included in the critical habitat designation are very shallow (5-10
feet) (1.5-3m) in some tidal conditions and can even be exposed at very
low tides. During some tidal conditions these areas are not accessible
by the whales, and we do not have data indicating that these areas are
frequently used by whales.
Regarding the importance of using lines found on standard maps, we
agree it can be problematic to draw a line at the 20-foot (6.1 m) depth
because standard topographic maps and nautical charts do not always
depict such a line. The line of extreme high water, however, can be
determined using visual cues (Cowardin et al., 1979; Ritter et al.,
1996) and using site-specific tidal information and similar depth
contours (e.g., 20 feet or 6.1 meters) found on maps and nautical
charts to evaluate if their activities are taking place in or may
affect designated critical habitat deeper than 20 feet (6.1 m) at
extreme high water. Thus, Federal agencies can determine whether their
proposed actions may affect critical habitat, and the public and other
entities can discern where habitat critical to Southern Resident killer
whales has been designated.
In our proposed rule, we estimated the total area and shoreline
proposed for designation using readily available Geographic Information
System (GIS) data depicting Washington shorezones (Berry et al., 2000).
These data are widely used by various state and Federal agencies in
Puget Sound to locate and evaluate projects and activities in the
nearshore zone. The GIS data approximate the line of ordinary high
water, but do not include bathymetry, so we did not attempt to subtract
the areas shallower than 20 feet (6.1 m), though areas shallower than
20 feet are not designated as critical habitat in this final rule. We
have used the same dataset to make calculations supporting this final
critical habitat designation.
Prior to issuing proposed critical habitat, we did make some
modifications to the GIS data described above, notably, the exclusion
of estuarine and freshwater areas upstream of river and creek mouths.
In re-evaluating the nearshore areas proposed for critical habitat, we
identified several small or shallow inlets, harbors, coves and bays,
some with very narrow entrances, and obtained more detailed sighting
information to assist with drawing a shoreline boundary for some areas.
In most cases, the whales had not been sighted within the small water
bodies (e.g., Drayton Harbor, Wescott Bay, Guthrie Cove, Tulalip Bay,
Port Gardner/eastern side of Jetty Island, Chapman Cove, Big Fishtrap
Inlet, Gull Harbor, Rocky Bay at the mouth of Rocky Creek, Taylor Bay,
Mayo Cove, Horsehead Bay, Wollochet Bay, Mystery Bay, Eagle Harbor,
Jarrell Cove and Sequim Bay), so we have further modified the GIS data
to excise these areas, totaling approximately 15 square miles (39 sq.
km), in the final designation. We did include several small harbors
where we had reports of Southern Resident whales at the harbor
entrances (e.g., Keystone Harbor, Gig Harbor).
Not designating waters shallower than 20 feet (6.1 m) (based on
extreme high water) as critical habitat does not preclude consultation
on activities that occur in these shallow nearshore areas. ESA section
7's requirement that Federal agencies ensure their actions aren't
likely to adversely modify critical habitat applies equally to actions
occurring outside as to actions occurring within designated critical
habitat.
Comment 3: Many commenters argued for including Hood Canal (Canal)
in the critical habitat designation. Commenters reported sightings of
Southern Residents in the Canal, and asserted that until the 1980s
Southern Residents regularly visited the Canal, making the Canal part
of the home range of the species. These commenters felt we used too
short of a time frame in our assessment and that a longer time frame of
up to 20 years would result in the inclusion of Hood Canal in the
designation. Others noted that transient killer whales use the Canal
frequently, and, therefore, it should be designated critical habitat.
Some commenters expressed concern that exclusion from designation would
allow further development of the Canal, strip mining, industrial harbor
pollution, continued sewer runoff into the Canal, and heavy commercial
traffic, harming the Canal's ecosystem, contributing to low oxygen
levels, and further discouraging Southern Residents from using its
waters. Many commenters felt that Hood Canal and its salmon populations
should be a top concern for NMFS, predicting that with salmon recovery
in the waterway, Southern Residents would return to seek out prey.
These commenters felt strongly that protecting Southern Resident food
sources, specifically salmon, was reason enough to designate Hood Canal
critical habitat. All of these commenters believe Hood Canal is
essential to the recovery of Southern Residents.
Response: Section 3(5)(A) of the ESA defines critical habitat as
areas either occupied or not occupied by the species ``at the time it
is listed.'' We relied on the best available information on killer
whale distribution to develop the proposed critical habitat areas. The
sighting data we received from the Whale Museum included sightings of
Southern Residents from 1990-2003, which was the most reliable
information in their long-term database. Whales were identified by pod
when possible, and sightings of transients, northern residents, and
offshore whales were not included in the Whale Museum data set. There
were no sightings of Southern Resident killer whales reported in Hood
Canal from 1990-2003. In addition to the sighting data, we received one
report of a sound recording made in Hood Canal from 1995, which was
confirmed as calls of Southern Residents. Based on the one recording,
we did not consider Hood Canal as occupied by the species at the time
of listing. Commenters compared the one occurrence of Southern
Residents in Hood Canal in 1995 to the areas in South Puget Sound that
also had small numbers of sightings. The Puget Sound sightings,
however, were often more than one sighting, were more recent, and were
contiguous with areas of greater numbers of sightings. In contrast,
Hood Canal has a narrow entrance, and its waters are not adjacent to
areas with regular sightings.
The information we received during the public comment period
included three additional sightings of killer whales in Hood Canal with
sufficient information (photos, sound recordings, detailed field notes)
to confirm that they were Southern Residents. The sound recording was
made in 1958, the photograph was taken in 1973, and the detailed
account was from a sighting in 1977. In addition, there were many
anecdotal accounts of groups of whales with larger group sizes than are
typical for transient whales and may have been Southern Residents
spanning the 1940's-1980's. In the past, we have considered
opportunistic or historical information on a specicies' occupied
habitat when current documentation is not available. However, for
Southern Residents, we have a more recent sighting record from the
Whale Museum. Even if we increased the time span under consideration to
20 years, it would not add any confirmed sightings of Southern
Residents in Hood Canal at
[[Page 69057]]
the time of listing. At this time, there are not sufficient data to
consider Hood Canal as occupied at the time of listing.
The commenters also argued that if Hood Canal is not currently
considered ``occupied by the species,'' it should still be designated
as critical habitat because it contains the PCEs necessary for
conservation (i.e., prey), and it is essential for conservation. Joint
NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide that we
will designate unoccupied areas as critical habitat only upon a finding
that the currently occupied habitat is inadequate for conservation (50
CFR 424.12(e)). At this time we lack sufficient information to
determine that the currently occupied habitat is inadequate and that
additional unoccupied habitat in Hood Canal is essential for
conservation of the species. We will consider any new information
indicating that the current occupied habitat is a limiting factor for
recovery as more research is conducted.
We appreciate the efforts by the Hood Canal community to gather the
historical information on killer whale use of the area. If, as some
predict, the whales do return to Hood Canal in response to increasing
populations of prey species, we will continue to work with the local
community to gather information and reevaluate the importance of Hood
Canal as Southern Resident habitat.
Specific Areas
Comment 4: Several commenters urged us to designate areas as
critical habitat for killer whales if they are essential for salmon
conservation, based on a variety of theories. Some commenters pointed
out that nearshore areas and/or freshwater areas that support salmon
contain physical or biological features essential for conservation of
killer whales (those features being salmon, or the features that
support salmon). Some commenters urged us to consider nearshore areas,
bays, and even freshwater areas as unoccupied areas ``essential for
conservation'' of the whales - one stating that the statutory provision
regarding ``physical or biological features'' applies to both occupied
and unoccupied areas and another stating that there is no statutory
requirement for unoccupied areas to contain physical or biological
features. One commenter stated that because nearshore and offshore
waters are connected, it is arbitrary to draw a line separating the two
(that is, the line we proposed at the 20-foot (6.1 m) depth).
Response: The presence of salmon in densities and/or bathymetric
conditions that make them available to killer whales appears to be the
primary factor determining what areas the whales are likely to occupy.
The fact that this essential feature is also present in areas the
whales cannot occupy does not make those outside areas ''occupied'' in
the statutory sense. Nor does the fact that those unoccupied areas may
be essential to salmon make them essential to killer whale
conservation. Joint NMFS-U.S. Fish and Wildlife Service (FWS)
regulations provide that we will designate unoccupied areas as critical
habitat only upon a finding that the currently occupied habitat is
inadequate for conservation (50 CFR 424.12(e)). At this time we lack
sufficient information to determine that the currently occupied habitat
is inadequate and that additional unoccupied habitat is essential for
conservation of the species. We will consider any new information
indicating that the current occupied habitat is a limiting factor for
recovery as more research is conducted.
No matter where the line is drawn to delineate a specific area,
there will be activities occurring outside of the delineated area that
may affect the features within the area. When prey items are a
biological feature that moves freely in and out of the geographical
area occupied by the species, it creates a situation in which there is
a ''biological feature'' outside the occupied specific areas. This fact
does not make line-drawing arbitrary because the statute requires us to
designate as critical habitat specific areas occupied by the species
that contain those physical and biological features essential to
conservation and may require special management considerations or
protection, or unoccupied areas essential to the conservation of the
species. Here we have chosen a reasonable line on a map (as our
regulations require) to clearly identify ``specific areas within the
geographical area occupied by the species.'' Moreover, section 7's
requirement that Federal agencies ensure their actions are not likely
to adversely modify critical habitat apply equally to actions occurring
outside and within designated critical habitat. We have identified a
depth contour of 20 feet (6.1 m) based on extreme high water for the
final critical habitat. We believe this is a reasonable way to
delineate a ``specific area within the geographical area occupied by
the species.''
Comment 5: Many commenters requested that we include the offshore
waters of Washington, Oregon, and California in the critical habitat
designation. One commenter recommended we begin our designation at a
reasonable depth and extend it to five miles (8.0 km) offshore to
adequately protect waters used by Southern Residents. Many comments
specifically requested that the Olympic Coast National Marine Sanctuary
be included in the critical habitat designation. Most felt there was
sufficient evidence to include offshore waters in the critical habitat
designation at this time. Others encouraged us to conduct additional
research on the winter coastal habitat of Southern Residents to gather
information to support expansion of the critical habitat designation in
the future.
Response: In the proposed rule, we identified the data gaps
regarding distribution of Southern Residents in coastal and offshore
waters and uncertainty regarding the important habitat features of
these areas. At this time, we do not feel there is sufficient data to
identify the specific areas in offshore waters in which the essential
habitat features are found. This concern applies equally to the Olympic
Coast National Marine Sanctuary and to other offshore areas. There is
an active research program underway to gather information and fill in
these data gaps, and we will consider any new information on coastal
and offshore habitats that becomes available.
Special Management Considerations
Comment 6: We received a number of comments on the threats to the
Southern Resident killer whales and suggestions for management actions
that could be taken. These included: concerns regarding fisheries
management to ensure sufficient prey for the whales; high pollution
levels in Puget Sound and the sewage dumping practices of particular
areas; stress from whale watching and other vessels; and potential
effects from research practices and oil spills.
Response: For each of the specific areas proposed for critical
habitat designation, we identified the PCEs and their special
management considerations, which generally are the same concerns as
those expressed by commenters. We will also consider the comments
pertaining to specific threats to the whales and their habitat and
potential management actions in developing a recovery plan for Southern
Resident killer whales.
Activities That May Be Affected
Comment 7: One commenter requested at least a partial list of the
type of projects that would likely require ESA section 7 consultation
to assist agencies and project sponsors.
Another commenter suggested that Federal hydropower projects should
[[Page 69058]]
also be considered because of their potential to affect abundance of
killer whale prey. Several commenters encouraged us to explore a
Federal nexus under section 7 that would allow us to address vessels in
Puget Sound.
Response: We provided a list of activities that may be affected by
this designation, including, but not limited to, fishery management
practices, vessel traffic, dredging and disposal, sub-marine cable/
pipline installation and repair, oil and gas exploration, pollutant
discharge, and oil spill prevention and response. If hydropower actions
can be shown to significantly reduce the abundance of salmon available
to the whales in designated critical habitat, they could adversely
modify that habitat. As noted in response to Comment 8 below, most
hydropower operations in the range of salmon and steelhead are already
subject to modifications to protect listed salmon and steelhead. We
will work with the Coast Guard and other agencies that oversee vessel
activities to explore actions regarding vessels that may require
section 7 consultation under the ESA.
Application of ESA section 4(b)(2)
Economic Impacts
Comment 8: We received several comments requesting that we include
additional quantified estimates of economic impacts of designating
critical habitat for Southern Resident killer whales in the economics
report. One commenter objected to the focus of the economic analysis on
potential impacts to fisheries. One commenter suggested Federal
hydropower projects be considered under section 7 of the ESA and
economic impacts of those consultations be considered in the economic
analysis. Other commenters requested inclusion of costs associated with
water quality and stormwater management and noise-producing activities,
such as construction. Another suggested that information about economic
costs associated with climate change be included.
Response: The range of economic costs estimated for critical
habitat designation was related to possible reductions in harvest of
prey species. While the economic analysis may appear to focus on
potential impacts to fisheries, the economic report addresses other
impacts such as those to water quality which could not be quantified.
The inability to quantify these costs does not reduce their relative
importance. In the ESA section 4(b)(2) report, we acknowledge that
there are also additional costs associated with prey in addition to
harvest, though we could not attribute these costs to the designation
of critical habitat for Southern Resident killer whales. In designating
critical habitat for the Puget Sound Chinook ESU, there were over
$70,000,000 of economic impacts identified for the designated areas.
Examples of other programs affecting salmon habitat include Shared
Strategy for salmon recovery and Puget Sound Action Team and Puget
Sound Partnership efforts to improve conditions in Puget Sound, which
may cost hundreds of millions of dollars.
In the case of hydroelectric projects, particularly the Federal
projects the commenter identified, many hydroelectric project
modifications to protect salmon and steelhead are already required to
protect ESA-listed salmon or steelhead. Along the entire West Coast,
nearly all salmon-bearing streams are home to listed salmon and
steelhead (only coastal streams in Western Washington contain no listed
salmon or steelhead). To the extent there is a Federal nexus on
hydropower operations affecting these listed salmon and steelhead, the
Federal agency involved must ensure its actions aren't likely to
jeopardize the listed salmonids or adversely modify their critical
habitat. As a result, hydropower operations that might affect the
abundance of killer whale prey (including those in the Columbia River
basin) are already modified to protect salmon and their critical
habitat. It would be inappropriate to attribute the cost of
modifications to killer whale critical habitat designation when they
are already required to protect salmon and steelhead; however, if
additional project modifications are required to prevent reductions of
prey abundance for Southern Resident killer whales in designated
critical habitat, these impacts would be attributable to this
designation.
Regarding water quality, we lack sufficient information at this
time to determine which contaminants are likely to be the focus of
future ESA section 7 consultations and what threshold levels are
appropriate to protect Southern Residents. Until we have better
information about the number and type of section 7 consultations on
water quality management, and the extent of changes that may be
required as a result of those consultations, it would be speculative to
try to estimate associated costs. We do not have a consultation history
for killer whales that would provide information on changes that might
be required in water quality management to protect killer whale habitat
from adverse modification. Nor do we have information that would allow
us to estimate with any confidence what those changes might be. One
commenter suggested that we rely on the consultation history of salmon
to estimate economic costs for water quality management. However, there
are different contaminants of concern for salmon, and, as noted above,
costs associated with salmon consultations would not be appropriate to
count twice. Impacts from Southern Resident critical habitat
designation will likely come in areas different than those that stem
from salmon protection and recovery.
There are likely to be significant costs associated with
construction activities as a result of our listing of Southern Resident
killer whales because these sound-producing activities have a direct
effect on the whales, as described in our response to Comment 1. We
have already conducted several ESA section 7 consultations on
construction activities, and measures were included in the action to
avoid direct impacts to the whales. Because we consider such sound to
be an impact on the whales rather than on the whales' habitat, however,
we did not include the costs associated with these measures in our
analysis of the economic impacts of designation.
At this time it would be too speculative to try to determine what
management changes may be required for salmon and steelhead in response
to climate change.
Comment 9: One commenter questioned the information in the
economics report regarding stormwater outfalls, including the number of
outfalls listed, and suggested we consider the contaminant levels for
individual outfalls and sources rather than the number of outfalls or
the agency responsible for managing the outfalls.
Response: We recognize that the quantity and quality of stormwater,
not the number of outfalls, will determine what changes would need to
be made, if any, as a result of critical habitat designation. We also
recognize that outfalls without any Federal nexus will not be subject
to an ESA section 7 consultation. We included the number of outfalls
that might be subject to consultation in the draft economics report,
where such numbers were available, to give the decision maker some
context for considering the potential impact of critical habitat
designation, as required by ESA section 4(b)(2). In light of this
comment, we have removed the table from the
[[Page 69059]]
economics report showing the number of outfalls.
Comment 10: Commenters suggested that additional information on the
economic benefits of recovered Southern Resident and salmon populations
be included in the report.
Response: While there may be studies that may provide some
information relevant to estimating the benefits of recovered Southern
Resident killer whale and salmon populations, there is insufficient
information to estimate the incremental benefits (in addition to the
current salmon recovery efforts) of critical habitat designation for
Southern Residents on the status of Southern Resident and Pacific
Northwest salmon populations.
Comment 11: One commenter objected to the inclusion of polycyclic
aromatic hydrocarbons (PAH) as a contaminant of potential concern to
Southern Resident killer whales in the economic report. The commenter
acknowledged that PAHs are mentioned in the conservation plan, but that
since they were not specifically addressed in the listing or biological
report, like other contaminants such as polychlorinated biphenyls (PCB)
and dichloro-diphenyl-trichloroethane ( DDT), they should therefore not
be included in the economic analysis.
Response: While we concur with the commenter that PCBs and other
contaminants pose a greater risk to Southern Residents than PAHs, PAHs
are still a concern and we have modified the biological report to
ensure it clearly reflects this concern. Exposure to PAHs can be
chronic or acute in the case of an oil spill. Although there are few
studies of PAH levels and effects in wild marine mammals and no studies
linking PAHs to the decline in the Southern Residents, there are
concerns regarding carcinogenic effects of high levels of PAHs in some
marine mammals (e.g., beluga whales). PAHs were not specifically
identified as a primary concern in the listing of Southern Residents,
but their inclusion in the conservation plan and the economic report
indicates that they may be a concern for Southern Residents. No
specific costs were associated with inclusion of PAHs in the economic
report.
National Security Impacts
Comment 12: Many commenters disagreed with the decision to exclude
18 military sites on the basis of national security. Commenters
requested that we review and offer explanations for the exclusion of
each facility on a case-by-case basis, balancing national security
interests with those of Southern Residents. Reducing the size of
exemptions, limiting the degree of the exemptions, or entering into an
agreement with the Navy to address their activities were several of the
recommendations of commenters. Many of the commenters expressed concern
about non-military activities that occur in the exempt areas and
whether they would be subject to critical habitat regulations. These
commenters hoped we could find a way to protect Southern Residents from
harmful, non-military activities in these zones. An additional concern
for these commenters was the impact of military sonar. We received
recommendations that the military increase its efforts to protect
killer whales when conducting tests, using passive sonar to locate
whales and avoid sonar usage when whales are in potentially harmful
proximity to the military vessel.
Response: In an appendix to the ESA Section 4(b)(2) report, we
provided detailed information on each of the military sites and
summarized the national security concerns raised by the Department of
Defense (DOD). We concluded that the national security impacts
outweighed the benefits to the species. There is no mechanism in the
ESA to exclude just the military and not other Federal agencies from
the impacts of critical habitat designation. The exclusion of the
military sites from critical habitat designation, however, does not
mean that Federal actions in those areas are exempt from all
consultation obligations under section 7 of the ESA. Federal agencies
must ensure their actions do not jeopardize the continued existence of
listed species - a requirement that applies regardless of whether
specific areas are designated as critical habitat. We will continue to
be concerned about activities that harm Southern Resident killer whales
and their habitat, regardless of whether that habitat is designated. We
expect that where critical habitat is designated, it will more
precisely focus our analysis on how the action will alter the habitat
and how that will affect the ability of the habitat to support species'
conservation.
Regarding sonar use, the Navy has operating procedures in place to
reduce the risk to marine mammals, and these are included in the
Proposed Conservation Plan for Southern Resident Killer Whales
(available at www.nwr.noaa.gov). As stated above, the military
exclusions from critical habitat designation do not affect the Navy's
obligations under section 7 of the ESA to consult on Federal actions
that may affect Southern Resident killer whales regardless of whether
they occur in designated critical habitat.
Comment 13: We received several requests for additional exclusions
based on impacts to national security. Commenters requested exclusions
for refineries and ports in Puget Sound. Refinery operators requested
exclusions because of their role in producing the petroleum products
used by the U.S. military. These commenters felt that being subject to
critical habitat consultations would limit the ability of refineries to
efficiently provide oil to the military in a situation of national
security. They also argued critical habitat designations would affect
security, maintenance, operations and emergency preparedness at
refineries. Those requesting national security exemptions for the ports
located in Puget Sound argued that ports play an essential role in
protecting the United States from terrorist threats because they are a
primary entry and exit point. The commenters also argued there would be
economic impacts to designating critical habitat in ports, making the
ports less competitive. The commenters felt that, given that Southern
Residents do not often use port waters, and many of the areas are
already designated as critical habitat for Chinook salmon, an
additional critical habitat designation would impact ports and not
offer benefits to killer whales.
Response: We concluded that the national security benefits of
exclusion outweighed the conservation benefits of designation for 18
military sites. The Navy and Army provided information on the direct
and potentially substantial impacts to national security including
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
time for ship deployments and overall operations. The DOD did not
identify any concerns regarding impacts to national security beyond
those at their sites. National security is the primary mission for the
military, and we considered the high priority placed on national
security when weighing the benefits of exclusion against conservation
benefits. Refineries and ports, however, are commercial operations, and
the national security concerns associated with these sites are a part
of their overall activities. We consider that designating critical
habitat in these areas will provide some conservation benefit through
ESA section 7 consultations on refinery and port actions that may
impact habitat by affecting prey availability, contaminant levels, or
passage. There was
[[Page 69060]]
insufficient information to demonstrate that any national security
benefits outweigh the conservation benefits.
National Environmental Protection Act of 1969 (NEPA)
Comment 14: We received one comment arguing that the agency must
comply with the NEPA to inform the public and help ensure that critical
habitat designations do not result in unintended environmental
consequences.
Response: We believe that in Douglas County v. Babbitt, 48 F.3d
1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996), the Ninth
Circuit Court of Appeals correctly interpreted the relationship between
NEPA and critical habitat designation under the ESA. The Court rejected
the suggestion, identical to that raised by commenters, that
irreconcilable statutory conflict or duplicative statutory procedures
are the only exceptions to application of NEPA to Federal actions. The
Court held that the legislative history of the ESA demonstrated that
Congress intended to displace NEPA procedures with carefully crafted
procedures specific to critical habitat designation. Further, the
Douglas County Court held that the critical habitat mandate of the ESA
conflicts with NEPA in that, although the Secretary may exclude areas
from critical habitat designation if such exclusion would be more
beneficial than harmful, the Secretary has no discretion to exclude
areas from designation if such exclusion would result in extinction.
The Court noted that the ESA also conflicts with NEPA's demand for
impact analysis, in that the ESA dictates that the Secretary ``shall''
designate critical habitat for listed species based upon an evaluation
of economic and other ``relevant'' impacts, which the Court interpreted
as narrower than NEPA's directive. Finally, the Court, based upon a
review of precedent from several circuits including the Fifth Circuit,
held that an environmental impact statement is not required for actions
that do not change the physical environment.
Delay Designation Pending Resolution of Legal Issues
Comment 15: One commenter requested that we delay designation of
critical habitat until clarification of outstanding legal issues,
including litigation over the listing of the Southern Resident DPS and
the definition of ''adverse modification'' of critical habitat, are
resolved.
Response: Litigation is currently pending that challenges our
listing of Southern Resident killer whales as endangered under the ESA
[Washington State Farm Bureau and Building Industry Association of
Washington v. NMFS]. Pending a decision on that challenge, the whales
are listed, and the ESA requires that we designate critical habitat
within one year of listing. Past court decisions on the agency's
regulatory definition of adverse modification have no effect on the
statutory requirement to designate critical habitat.
Coordination with Canada
Comment 16: We received a number of comments regarding the use of
Canadian waters by Southern Residents. These commenters felt we should
coordinate with Canada on our efforts for protecting Southern Residents
and their habitat.
Response: We have some sighting data for Southern Residents in
Canadian waters, and while our regulations limit us to designating
critical habitat in areas under U.S. jurisdiction, we will continue to
coordinate with Canada on both critical habitat designated in U. S.
waters and recovery planning on both sides of the border.
Critical Habitat Identification and Designation
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.
Physical or Biological Features Essential to Conservation (Primary
Constituent Elements)
Joint NMFS-FWS 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 1 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
[[Page 69061]]
amounts of contaminants that exceed levels that can cause mortality or
reproductive failure in Southern Residents. 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 PCBs and DDT, and many other chemical
compounds including polychlorinated napthalenes, brominated flame
retardants, PAHs, dioxins, furans, and heavy metals, are a concern
because of their ability to induce immune suppression, reproductive
impairment, or other physiological damage, as observed in several
species of marine mammals (Albers and Loughlin, 2003; Boland 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. In-water
structures that block passage, for example, could affect Southern
Resident killer whale movement.
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 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.
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 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 recent studies have identified finer scale
pod differences in seasonal movement patterns and use of core areas
(Hauser, 2006).
There are no confirmed sightings of Southern Resident killer whales
inside Hood Canal in the 1990-2003 sighting database. On one occasion
in 1995, acoustic recordings from Dabob Bay were identified as J pod
vocalizations (Unger, 1997). Although additional historical sightings
and recordings from the 1970s and earlier were provided during the
comment period, we do not consider this sufficient evidence of presence
to find Hood Canal ''within the geographical area occupied by the
species at the time of listing.'' (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.)
In the critical habitat proposed rule we did not consider extremely
shallow waters of Puget Sound (less than 20 feet (6.1 m) deep relative
to the extreme high water line) to be within the geographical area
occupied by the species and requested information during the public
comment period. The public and a scientific researcher provided
accounts and photographs of Southern Resident killer whales using some
shallow areas. The information received is not sufficient to consider
all shallow areas as occupied. The final critical habitat designation
is consistent with the proposed rule and does not include waters
shallower than 20 feet (6.1 m) based on extreme high tide. Tidal
fluctuations vary at locations throughout the critical habitat areas,
but generally the shallow areas not included in the critical habitat
designation are very shallow (5-10 feet (1.5-3 m)) in some tidal
conditions and can even be exposed at very low tides. During some tidal
conditions these areas are not accessible by the whales, and we do not
have data indicating that these areas are frequently used by whales. We
used this same shoreline data for the final rule, which is readily
available from the Washington Department of Natural Resources, to
display and calculate the critical habitat areas as we did in the
proposed rule.
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.
[[Page 69062]]
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 five 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 five
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
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 whales are identified as belonging to a
particular pod when possible, and sightings of transient or offshore
whales are not included in the database. 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 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.,
2006).
From the sightings and other data, we 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 Strait, and Georgia Strait 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. 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
behaviors. 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-
[[Page 69063]]
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 water 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 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).
The PCEs identified for this designation may require special
management considerations or protection. Fishery management, vessel
activities, and water quality management are all activities that have
the potential to affect the PCEs by altering prey abundance, prey
contamination levels, and passage between areas. The proposed rule
included information regarding which features may require special
management considerations or protection for each of the three specific
areas designated as critical habitat (71 FR 34571; June 15, 2006).
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 the presence of the
PCEs in specific offshore areas, we cannot assess the human activities
affecting them or the special management considerations for their
protection. At this time we are not designating 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
[[Page 69064]]
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 designating any unoccupied
areas.
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 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 critical habitat designation will provide Federal agencies,
private entities, and the public with clear notification of critical
habitat for Southern Resident killer whales and the boundaries of the
habitat. This 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, 2005), 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)
Section 4(b)(2) of the ESA 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
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.
Section 4(b)(2) of the ESA calls for balancing the benefits of
designation against the economic, national security, and other benefits
of exclusion, and our considerations under section 4(b)(2) were
described in the proposed rule and in a supporting report (NMFS,
2006c). We considered the conservation benefits to the species of
designating areas, the economic benefits of excluding each of the three
areas, and the national security benefits of excluding 18 particular
military sites owned or controlled by the DOD.
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.
At this time we lack information that would allow us either to
quantify or monetize the benefits of designation for the whales, and
have determined the qualitative conservation benefits of designating
each of the three particular areas identified as critical habitat for
Southern Residents. We assessed the benefit of designating the three
areas 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, the strength of the connection
between those activities and habitat modification, and educational
effects of designation. These considerations for each area are
summarized in tables in the 4(b)(2) report (NMFS, 2006c) and the
proposed rule (71 FR 34571; June 15, 2006).
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
conservation function of the other areas. For all of the reasons
discussed, we consider the benefit of designation of each area to be
high.
Economic Impacts (Economic Benefits of Exclusion)
An 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. For salmon fishing, we considered it too speculative to
predict any particular level of reduction, and so considered the total
value of salmon fishing in Puget Sound. If any reduction in fishing
were to be required as a result of critical habitat designation, it
would be some portion of that total. 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.
Although we were only able to quantify the baseline for any economic
impacts for potential modifications to fishing, this does not imply
that harvest is the most important activity affecting the
[[Page 69065]]
abundance of the salmon PCE. As noted previously, salmon abundance is
affected by a host of activities, which would be considered in ESA
section 7 consultations. In the ESA section 4(b)(2) report we
acknowledge that there are additional costs for programs associated
with salmon conservation and and habitat restoration aside from costs
associated with any harvest reduction, although we could not attribute
these costs to the designation of critical habitat for southern
resident killer whales. In addition, if fisheries were impacted, any
potential reductions in harvest would be evaluated to ensure that they
were consistent with the ESA, treaty fishing rights, treaty trust
obligations, and relevant court cases.
Balancing the Benefits and Economic Impacts of Designation
Section 4(b)(2) of the ESA requires that we balance the benefit of
critical habitat designation against the economic benefit of exclusion
for each particular area. The 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.
As stated above, 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
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.
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 military sites overlap with areas we found to meet the
definition of critical habitat for the Southern Resident killer whale
DPS. These 18 sites include shore-based facilities, nearshore areas
around structures such as docks and piers, and offshore areas in Puget
Sound where the Navy has security restrictions, and they cover
approximately 112 square miles (291 sq km) out of the total 2,687
square miles (6,959 sq km) under consideration as critical habitat for
Southern Residents. The total area considered was recalculated for the
final rule and was updated from 2,676 square miles (6,931 sq km) in the
proposed rule, to 2,687 square miles (6,959 sq km) for the final rule.
The shore-based sites cover 81 miles (130 km) of shoreline out of the
total 2,081 miles (3,349 km) of shoreline considered for critical
habitat designation.
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
[[Page 69066]]
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.
Balancing the Benefits of Designation with National Security Impacts
The benefit of excluding these particular areas is that the DOD
would only be required to comply with the jeopardy prohibition of ESA
section 7(a)(2) and not the adverse modification prohibition. The DOD
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 DOD 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 conclude that the national security benefits of exclusion outweigh
the conservation benefits of designation for each of the 18 sites, and
we are not designating these DOD sites as critical habitat.
ESA Section 4(b)(2) Conclusions
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 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 conclude that the national security benefits of exclusion outweigh
the conservation benefits of designation for each of the 18 sites, and
we are not designating these DOD sites as critical habitat.
We did not identify other relevant impacts of designation beyond
economic impacts and impacts on national security.
Critical Habitat Designation
We are designating approximately 2,560 square miles (6,630 km) of
marine habitat within the area occupied by Southern Resident killer
whales in Washington. The proposed areas are occupied and contain
physical or biological features that are essential to the conservation
of the species and may require special management considerations or
protection. Some of these areas overlap with military sites, which are
not designated as critical habitat because they were determined to have
national security impacts that outweigh the benefit of designation and
were therefore 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 excluding 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 excluding 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 designated as critical habitat.
Required Determinations
Regulatory Planning and Review
This final rule has been determined to be significant for purposes
of Executive Order (E.O.) 12866. A final economic report and ESA
section 4(b)(2) report document our consideration of alternatives to
rulemaking as required by this Executive Order. We have analyzed the
economic effects of various management scenarios. These are described
in the economic report supporting this rulemaking, available at http://www.nwr.noaa.gov/.
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 a
final regulatory flexibility analysis (FRFA), which is part of the
Economic Analysis (NMFS, 2006b). The FRFA incorporates the Initial
Regulatory Flexibility Analysis (IRFA), which was part of the draft
economic analysis that accompanied the proposed rule to designate
critical habitat. The FRFA also incorporates comments received on the
IRFA and on the economic impacts of the rule generally. Responses to
comments are provided above in the preamble to the rule, and any
necessary corresponding changes were made to the FRFA. The analysis is
summarized below.
A statement of the need for and objectives of this final rule is
provided earlier in the preamble and is not repeated here. This final
rule will not impose any recordkeeping or reporting requirements.
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 critical habitat designation.
Further, significant
[[Page 69067]]
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 critical habitat to individual businesses.
There are 344 entities engaged in fishing activities in the region, 332
of which are considered ''small entities.''
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
considered alternatives in which each of the three critical habitat
areas is excluded under section 4(b)(2) of the ESA. Each of these
alternatives may have minimized impacts on small businesses by reducing
consultation costs and potential project modifications necessitated
pursuant to section 7(a)(2) of the ESA once an area is designated as
critical habitat. As described earlier in this rulemaking, the
magnitude of these impacts is difficult to predict. However, because we
did not find that the economic benefits of exclusion outweigh the
benefits of designation for any of the three specific areas, we did not
have discretion to exclude any these areas pursuant to the ESA. We
therefore rejected each of these alternatives as inconsistent with the
ESA.
E.O. 13211
On May 18, 2001, the President issued an Executive Order 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, we make the
following findings:
(a) This final 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
final 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 final 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 final rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of Commerce policies, we have
requested information from, and will continue to coordinate this
critical habitat designation with, appropriate state resource agencies
in Washington. The 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 final rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order. We
[[Page 69068]]
are designating critical habitat in accordance with the provisions of
the ESA. This final 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 final rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. This final 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 designated critical habitat occurs on tribal lands.
However, critical habitat does overlap with Usual and Accustomed
hunting and fishing grounds. The 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. Should it be necessary to
reduce Puget Sound fisheries, a reduction in tribal fisheries would
only occur consistent with the principles established in the
Secretarial Order, ``American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act.'' We will
continue to consult with affected tribes regarding designated critical
habitat.
References Cited
A complete list of all references cited in this rulemaking can be
found on our website 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: November 21, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, part 226, title 50 of the Code
of Federal Regulations is amended to read as follows:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
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 relative to a contiguous shoreline delimited by the
line at a depth of 20 feet (6.1 m) relative to 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 final critical habitat for the Southern
Resident killer whale follows.
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(c) Primary Constituent Elements. The primary constituent elements
essential for conservation of the Southern Resident killer whale 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, including shoreline, nearshore areas around
structures such as docks and piers, and marine areas:
(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. 06-9453 Filed 11-28-06; 8:45 am]
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