[Federal Register Volume 74, Number 230 (Wednesday, December 2, 2009)]
[Proposed Rules]
[Pages 63080-63095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28760]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 090224232-91321-03]
RIN 0648-AX50
Endangered and Threatened Species: Designation of Critical
Habitat for Cook Inlet Beluga Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comment.
-----------------------------------------------------------------------
SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate critical habitat for the Cook Inlet beluga whale
(Delphinapterus leucas) distinct population segment under the
Endangered Species Act (ESA). Two areas are proposed, comprising 7,809
square kilometers (3,016 square miles) of marine habitat. We solicit
comments from the public on all aspects of the proposal.
DATES: Comments and information regarding this proposed rule must be
received by close of business on February 1, 2010. Requests for public
hearings must be made in writing and received by January 19, 2010.
ADDRESSES: Send comments to Kaja Brix, Assistant Regional
Administrator, Protected Resources, Alaska Region, NMFS, ATTN: Ellen
Sebastian. You may submit comments, identified by ``RIN 0648-AX50'' by
any one of the following methods:
Electronic submissions: Submit all electronic public
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
Mail: P.O. Box 21668, Juneau, AK, 99802-1668.
Fax: 907-586-7557
Hand deliver to the Federal Building: 709 West 9th Street,
Room 420A, Juneau, AK.
All comments received are a part of the public record and generally
will be posted to http://www.regulations.gov without change. All
Personal Identifying Information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business
[[Page 63081]]
Information or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter N/A in the required fields, if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word, WordPerfect, of Adobe portable document
file (PDF) format only.
The proposed rule, maps, status reviews, and other materials
relating to Cook Inlet beluga whales and this proposal can be found on
our Web site at: http://www.fakr.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Kaja Brix, NMFS, Alaska Region, (907)
586-7824; or Marta Nammack, NMFS, (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Rulemaking Background
We are responsible for determining whether species, subspecies, or
distinct population segments (DPSs) are threatened or endangered and
for designating critical habitat for these species under the Endangered
Species Act (ESA) (16 U.S.C. 1531 et seq.). To be considered for
listing under the ESA, a group of organisms must constitute a
``species'' which is defined in section 3 of the ESA to include ``any
subspecies of fish or wildlife or plants, and any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds
when mature.'' We consider a group of organisms to be a DPS for
purposes of ESA listing when it is both discrete from other populations
and significant to the species to which it belongs (61 FR 4722;
February 7, 1996). We previously found the Cook Inlet beluga whale
population segment to be reproductively, genetically, and physically
discrete from the four other known beluga populations in Alaska and
significant because it is in a unique ecological setting for the taxon,
and its loss would result in a significant gap in the taxon's range.
Following completion of a Status Review of the Cook Inlet beluga whale
under the ESA, we published a proposed rule to list this DPS as an
endangered species on April 20, 2007 (72 FR 19854). We subsequently
extended the date for final determination on the proposed action by 6
months, until October 20, 2008 (73 FR 21578), as provided for by the
ESA (section 4(b)(6)(B)(i)). We published a Final Rule to list the Cook
Inlet beluga whale as an endangered species on October 22, 2008 (73 FR
62919). Initiating the process for designation of critical habitat, we
published an Advance Notice of Proposed Rulemaking on April 14, 2009
(74 FR 17131).
We considered various alternatives to the critical habitat
designation for the Cook Inlet beluga whale. The alternative of not
designating critical habitat for the Cook Inlet beluga whale would
impose no economic, national security, or other relevant impacts, but
would not provide any conservation benefit to the species. This
alternative is not .proposed because such an approach does not meet the
legal requirements of the ESA and would not provide for the
conservation of Cook Inlet beluga whale. The alternative of designating
all eligible occupied habitat areas also was considered and rejected
because some areas within the occupied range were not considered to be
critical habitat, and did not contain the identified physical or
biological features that are essential to the conservation of the Cook
Inlet beluga.
An alternative to designating critical habitat within all eligible
occupied areas is the designation of critical habitat within a subset
of these areas. Under section 4(b)(2) of the ESA, we must consider the
economic impacts, impacts to national security, and other relevant
impacts of designating any particular area as critical habitat. We have
the discretion to exclude any particular area from designation as
critical habitat if the benefits of exclusion (i.e., the impacts that
would be avoided if an area were excluded from the designation)
outweigh the benefits of designation (i.e., the conservation benefits
to the Cook Inlet beluga whale if an area were designated), so long as
exclusion of the area will not result in extinction of the species.
Exclusion under section 4(b)(2) of the ESA of one or more of the areas
considered for designation would reduce the total impacts of
designation. The determination to exclude any particular areas depends
on our ESA 4(b)(2) analysis, which is described in detail in the ESA
4(b)(2) analysis report. Under this proposed rule (the preferred
alternative), we do not propose to exclude any areas. The total
estimated economic impact associated with this proposed rule is
$157,000 to $472,000 (discounted at 7 percent) or $187,000 to $571,000
(discounted at 3 percent). We propose this alternative because it
results in a critical habitat designation that provides for the
conservation of the Cook Inlet beluga whale, without economic effects
of sufficient significance to warrant any exclusions from that
designation. Other areas within their range did not contain the
identified physical or biological features that are essential to the
conservation of the Cook Inlet beluga. This alternative also meets the
requirements under the ESA and our joint NMFS-USFWS regulations
concerning critical habitat.
Critical Habitat
Section 4(b)(2) of the ESA requires us to designate critical
habitat for threatened and endangered species ``on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical
habitat.'' This section also grants the Secretary of Commerce
(Secretary) discretion to exclude any area from critical habitat if he
determines ``the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat.'' The Secretary's
discretion is limited, as he may not exclude areas that ``will result
in the extinction of the species.''
The ESA defines critical habitat under section 3(5)(A) 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.''
Once critical habitat is designated, section 7 of the ESA requires
Federal agencies to ensure they do not fund, authorize, or carry out
any actions that will destroy or adversely modify that habitat. This
requirement is additional to the section 7 requirement that Federal
agencies ensure their actions do not jeopardize the continued existence
of listed species.
Issues for Consideration and Evaluation
Section 4(a)(3) of the ESA requires us to designate critical
habitat for threatened and endangered species. We are currently
proposing to designate critical habitat for the Cook Inlet beluga
whale. We have considered a number of issues in developing this
proposed rule:
What areas are occupied by the species at the time of
listing?
What physical and biological features are essential to the
species' conservation?
Are those essential features ones that may require special
management considerations or protection?
[[Page 63082]]
Are there any areas outside those currently occupied that
are ``essential for conservation?''
What economic, national security, and other relevant
impacts would result from a critical habitat designation?
What is the appropriate geographic scale for weighing the
benefits of exclusion and benefits of designation?
Will the exclusion of any particular area from the
critical habitat designation result in the extinction of the species?
Answering these questions involves a variety of considerations that
we outline below.
Cook Inlet Beluga Whale Biology and Habitat Use
The beluga whale is a small, toothed whale in the family
Monodontidae, a family it shares with only the narwhal. Belugas are
also known as ``white whales'' because of the white coloration of the
adults. The beluga whale is a northern hemisphere species that inhabits
fjords, estuaries, and shallow water of Arctic and subarctic oceans.
Five distinct stocks of beluga whales are currently recognized in
Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea, Bristol
Bay, and Cook Inlet. The Cook Inlet population is numerically the
smallest of these, and is the only one of the five Alaskan stocks
occurring south of the Alaska Peninsula in waters of the Gulf of
Alaska.
A detailed description of the biology of the Cook Inlet beluga
whale may be found in the Proposed Listing Rule (72 FR 19854; April 20,
2007). Belugas generally occur in shallow, coastal waters, and while
some populations make long seasonal migrations, Cook Inlet belugas
reside in Cook Inlet year round. Data from satellite tagged whales
documented that Cook Inlet belugas concentrate in the upper Inlet at
rivers and bays in the summer and fall, and then tend to disperse into
deeper waters moving to mid Inlet locations in the winter. The
Traditional Ecological Knowledge (TEK) of Alaska Natives and systematic
aerial survey data document a contraction of the summer range of Cook
Inlet belugas over the last 2 decades of the twentieth century. While
belugas were once abundant and frequently sighted in the lower Inlet
during summer, they are now primarily concentrated in the upper Inlet.
This constriction is likely a function of a reduced population seeking
the highest quality habitat that offers the most abundant prey, most
favorable feeding topography, the best calving areas, and the best
protection from predation. An expanding population would likely use the
lower Inlet more extensively.
While mating is assumed to occur sometime between late winter and
early spring, there is little information available on the mating
behavior of belugas. Most calving in Cook Inlet is assumed to occur
from mid-May to mid-July (Calkins, 1983), although Native hunters have
observed calving from April through August (Huntington, 2000). Newborn
calves have been observed in mid-to-late July. Alaska Natives described
calving areas as the northern side of Kachemak Bay in April and May,
off the mouths of the Beluga and Susitna rivers in May, and in
Chickaloon Bay and Turnagain Arm during the summer (Huntington, 2000).
The warmer waters from these freshwater sources may be important to
newborn calves during their first few days of life (Katona et al.,
1983; Calkins, 1989). Surveys conducted from 2005 to 2007 in the upper
Inlet by LGL, Inc., documented neither localized calving areas nor a
definitive calving season, since calves were encountered in all
surveyed locations and months (April-October) (McGuire et al., 2008).
The warmer, fresher coastal waters may also be important areas for
belugas' seasonal summer molt.
Cook Inlet belugas are opportunistic feeders and feed on a wide
variety of prey species, focusing on specific species when they are
seasonally abundant. Pacific eulachon are an important early spring
food resource for beluga whales in Cook Inlet, as evidenced by the
stomach contents of a beluga hunted near the Susitna River in April
1998 that was filled exclusively with eulachon (NMFS unpubl. data).
These fish first enter the upper Inlet in April, with two major
spawning migrations occurring in the Susitna River in May and July. The
early run is estimated at several hundred thousand fish and the later
run at several million (Calkins, 1989).
In the summer, as eulachon runs begin to diminish, belugas rely
heavily on several species of salmon as a primary prey resource. Beluga
whale hunters in Cook Inlet reported one whale having 19 adult king
salmon in its stomach (Huntington, 2000). NMFS (unpubl. data) reported
a 14 foot 3 inch (4.3 m) male with 12 coho salmon, totaling 61.5 lbs
(27.9 kg), in its stomach.
The seasonal availability of energy-rich prey such as eulachon,
which may contain as much as 21 percent oil (Payne et al., 1999), and
salmon are very important to the energetics of belugas (Abookire and
Piatt, 2005; Litzow et al., 2006). Native hunters in Cook Inlet have
stated that beluga whale blubber is thicker after the whales have fed
on eulachon than in the early spring prior to eulachon runs. In spring,
the whales were described as thin with blubber only 2-3 inches (5-8 cm)
thick compared to the fall when the blubber may be up to 1 ft (30 cm)
thick (Huntington, 2000). Eating such fatty prey and building up fat
reserves throughout spring and summer may allow beluga whales to
sustain themselves during periods of reduced prey availability (e.g.,
winter) or other adverse impacts by using the energy stored in their
blubber to meet metabolic needs. Mature females have additional energy
requirements. The known presence of pregnant females in late March,
April, and June (Mahoney and Shelden, 2000; Vos and Shelden, 2005)
suggests breeding may be occurring in late spring into early summer.
Calves depend on their mother's milk as their sole source of nutrition,
and lactation lasts up to 23 months (Braham, 1984), though young whales
begin to consume prey as early as 12 months of age (Burns and Seaman,
1986). Therefore, the summer feeding period is critical to pregnant and
lactating belugas. Summertime prey availability is difficult to
quantify. Known salmon escapement numbers and commercial harvests have
fluctuated widely throughout the last 40 years; however, samples of
harvested and stranded beluga whales have shown consistent summer
blubber thicknesses.
In the fall, as anadromous fish runs begin to decline, belugas
again return to consume the fish species found in nearshore bays and
estuaries. This includes cod species as well as other bottom-dwellers
such as Pacific staghorn sculpin and flatfishes, such as starry
flounder and yellowfin sole. This change in diet in the fall is
consistent with other beluga populations known to feed on a wide
variety of food. Pacific staghorn sculpin are commonly found nearshore
in bays and estuaries on sandy substrate (Eschmeyer et al., 1983).
Flatfish are typically found in very shallow water and estuaries during
the warm summer months and move into deeper water in the winter as
coastal water temperatures cool (though some may occur in deep water
year-round) (Morrow, 1980).
The available information indicates that Cook Inlet belugas
continue to move within the Inlet during the winter months. They
concentrate in deeper waters in mid Inlet past Kalgin Island, with
occasional forays into the upper Inlet, including the upper ends of
Knik and Turnagain Arms. While the beluga whales move into the mid
Inlet during the winter, ice cover does not appear to limit their
movements. Their winter
[[Page 63083]]
distribution does not appear to be associated with river mouths, as it
is during the warmer months. The spatial dispersal and diversity of
winter prey likely influence the wider beluga winter range throughout
the mid and lower Inlet.
There is obvious and repeated use of certain habitats by Cook Inlet
beluga whales. Intensive aerial abundance surveys conducted in June and
July since 1993 have consistently documented high use of Knik Arm,
Turnagain Arm, Chickaloon Bay and the Susitna River delta areas of the
upper Inlet. Ninety-six to one hundred percent of all belugas sighted
during these surveys were in the upper Inlet near Anchorage (Rugh et
al., in review). The high use of these areas by belugas is further
supported by data from satellite tagging studies.
The range of Cook Inlet belugas has been previously defined as the
waters of the Gulf of Alaska north of 58.0[deg] N. and freshwater
tributaries to these waters based on then-available scientific data (65
FR 34590, May 31, 2000; MMPA Sec. 216.15(g); 76 FR 62919, Oct. 22,
2008). There are few beluga sightings in the Gulf of Alaska outside
Cook Inlet. In the 1970s and 1980s, beluga sightings occurred across
much of the northern and central parts of Cook Inlet, but in the 1990s
the summer distribution narrowed to primarily the northernmost portions
of Cook Inlet. More of the Inlet was used by beluga whales during the
spring, summer, and fall during the 1970s and 1980s than is presently
used. However, because sightings continue to occur over the entire
described range, we consider the present range of this DPS to be
occupied habitat. The present range of the listed Cook Inlet beluga is
limited to Cook Inlet waters north of a line from Cape Douglas to Cape
Elizabeth (Figure 1).
Proposed Critical Habitat
After considering comments received in response to the Advance
Notice of Proposed Rulemaking (74 FR 17131; April 14, 2009), sighting
reports, satellite telemetry data, TEK, scientific papers and other
research, the biology and ecology of the Cook Inlet DPS of beluga
whales, and information indicating the presence of one or more of the
identified PCEs within certain areas of their range, we have identified
the ``specific areas'' within the geographical area occupied by the
Cook Inlet beluga whale to be proposed as critical habitat. We propose
to designate critical habitat within the following areas (Figure 1).
Area 1: Area 1 encompasses 1,918 square kilometers (741 sq. mi.) of
Cook Inlet northeast of a line from the mouth of Threemile Creek
(61[deg] 08.5' N., 151[deg] 04.4' W.) to Point Possession (61[deg]
02.1' N., 150[deg] 24.3' W.). This area is bounded by the Municipality
of Anchorage, the Matanuska-Susitna Borough, and the Kenai Peninsula
borough. The area contains shallow tidal flats, river mouths or
estuarine areas, and is important as foraging and calving habitats.
Mudflats and shallow areas adjacent to medium and high flow
accumulation streams may also provide for other biological needs, such
as molting or escape from predators (Shelden et al., 2003). Area 1 also
has the highest concentrations of belugas from spring through fall as
well as the greatest potential for adverse impact from anthropogenic
threats.
Many rivers in Area 1 habitat have large eulachon and salmon runs.
Two such rivers in Turnagain Arm, Twenty-mile River and Placer River,
are visited by belugas in early spring, indicating the importance of
eulachon runs for beluga feeding. Beluga use of upper Turnagain Arm
decreases in the summer and then increases again in August through the
fall, coinciding with the coho salmon run. Early spring (March to May)
and fall (August to October) use of Knik Arm is confirmed by studies by
Funk et al. (2005). Intensive summer feeding by belugas occurs in the
Susitna delta area, Knik Arm and Turnagain Arm.
[[Page 63084]]
[GRAPHIC] [TIFF OMITTED] TP02DE09.038
Whales regularly move into and out of Knik Arm and the Susitna
delta (Hobbs et al., 2000; Rugh et al., 2004). The combination of
satellite telemetry data and long-term aerial survey data demonstrate
beluga whales use Knik Arm 12 months of the year, often entering and
leaving the Arm on a daily basis (Hobbs et al., 2005; Rugh et al.,
2005, 2007). These surveys demonstrate intensive use of the Susitna
delta area (from the Little Susitna River to Beluga River) and
Chickaloon Bay (Turnagain Arm) with frequent large scale movements
between the delta area, Knik Arm and Turnagain Arm. During annual
aerial surveys conducted by NMML in June-July, up to 61 percent of the
whales sighted in Cook Inlet were in Knik Arm (Rugh et al., 2000,
2005). The Chickaloon Bay area also appears to be used by belugas
throughout the year.
Belugas are particularly vulnerable to impacts in Area 1 due to
their high seasonal densities and the biological importance of the
area. Because of their intensive use of this area (e.g., foraging,
nursery, predator avoidance), activities that restrict or deter use of
or access to Area 1 habitat could reduce beluga calving success, impair
their ability to secure prey, and increase their susceptibility to
predation by killer whales. Activities that reduce anadromous fish runs
could also negatively impact beluga foraging success, reducing their
fitness, survival, and recovery. Furthermore, the tendency for belugas
to occur in high concentrations in Area 1 habitat predisposes them to
harm from such events as oil spills.
Area 2: Area 2 consists of 5,891 square kilometers (2,275 square
miles) of less concentrated spring and summer beluga use, but known
fall and winter use areas. It is located south of Area 1, north of a
line at 60[deg] 25.0' N., and includes nearshore areas south of 60[deg]
25.0' N. along the west side of the Inlet and Kachemak Bay on the east
side of the lower inlet.
Area 2 is largely based on dispersed fall and winter feeding and
transit areas in waters where whales typically occur in smaller
densities or deeper waters. It includes both near and offshore areas of
the mid and upper Inlet, and nearshore areas of the lower Inlet. Due to
the role of this area as probable fall feeding areas, Area 2 includes
Tuxedni,
[[Page 63085]]
Chinitna, and Kamishak Bays on the west coast and a portion of Kachemak
Bay on the east coast. Winter aerial surveys (Hansen, 1999) sighted
belugas from the forelands south, with many observations around Kalgin
Island. Based on tracking data, Hobbs et al. (2005) document important
winter habitat concentration areas reaching south of Kalgin Island.
Belugas have been regularly sighted at the Homer Spit and the head
of Kachemak Bay, appearing during spring and fall of some years in
groups of 10-20 individuals (Speckman and Piatt, 2000). Belugas have
also been common at Fox River Flats, Muddy Bay, and the northwest shore
of Kachemak Bay (NMFS unpubl. data), sometimes remaining in Kachemak
Bay all summer (Huntington, 2000).
Dive behavior indicates beluga whales make relatively deeper dives
(e.g., to the bottom) and are at the surface less frequently in Area 2,
and hence are less frequently observed (Hobbs et al., 2005). It is
believed these deep dives are associated with feeding during the fall
and winter months (NMFS unpubl. data). The combination of deeper dives,
consistent use of certain areas, and stomach content analyses indicate
that belugas whales are actively feeding in these areas. Hence, deeper
mid Inlet habitats may be important to the winter survival and recovery
of Cook Inlet beluga whales.
Physical and Biological Features Essential for Conservation
ESA section 3(5)(A)(i) defines critical habitat to include those
``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.'' Joint NMFS/FWS regulations for listing endangered and
threatened species and designating critical habitat at section 50 CFR
424.12(b) state that the agency ``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'' (also referred to as ``Essential Features'' or ``Primary
Constituent Elements''). 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
(5) habitats that are protected from disturbance or are representative
of the historic geographical and ecological distributions of a species.
These regulations go on to emphasize that the agency shall focus on
essential features within the specific areas considered for
designation. These features ``may include, but are not limited to, the
following: roost sites, nesting grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water quality or quantity, geological
formation, vegetation type, tide, and specific soil types.''
Scientific research, direct observation, and TEK indicate fish are
the primary prey species of the Cook Inlet beluga whale, and that
certain species are especially important. This importance may be due to
feeding strategies of the whales, physical attributes of the prey
(e.g., size), the caloric value of the prey, the availability of the
prey, and the life-history aspects of the whales, among other
considerations. Two fish species that are highly utilized by Cook Inlet
beluga whales are king or Chinook salmon and Pacific eulachon. Both of
these species are characterized as having very high fat content,
returning to the upper Inlet early in the spring, and having adult
(spawning) returns which occupy relatively narrow timeframes during
which large concentrations of fish may be present at or near the mouths
of tributary streams.
Analysis of stomach contents and research of fatty acid signatures
within beluga blubber indicate the importance of other species of fish
and invertebrates to the diets of these whales. The most prominent of
these are other Pacific salmon (sockeye, chum, and coho), Pacific cod,
walleye pollock, saffron cod, and yellowfin sole. Beluga whales are
also known to feed on a wide variety of vertebrate and invertebrate
prey species. However, the aforementioned fish species occupy a
prominent role in their foraging and energetic budgets and are
considered essential to the beluga whale's conservation.
NMFS research has considered the distribution of the Cook Inlet
beluga whale and its correlations with behavior, habitat function, and
physical parameters (Goetz et al., 2007). While these whales are highly
mobile and capable of ranging over a large portion of Cook Inlet on a
daily basis, in fact they commonly occupy very discrete areas of the
Inlet, particularly during summer months. These areas are important
feeding habitats, whose value is due to the presence of certain species
of prey within the site, the numbers of prey species within the site,
and the physical aspects of the site which may act to concentrate prey
or otherwise facilitate feeding strategy. In upper Cook Inlet, beluga
whales concentrate offshore from several important salmon streams and
appear to use a feeding strategy which takes advantage of the
bathymetry in the area. The channels formed by the river mouths and the
shallow waters act as a funnel for salmon as they move past waiting
belugas. Dense concentrations of prey may be essential to beluga whale
foraging. Hazard (1988) hypothesized that beluga whales were more
successful feeding in rivers where prey were concentrated than in bays
where prey were dispersed. Fried et al. (1979) noted that beluga whales
in Bristol Bay fed at the mouth of the Snake River, where salmon runs
are smaller than in other rivers in Bristol Bay. However, the mouth of
the Snake River is shallower, and hence may concentrate prey. Research
on beluga whales in Bristol Bay suggests these whales preferred certain
streams for feeding based on the configuration of the stream channel
(Frost et al., 1983). This study theorized beluga whales' feeding
efficiencies improve in relatively shallow channels where fish are
confined or concentrated. Bathymetry and fish density may be more
important than sheer numbers of fish in beluga feeding success.
Although beluga whales do not always feed at the streams with the
highest runs of fish, proximity to medium to high flow river systems is
also an important descriptor in assigning importance to feeding
habitats. Research has found beluga distribution in Cook Inlet is
significantly greater near mudflats and medium and high flow
accumulation rivers. (These waters were categorized in Goetz et al.
(2007) using a digital elevation model, similar to drainage basins. A
complete list of these waters may be found on the NMFS website http://www.fakr.noaa.gov/.) Beluga whales are seldom observed near small flow
tributaries.
Cook Inlet beluga whales are preyed upon by killer whales, their
only known natural predator. We have received reports of killer whales
throughout Cook Inlet, and have responded to several instances of
predation within Turnagain Arm, near Anchorage.
Given the small population size of the Cook Inlet beluga whales,
predation may have a significant effect on beluga recovery. In addition
to directly reducing the beluga population, the presence of killer
whales in Cook Inlet may also increase stranding events. We consider
killer whale predation to be a potentially significant threat to the
conservation and recovery of these
[[Page 63086]]
whales. Beluga whales may employ several defense strategies against
killer whale predation. One strategy is to retreat to shallow estuaries
too shallow for the larger killer whales. These areas might also
provide acoustical camouflage due to their shallow depths, silt loads,
and multiple channels.
Because of their importance in the Cook Inlet beluga whale's
feeding strategy, as predator escape terrain, and in providing other
habitat values, we consider ``mudflats,'' identified here as shallow
and nearshore waters proximate to certain tributary streams, to a be
physical feature essential to the conservation of the Cook Inlet beluga
whale. Figure 2 presents the location of this feature within Cook
Inlet.
[GRAPHIC] [TIFF OMITTED] TP02DE09.039
For purposes of describing and locating this feature, and after
consultation with the author of the model presented in Goetz et al.
(2007), we determined spatial extent of this feature may best be
described as being within the 30-foot (9.1 m) depth contour and within
5 miles (8.0 km) of medium and high flow accumulation rivers.
It appears Cook Inlet beluga whales have lower levels of
contaminants stored in their bodies than other populations of belugas.
Because these whales occupy the most populated and developed region of
the state, they must compete with various anthropogenic stressors,
including pollution. These whales often occur in dense aggregations
within small nearshore areas, where they are predisposed to adverse
effects of pollution. Beluga whales are apex predators, occupying the
upper levels of the food chain. This predisposes them to illness and
injury by biomagnification of certain pollutants. Another population of
beluga whales found in the Gulf of St. Lawrence in Canada is
characterized by very high body burdens of contaminants. There, high
levels of PCBs, DDT, Mirex, mercury, lead, and indicators of
hydrocarbon exposure have been detected in belugas. These substances
are well-known for their toxic effects on animal life and for
interfering with reproduction and resistance to disease. Many of these
contaminants are transferred from mother to calf through nursing.
Given present abundance levels, the impact of any additional
mortalities to
[[Page 63087]]
the extinction risk for this DPS, the sensitivity of beluga whales to
certain pollutants, their trophic position and biomagnifications, the
fact that large numbers of Cook Inlet beluga whales typically occupy
very small habitats, and that their range includes the most populated
and industrialized area of the state, we consider water quality to be
an important aspect of their ecology, and essential to their
conservation within both areas 1 and 2.
Cook Inlet beluga whales do not occupy an extensive range, and are
not known to undertake migrations. Within their occupied range,
however, these whales move freely and continuously. The range of the
Cook Inlet beluga whale is neither biologically nor physically uniform.
It ranges between shallow mudflats, glacial fjords, deep waters with
marine salinities, vegetated shallows of predominantly freshwaters, and
areas of the upper Inlet in which heavy ice scour, extreme tidal
fluctuations, high silt content, low temperatures, and high turbidity
work to limit any intertidal or persistent nearshore organisms. Beluga
whales have adapted here by utilizing certain areas over time and space
to meet their ecological needs. While much remains to be understood of
their ecology and basic life history, it is apparent a large part of
their movement and distribution is associated with feeding. Feeding
habitat occurs near the mouths of anadromous fish streams, coinciding
with the spawning runs of returning adult salmon. These habitats may
change quickly as each species of salmon, and often each particular
river, is characterized as having its individual run timing. Calving
habitat is poorly described, but may depend on such factors as
temperatures, depths, and salinities. Predator avoidance may be a very
important habitat attribute, and is likely to exist only in shallows
within Turnagain and Knik Arms of the upper Inlet. Causeways, dams, and
non-physical effects (e.g., noise) can interfere with whale movements.
It is essential to the conservation of Cook Inlet beluga whales that
they have unrestricted access within and between the critical habitat
areas.
Beluga whales are known to be among the most adept users of sound
of all marine mammals, using sound rather than sight for many important
functions, especially in the highly turbid waters of upper Cook Inlet.
Beluga whales use sound to communicate, locate prey, and navigate, and
may make different sounds in response to different stimuli. Beluga
whales produce high frequency sounds which they use as a type of sonar
for finding and pursuing prey, and likely for navigating through ice-
laden waters. In Cook Inlet, beluga whales must compete acoustically
with natural and anthropogenic sounds. Man-made sources of noise in
Cook Inlet include large and small vessels, aircraft, oil and gas
drilling, marine seismic surveys, pile driving, and dredging. The
effects of man-made noise on beluga whales and associated increased
``background'' noises may be analogous to a human's reduced visual
acuity when confronted with heavy fog or darkness.
Anthropogenic noise above ambient levels may cause behavioral
reactions in whales (harassment) or mask communication between these
animals. The effects of harassment may also include abandonment of
habitat. At louder levels, noise may result in temporary or permanent
damage to the whales' hearing. Empirical data exist on the reaction of
beluga whales to in-water noise (harassment and injury thresholds) but
are lacking regarding levels that might elicit more subtle reactions
such as avoiding certain areas. Noise capable of killing or injuring
beluga whales, or that might cause the abandonment of important
habitats, would be expected to have consequences to this DPS in terms
of survival and recovery. We consider ``quiet'' areas in which noise
levels do not interfere with important life history functions and
behavior of these whales to be an essential feature of this critical
habitat. This feature is found in both areas 1 and 2.
Based on the best scientific data available of the ecology and
natural history of Cook Inlet beluga whales and their conservation
needs, we have determined the following physical or biological features
are essential to the conservation of this species:
1. Intertidal and subtidal waters of Cook Inlet with depths <30
feet (9.1 m) (MLLW) and within 5 miles (8.0 km) of high and medium flow
accumulation anadromous fish streams;
2. Primary prey species consisting of four (4) species of Pacific
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific
cod, walleye pollock, saffron cod, and yellowfin sole;
3. The absence of toxins or other agents of a type or amount
harmful to beluga whales;
4. Unrestricted passage within or between the critical habitat
areas; and
5. Absence of in-water noise at levels resulting in the abandonment
of habitat by Cook Inlet beluga whales.
All of these features are found or identified within the areas
proposed as critical habitat.
Critical Habitat Boundaries
NMFS' ESA regulations relevant to describing a geographical area
and ``specific areas'' state that ``each critical habitat will be
defined by specific limits using reference points and lines as found on
standard topographic maps of the area'' (50 CFR 424.12). These
regulations require that we also identify the state(s), county(ies), or
other local governmental units within which all or part of the critical
habitat is located. However, the regulations note that such political
units typically would not constitute the boundaries of critical
habitat. In addition, the regulations state that ephemeral reference
points (e.g., trees, sand bars) shall not be used in defining critical
habitat.
We have limited information on the distribution and occurrence of
Cook Inlet beluga whales within tributary waters of Cook Inlet.
Traditional Knowledge of Alaska Native hunters tells us these whales
have occurred several miles up the Susitna and Beluga Rivers in past
years, and whales have been observed above tidewater in the Knik River
at Turnagain Arm. We propose critical habitat be bounded on the upland
by Mean Higher High Water (MHHW) datum, the lower reaches of certain
important tributary waters entering the Inlet, and the following
descriptions:
(1) Area 1. All marine waters of Cook Inlet north of a line
connecting Point Possession (61.04[deg] N., 150.37[deg]. W) and the
mouth of Threemile Creek (61.0855[deg] N., 151.0440[deg] W.), including
waters of the Susitna River south of 61.33.33 N latitude, the Little
Susitna River south of 61.30[deg] N. latitude, and the Chikaloon River
north of 60.8833[deg] N. latitude.
(2) Area 2. All marine waters of Cook Inlet south of a line
connecting Point Possession (61.04[deg] N., 150.37[deg] W.) and the
mouth of Threemile Creek (61.0855[deg] N., 151.0440[deg] W.) and north
of 60.25[deg] N latitude, including waters within 2 nautical miles (3.2
km) of MHHW along the western shoreline of Cook Inlet between
60.25[deg] N. latitude and the mouth of the Douglas River (59.04[deg]
N., 153.45[deg] W.); all waters of Kachemak Bay east of 40.00 W
longitude; and waters of the Kenai River below the Warren Ames bridge
at Kenai, Alaska.
Special Management Considerations or Protection
An occupied area may be designated as critical habitat only if it
contains physical and biological features that ``may require special
management considerations or protection.'' It is important to note the
term ``may require special management considerations or
[[Page 63088]]
protection'' refers to the physical or biological features, rather than
the area proposed as critical habitat. Neither the ESA nor NMFS
regulations define the ``may require'' standard. We interpret it to
mean that a feature may presently or in the future require special
management considerations or protection. 50 CFR 424.02(j) defines
``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.''
We considered whether the PCEs identified for Cook Inlet beluga whales
may require special management considerations or protection. In our
initial determination, we considered whether there is:
(a) Presently a negative impact on the feature(s);
(b) A possible negative impact on the feature in the future;
(c) Presently a need to manage the feature(s); or
(d) A possible need to manage the feature(s) in the future.
Intertidal and subtidal waters of Cook Inlet with depths <30 feet
(MLLW) and within 5 miles (8.0 km) of high and medium flow anadromous
fish streams support important beluga feeding habitat because of their
shallow depths and bottom structure, which act to concentrate prey and
aid in feeding efficiency by belugas. The physical attributes of this
PCE could be modified or lost through filling, dredging, channel re-
alignment, dikes, and other structures. Within navigable waters, the
Army Corps of Engineers has jurisdiction over these actions and
structures and administers a permit program under the Rivers and
Harbors Act and Clean Water Act. In establishing these laws, it was the
intent of the U.S. Congress to regulate and manage these activities.
The Clean Water Act (CWA) was created to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.
Section 404 of the CWA regulates the discharge of fill materials into
these waters, noting concerns with regard to water supplies, shellfish
beds, fishery areas, and spawning and breeding areas. The intent of
Congress to protect these features indicates that they may require
special management considerations or protection.
Four (4) species of Pacific salmon (Chinook, sockeye, chum, and
coho), Pacific eulachon, Pacific cod, walleye pollock, saffron cod, and
yellowfin sole constitute the most important food sources for Cook
Inlet beluga whales as identified through research and as held by the
traditional wisdom and knowledge of Alaska Natives who have
participated in the subsistence hunting of these whales. Stomach
analysis of Cook Inlet beluga whales has found these species constitute
the majority of consumed prey by weight during summer/ice free periods.
All of these species are targeted by commercial fisheries, and some are
prized by sport fishermen. The recognition of harm due to
overexploitation and the need for continued management underlie the
efforts of the state and Federal government to conserve these species.
The fisheries in state waters of Cook Inlet are managed under various
management plans. In addition to commercial fisheries, State plans
manage subsistence, sport, guided sport, and personal use fisheries.
Federal fisheries management plans provide for sustainable fishing in
Federal waters of lower Cook Inlet. These regulatory efforts indicate
that these four fish species may require special management
considerations or protection.
Cook Inlet is the most populated and industrialized region of the
state. Its waters receive various pollutant loads through activities
that include urban runoff, oil and gas activities (discharges of
drilling muds and cuttings, production waters, treated sewage effluent
discharge, deck drainage), municipal sewage treatment effluents, oil
and other chemical spills, fish processing, and other regulated
discharges. The U.S. Environmental Protection Agency (EPA) regulates
many of these pollutants, and may authorize certain discharges under
their National Pollution Discharge Elimination System (section 402 of
the CWA). Management of pollutants and toxins is necessary to protect
and maintain the biological, ecological, and aesthetic integrity of
Cook Inlet's waters. Accordingly, ensuring the absence of toxins or
other agents of a type or amount harmful to beluga whales may require
special management considerations or protection.
Certain actions may have the effect of reducing or preventing
beluga whales from freely accessing the habitat area necessary for
their survival. Dams and causeways may create physical barriers, while
noise and other disturbance or harassment might cause a behavior
barrier, whereby the whales reach these areas with difficulty or, in a
worst case, abandon the affected habitat areas altogether due to such
stressors. Most in-water structures would be managed under several on-
going Federal regulatory programs (e.g., CWA). Regulation for behavior
barriers is less clear. Any significant behavioral reaction with the
potential to injure whales may be prohibited under the provisions of
the ESA and MMPA. However, it is unclear whether these two acts could
manage this proposed feature in the absence of designation of critical
habitat and recognition of this PCE. The unrestricted passage within or
between critical habitat areas may require special management
considerations or protection.
We have discussed the importance of sound to beluga whales, and
concern for man-made noise in their environment. There exists a large
body of information on the effects of noise on beluga whales. Research
on captive animals has found noise levels that result in temporary
threshold shifts in beluga hearing. Based on this research and
empirical data from belugas in the wild, we have established in-water
noise levels that define when these animals are harassed or injured. We
consider the threshold for acoustic harassment to be 160 dB re: 1
microPa for impulsive sounds (e.g., pile driving) and 120 dB re: 1
microPa for continuous noise.
No specific mechanisms presently exist to regulate in-water noise,
other than secondarily through an associated authorization. Even then,
there is some question whether the authorizing state, local, or Federal
agency has the authority to regulate noise. Because of the importance
of the ability to use sound to Cook Inlet beluga whales, the absence of
in-water noise at levels harmful to the whales is an essential feature
that may require special management considerations or protection.
While these PCEs are currently subject to the aforementioned
regulatory management, there remain additional and unmet management
needs owing to the fact that none of these management regimes is
directed at the conservation and recovery needs of Cook Inlet beluga
whales. This reinforces the finding that each of the identified PCEs
``may require special management considerations.''
Areas Outside the Geographical Area Occupied by the Species
Section 3(5)(A)(ii) of the ESA defines critical habitat to include
specific areas outside the geographical area occupied by the species
only if the Secretary determines them to be essential for the
conservation of the species. Section 3(3) of the ESA defines
conservation as ``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 Act are no longer
necessary.'' NMFS' ESA regulations at 424.12(e) state that the
[[Page 63089]]
agency ``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.'' We are not proposing to designate
any areas not occupied at the time of listing because any such areas
are presently unknown (if they exist), and the value of any such
habitat in conserving this species cannot be determined.
Activities That May be Affected by This Action
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 consultation under section 7
of the ESA. Such activities include: coastal development; pollutant
discharge; navigational projects (dredging); bridge construction;
marine tidal generation projects; marine geophysical research; oil and
gas exploration, development, and production; Department of Defense
activities; and hydroelectric development. We do not propose to include
in critical habitat any manmade structures and the land on which they
rest within the described boundaries that were in existence at the time
of designation. While these areas would not be directly affected by
designation, they may be affected if a Federal action associated with
the area/structure (e.g., a discharge permit from the EPA) might have
indirect impacts to critical habitat.
Consistent with recent agency guidance on conducting adverse
modification analyses, 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. These
activities are discussed further in the following sections.
Impacts of Designation
ESA Section 4(b)(2) provides that ``the Secretary shall designate
critical habitat . . . on the basis of the best scientific data
available and after taking into consideration the economic impact,
impact to national security, and any other relevant impact of
specifying any particular area as critical habitat.'' The primary
impact of a critical habitat designation comes from the ESA section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to result in the destruction or adverse modification of critical
habitat. Determining this impact is complicated by the fact that
section 7(a)(2) contains the additional requirement that Federal
agencies must ensure their actions are not likely to jeopardize the
species' continued existence. The true impact of designation is the
extent to which Federal agencies modify their actions to ensure their
actions are not likely to adversely modify the critical habitat-beyond
any modifications they would make because of the listing and
requirement to avoid jeopardizing the continued existence of the listed
species. Additional impacts of designation include state and local
protections that may be triggered as a direct result of designation,
and benefits that may arise from education of the public to the
importance of an area for species conservation. We did not identify
state or local protections that may be triggered by this proposed
designation, but have identified educational benefits. We discuss
educational benefits in the ``Benefits of Designation'' section below.
We have sought to predict the incremental change in Federal agency
activities as a result of critical habitat designation and the adverse
modification prohibition, beyond the changes predicted to occur as a
result of the listing and the jeopardy prohibition, to the fullest
extent practicable, given available information and scientific
knowledge. We examined the types of activities that may be federally
authorized, funded, or undertaken that have the potential to affect
Cook Inlet beluga whale critical habitat. We identified several
specific categories of activities and/or economic sectors that may
affect Cook Inlet beluga critical habitat and, therefore, would be
subject to ESA section 7's adverse modification requirements. These
include: fishing (commercial, sport, personal-use, and subsistence),
marine transportation (vessel traffic, port development, transshipment
of goods, ferry and cruise ship activity), energy (oil and natural gas,
coal, geothermal, wind, and tidal generation), tourism/recreation,
cultural and social (Alaska Native access), large-scale infrastructure
(Knik Arm crossing, highway and bridge retrofitting projects along
Turnagain Arm), public education/science (environmental education,
public policy development, and decision-making), national defense (Fort
Richardson and Elmendorf AFB), and water quality management (waste
water discharges, municipal treatment facilities, oil and other toxin
spills).
We next considered the range of modifications we might recommend
during consultation on these activities to avoid the destruction or
adverse modification of Cook Inlet beluga whale critical habitat. A
draft economic report describes in detail the actions that may be
affected, the potential range of modifications we might recommend for
those actions, and the estimate of economic impacts that might result
from such changes (Entrix, 2009). The report describes the likelihood
of an ESA section 7 consultation resulting in changes to each type of
action. This report is available on the NMFS Alaska Region Web site at
http:// www.akr.noaa.gov/. We are soliciting comments on our analysis
of impacts and their potential benefits and costs.
General Analytic Approach
To evaluate potential impacts of designation, we first identified
activities or actions that may affect Cook Inlet beluga whale critical
habitat and, therefore, be subject to ESA section 7 consultation. We
then identified and assessed the costs of the critical habitat
designation to each of these, as well as any substantial benefits to
recreation, subsistence uses, education, and the other sectors
identified above.
When there were sufficient empirical data and supporting
information, we used an incremental approach in assessing the economic
and other impacts of the critical habitat designation. When there was
insufficient information with which to objectively disentangle impacts
between those occurring from the listing and those occurring from the
critical habitat designation, we identified the impacts as co-
extensive. In other words, in those situations, we identified all
potential costs and benefits resulting from section 7 consultation,
regardless of whether they are wholly and uniquely attributable to
``adverse modification'' or whether they result from the ``jeopardy''
prohibition of section 7. Next, based upon an extensive national survey
of U.S. Fish and Wildlife Service (USFWS) section 7 consultations, we
apportioned the co-extensive impacts in such a way as to isolate only
those costs attributable to critical habitat designation. (In 2002,
Industrial Economics, Inc. (IEc.) reviewed the consultation records
from several U.S. Fish & Wildlife Service field offices across the
country and analyzed the administrative costs of such consultations,
based on data from the Federal Government Schedule Rates, Office of
Personnel Management, 2007. IEc. developed an algorithm to allocate co-
extensive costs between those that
[[Page 63090]]
are attributable to the listing decision and those that are
attributable to the critical habitat designation. NMFS relied on that
algorithm to similarly apportion co-extensive impacts here.)
We allocated the impacts to each critical habitat area. In
considering potential impacts for each area, we kept in mind certain
analytical limitations. First, not all activity types are equally
likely to incur changes as a result of ESA section 7 consultation
within each activity type. Second, estimates are based on potential
changes, so there is a wide range of estimated impacts. Third, in
balancing the benefits of designation against the benefits of
exclusion, we gave greater weight to changes we considered ``likely''
or ``potential,'' than to changes we considered ``unlikely.''
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 critical 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.
In addition to the direct benefits of critical habitat designation
to the Cook Inlet beluga whales, there will be ancillary benefits.
These other benefits may be economic in nature, or they may be
expressed through beneficial changes in the ecological functioning of
Cook Inlet. For example, an increase in the beluga whale population
could induce growth of an active whale watching industry sector, with
benefits flowing to a wide range of suppliers of support goods and
services (e.g., lodging, restaurants, tourist services, marine
services). Another example could be the resumption of traditional
subsistence harvests of beluga whales in Cook Inlet, to the extent that
designation of critical habitat may result in the recovery of this
population to levels that would sustain a harvest. This consequence
would have important social and cultural value. Yet another example
could be reduced levels of pollution in Cook Inlet, with associated
benefits accruing to a suite of ecological services, culminating in an
improved quality of life for Cook Inlet residents and visitors, alike.
With sufficient information, it is possible to monetize many of the
benefits of critical habitat designation.
To determine the direct benefits of critical habitat designation,
we would have to first quantify the ecological and biological benefits
accruing to the Cook Inlet beluga whale population expected from ESA
section 7 consultation (for example, the number of whales saved or the
increase in their longevity, health, productivity, etc., deriving from
protection of critical habitat), and then translate those benefit
streams into dollars (for example, using information about society's
willingness-to-pay to achieve these outcomes). For the ancillary
benefits, monetizing impacts would require quantifying the effects of
critical habitat protection to these other potential sources of
benefits, and then translating these impacts into comparable (i.e.,
discounted present value) dollars, employing the appropriate rate of
social time preference, and projecting the schedule at which benefits
would accrue, over time.
While conceptually achievable, we are not aware of any such
analysis having been completed for Cook Inlet beluga whales or their
critical habitat. A research project that intends to address these
specific issues for the Cook Inlet beluga whale has been initiated by
researchers at NOAA's Alaska Fisheries Science Center. That research is
in the very early design and development stage, with even preliminary
results not anticipated for, perhaps, several years.
ESA section 4(b)(2) requires us also to consider impacts other than
economic impacts. These can be equally difficult to monetize; for
example, we lack information to monetize the benefits to national
security from excluding certain areas from the critical habitat
designation. Given the lack of information that would allow us either
to quantify or monetize the benefits of designating critical habitat,
we have determined the ``qualitative conservation benefits'' of
designating each of the two particular areas identified as critical
habitat for Cook Inlet beluga whales.
In determining the benefit of designation for each area, we
considered a number of factors. We took into account the physical and
biological features present in the area, the types of human activities
that may threaten these features occurring in and/or adjacent to the
area, and the likelihood that designation would lead to changes in
those activities, either because of an ESA section 7 consultation or
because of the educational effect of designation. We also considered
that each area is unique and supports a distinct and critical aspect of
the whales' life history. This consideration is described in the
4(b)(2) preparatory analysis supporting this proposed rule and
summarized above (Proposed Critical Habitat).
Designation of critical habitat in Area 1 is likely to improve the
ability of an ESA section 7 consultation to focus on Cook Inlet
nearshore areas, beluga prey species, water quality, and passage
conditions, as essential biological features of the whales' habitat. As
the most industrialized and populated region of the State, Area 1
receives high volumes of waste discharge. Designation of this area as
critical habitat is likely to improve the ability of a section 7
consultation to affect water quality management activities, though we
have little information at this time to predict what those actions may
be, or how such actions may be changed, as a result of section 7
consultation. We believe critical habitat designation will provide
significant conservation benefits to beluga whales, particularly in
Area 1, because of its educational value for all users of the upper
Inlet. If we can publicly highlight that the area is ``critical
habitat'' for the whales, it will strengthen the messages to all users,
whether industrial, municipal, commercial, tribal, recreational, or
residential of their impacts upon, and responsibility for, the upper-
Inlet area. Because Area 1 contains most of what we consider high-value
foraging habitat, designation is likely to increase awareness of this
habitat value and the need for special attention to issues that might
degrade, diminish, or otherwise adversely impact this habitat.
Area 2 contains areas known to provide foraging and overwintering
areas for Cook Inlet belugas, and is generally more remote and less
intensively developed than Area 1. Designation of critical habitat will
heighten public awareness of the beluga's use of, and dependence upon,
this habitat. It would also have many of the benefits described for
Area 1.
ESA Section 4(a)(3)(B)(i) Analysis
Section 4(a)(3)(B)(i) of the ESA provides: ``The Secretary shall
not designate as critical habitat any lands or other geographic areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such a plan provides benefit
to the species for which critical habitat is proposed for
designation.'' In response to the ANPR, we have received a request from
the U.S. Air Force to
[[Page 63091]]
exempt Elmendorf Air Force Base (EAFB) from the designated critical
habitat. The Air Force seeks this exemption based on the existence of
an Integrated Natural Resource Management Plan (INRMP), consistent with
Public Law 108-136. However, because this military property extends
seaward to MHHW and we have not proposed to designate as critical
habitat any tributary waters within the EAFB areas covered by the
INRMP, no portions of the EAFB areas overlap with the proposed critical
habitat. Section 4(a)(3)(B)(i)'s exemption is therefore unnecessary and
inapplicable to those areas. In the event that the proposed critical
habitat boundaries might change in the final rule, we will evaluate
this request and the benefit of the Elmendorf INRMP in providing for
the conservation of the Cook Inlet beluga whale.
We have also considered exclusion under ESA section 4(a)(3)(B)(i)
for a military live-fire practice range on Fort Richardson, near
Anchorage. The Eagle River Flats range (ERF) provides training in
artillery such as mortars. While the boundaries for the ERF (i.e., the
MHHW line) do not overlap with the proposed critical habitat, the
firing range includes the lower reaches of Eagle River which could have
been included in the designation (similar to the Susitna and Little
Susitna Rivers). Research by Fort Richardson has documented beluga
whale use, including feeding behavior, within this portion of Eagle
River.
We have considered the INRMP for Fort Richardson and whether that
plan provides benefit for the Cook Inlet beluga whale. Based on our
consideration of these factors, we conclude the Fort Richardson INRMP
provides benefits for the Cook Inlet beluga whale and the exclusion of
the ERF is consistent with section 4(a)(3)(B)(i) of the ESA. Therefore,
the proposed designation does not include any area within the ERF.
However, areas outside the area covered by the INRMP, such as those
areas outside of and surrounding the ERF range, are not subject to the
exemption contained in section 4(a)(3)(B)(i).
ESA Section 4(b)(2) Analysis
We have described the specific areas that fall within the ESA
section 3(5) definition of critical habitat and that are eligible for
designation as critical habitat. Section 4(b)(2) of the ESA requires
the Secretary to consider the economic impact, impact on national
security, and any other relevant impact of designation. The Secretary
has the discretion to exclude any particular area from designation if
he determines the benefits of exclusion outweigh the benefits of
designation of that particular area, 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. The
authority to exclude any particular area from the critical habitat
designation is discretionary.
To determine the ``benefits of excluding a particular area,'' we
considered the previously-discussed Federal activities that have the
potential to be changed, as a direct result of a section 7 consultation
and application of the prohibition against destroying or adversely
modifying critical habitat. We considered changes to those actions that
could potentially be required to avoid destroying or adversely
modifying critical habitat, regardless of whether the changes could
also potentially be required to avoid jeopardizing the whales'
continued existence. When both ``adverse modification'' and
``jeopardy'' considerations were present, we apportioned the respective
shares of the impacts of consultation, as described above, in the
discussion of our General Analytic Approach. We also considered
economic benefits of excluding each ``particular'' area, and considered
national security benefits of excluding particular areas, based on
military ownership, interests, or control.
ESA section 4(b)(2) does not specify a method for the weighing
process. Agencies are frequently required to balance benefits of
regulations against impacts. Executive Order (E.O.) 12866 most recently
established this requirement for Federal agency regulation. Executive
branch guidance from the Office of Management and Budget (OMB) suggests
that benefits should first be monetized (converted into dollars).
Benefits that cannot be monetized should be quantified (converted into
units). Where benefits can be neither monetized nor quantified,
agencies are to describe the expected benefits (U.S. Office of
Management and Budget, Circular A-4, September 17, 2003 (OMB, 2003)).
The draft economic report (Entrix, 2009) describes in detail, the
actions that may be affected and the estimate of economic impacts that
might result from critical habitat designation.
Section 4(b)(2) of the ESA requires that we balance the benefit of
designation against the benefit of exclusion for each particular area.
The benefit to the species of designation depends upon the 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 destruction or 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 anthropogenic threats that face each area, and the
likelihood that the destruction or adverse modification prohibition
will enhance our ability to address those threats. Based upon the best
available science, and the Regulatory Impact Review (RIR)/4(b)(2)
preparatory analysis/Initial Regulatory Flexibility Analysis (IRFA), we
believe designation of critical habitat will enhance our ability to
address many of these threats, either through an ESA section 7
consultation or through ongoing public outreach and education. Because
some of these threats bear a stronger relationship to adverse
modification than to jeopardy, we also believe there is an incremental
benefit of designation beyond the protection afforded by the jeopardy
prohibition.
The benefit of designation also depends on the conservation value
of the area. The habitat areas for Cook Inlet beluga whales are unique
and irreplaceable. Each of the proposed critical habitat areas supports
a distinct aspect of the whales' life history, and the conservation
function of each area complements the conservation function of the
other. Therefore, designation of each critical habitat area benefits
the conservation function of the other area. For all of the reasons
discussed above, we consider the benefit of designation of each area
(when taken in its entirety) 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, either in response to critical habitat designation, or as a
result of that consultation. As with the benefit of the 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 inclusion) 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 destruction or adverse modification prohibition to each
threat. Because adverse modification and jeopardy bear an equally
strong
[[Page 63092]]
relationship to many activities, we gave these costs of designation
moderate weight. We recognize that we have not monetized (quantified)
the costs that may be associated with the education benefit of
designation.
Section 4(b)(2) requires consideration of national security
interests, in addition to any economic factors. Possible impacts to
national security due to designation of critical habitat include:
preventing, restricting, or delaying training access to these sites;
restricting or delaying training activities; and delaying response
times for troop deployments and overall operations. The benefit of
excluding these particular areas may include that the Department of
Defense would only be required to comply with the jeopardy prohibition
of ESA section 7(a)(2) and not the adverse modification prohibition.
However, unless the areas excluded include areas outside and beyond the
military properties, it is possible that consultation would continue to
include impacts to critical habitat, because of the requirement to
consider indirect, as well as direct impacts.
Two military installations may be affected by designation of
critical habitat for Cook Inlet beluga whales. These are the Fort
Richardson Army Base and Elmendorf Air Force Base, both located
immediately adjacent to the critical habitat Area 1. Additionally, the
Department of Defense has operational issues associated with the Port
of Anchorage. The draft economic report presents economic costs
associated with designation for the two installations.
In response to the ANPR, we received a request to delete the Port
of Anchorage (POA) from the proposed critical habitat. The POA cites
the designation of the Port as a Strategic Military Seaport by the
Department of the Army's Military Surface and Distribution Command as
justification for their request. We have requested additional
information from the POA regarding this specific request for inclusion
in the final 4(b)(2) analysis, but we do not propose this exclusion.
Therefore, at present, no finding has been made on this request.
We did not identify other relevant impacts of designation beyond
economic impacts and impacts on national security.
At present, we believe that the benefits of excluding any
particular area do not outweigh the benefits of designating those areas
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 critical elements of this habitat.
Public Hearings
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at
least one public hearing if any person requests one within 45 days of
publication of a proposed rule to designate critical habitat. Such
hearings provide the opportunity for interested individuals and parties
to give opinions, exchange information, and engage in a constructive
dialogue concerning this proposed rule. We encourage the public's
involvement in this matter. Based on the level of past interest in
Federal actions concerning Cook Inlet beluga whales, we intend to
conduct at least one public hearing. A notice of this and any
additional hearings will appear in the Federal Register, local
newspapers, and on our website at least 2 weeks prior to the meeting.
Classifications
Clarity of the Rule
E.O. 12866 requires each agency to write regulations and notices
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the proposed rule
clearly stated? (2) Does the proposed rule contain technical jargon
that interferes with its clarity? (3) Does the format of the proposed
rule (grouping and order of the sections, use of headings,
paragraphing, etc.) aid or reduce its clarity? (4) What else could we
do to make this proposed rule easier to understand? You may send
comments on how we could make this proposed rule easier to understand
to one of the addresses identified in the ADDRESSES section.
Regulatory Planning and Review
In accordance with E.O. 12866, this document is a significant rule
and has been reviewed by the OMB. As noted above, we have prepared
several reports to support and assess the exclusion process under
section 4(b)(2) of the ESA. The economic benefits and costs of the
proposed critical habitat designations are described in our draft
economic report (i.e. RIR/4(b)(2) preparatory analysis/IRFA).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must either certify
that the action is not likely to result in significant adverse economic
impacts on a substantial number of small entities; or 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).
NMFS has prepared an initial regulatory flexibility analysis (IRFA) and
this document is available upon request or see our web site (see
ADDRESSES). This IRFA evaluates the potential effects of the proposed
critical habitat designation on federally regulated small entities. The
reasons for the action, a statement of the objectives of the action,
and the legal basis for the proposed rule, are discussed earlier in the
preamble. A summary of the analysis follows.
The small entities that may be directly regulated by this action
are those that seek formal approval (e.g., a permit) from, or are
otherwise authorized by, a Federal agency to undertake an action or
activity that ``may affect'' critical habitat for the Cook Inlet beluga
whale. Submission by a small entity of such a request for a Federal
agency's approval would require that agency (i.e., the `action agency')
to consult with NMFS (i.e., the `consulting agency').
Consultations vary from simple to highly complex, depending on the
specific facts of each action or activity for which application is
made. Attributable costs are directly proportionate to complexity. In
the majority of instances projected to take place under the proposed
critical habitat designation, these costs are expected to accrue solely
to the Federal agencies that are party to the consultation. In only the
most complex formal consultations, a private sector applicant might
incur costs directly attributable to the designation consultation
process. For example, if the formal consultation concludes that the
proposed activity is likely to destroy or adversely modify critical
habitat, the applicant will have to implement modifications to avoid
such effects. These modifications have the potential to result in
adverse economic impacts, although they need not necessarily do so.
An examination of the Federal agencies with management,
enforcement, or other regulatory authority over activities or actions
within, or immediately adjacent to, the proposed critical habitat area,
resulted
[[Page 63093]]
in the following list: the Army Corps of Engineers (COE), EPA, Minerals
Management Service (MMS), Maritime Administration (MARAD), U.S. Coast
Guard (USCG), Department of Defense (DOD), NOAA Fisheries Service
(NMFS), Federal Highway Administration (FHWA), Federal Energy
Regulatory Commission (FERC), and Federal Aviation Administration
(FAA). Activities or actions with a nexus to each, and which may be
expected to require some level of consultation, include: COE permits
for structures and work in waters of the United States; EPA permitting
of discharges under the National Pollutant Discharge Elimination
System; MMS oil and gas exploration and production permitting in
Federal waters of Cook Inlet; MARAD permits for the Port of Anchorage
expansion; USCG permits for spill response plans; DOD activities at the
Army's Fort Richardson and Air Force's Elmendorf facilities; NMFS
authorizations of commercial fisheries, and review of subsistence
harvest allowances; FHWA funding of highway and bridge improvements
along Turnagain Arm; FERC permits for turbine electrical generation
projects (wind and tidal); FAA permitting of regional airport
expansions and development.
A 10-year ``post-critical habitat designation'' analytical horizon
was adopted, during which time NMFS may reasonably expect to consult on
critical habitat-related actions with one or more of the action
agencies identified above. The majority of the consultations are
expected to be ``informal'' (we estimate ninety percent of all
consultations would be informal). In each of these, no adverse impacts
would accrue to the entity seeking a permit, authorization, etc. The
more complex and costly ``formal'' consultations are projected to
account for, perhaps, ten percent. Here, NMFS and the Federal action
agency may develop alternatives that prevent the likelihood that
critical habitat will be destroyed or adversely affected. The extent to
which these ``formal'' consultations will result in more than de
minimus third party costs, as well as whether such third parties
constitute small entities for Regulatory Flexibility Act purposes,
cannot be predicted, a priori. Often, no consultation will be
necessary, as all questions can be resolved through the ``technical
assistance'' process.
We lack sufficient information to estimate precisely the number of
consultations that may result in a determination of destruction or
adverse modification to critical habitat. However, on the basis of the
underlying biological, oceanographic, and ecological science used to
identify the PCEs that define critical habitat for the Cook Inlet
beluga whale, as well as the foregoing assumptions, empirical data,
historical information, and accumulated experience regarding human
activity in Cook Inlet, we believe that various federally authorized
activities have the potential to ``destroy or adversely modify'' Cook
Inlet beluga whale critical habitat. While we are unable to predict in
advance exactly which activities might result in the destruction of
adverse modification of the proposed critical habitat, we note that
such activities are restricted to those actions impacting the
identified essential features, or PCEs. Importantly, however, an action
that may adversely affect a PCE is not necessarily one that will result
in the destruction or adverse modification of the proposed critical
habitat.
Executive Order 13211
On May 18, 2001, the President issued an E.O. on regulations that
significantly affect energy supply, distribution, and use. E.O. 13211
requires agencies to prepare Statements of Energy Effects when
undertaking any action that promulgates or is expected to lead to the
promulgation of a final rule or regulation that (1) is a significant
regulatory action under E.O. 12866 and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
NMFS has considered the potential impacts of this action on the
supply, distribution, or use of energy and finds the designation of
critical habitat will not have impacts that exceed the thresholds
identified above.
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 proposed rule will not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute or
regulation that would impose an enforceable duty upon State, local,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC 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 who 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 the take of this species both
within and outside of the designated areas, we do not anticipate that
this proposed rule will significantly or uniquely affect small
governments. As such, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630, the proposed rule does not have
significant takings implications. A takings implication assessment is
not required. The designation of critical habitat
[[Page 63094]]
affects only Federal agency actions. Private lands do not exist within
the proposed critical habitat and therefore would not be affected by
this action.
Federalism
In accordance with E.O. 13132, this proposed rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of Commerce policies, we request
information from, and will coordinate development of, this proposed
critical habitat designation with appropriate state resource agencies
in Alaska. The proposed designation may have some benefit to state and
local resource agencies in that the areas essential to the conservation
of the species are more clearly defined, and the PCEs of the habitat
necessary to the survival of Cook Inlet beluga whale are specifically
identified. While making this definition and identification does not
alter where and what federally sponsored activities may occur, it may
assist local governments in long-range planning (rather than waiting
for case-by-case ESA section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988, the Department of Commerce has
determined that this proposed rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order. We are proposing to designate critical habitat in accordance
with the provisions of the ESA. This proposed rule uses standard
property descriptions and identifies the PCEs within the designated
areas to assist the public in understanding the habitat needs of the
Cook Inlet beluga whale.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. This 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
NMFS has determined that an environmental analysis as provided for
under the National Environmental Policy Act of 1969 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
The longstanding 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. Public Law 108-199 (2004), codified in
notes to 25 U.S.C.A. Sec. 450, requires all Federal agencies to
consult with Alaska Native corporations on the same basis as Indian
tribes under this Executive Order.
NMFS has determined the proposed designation of critical habitat
for the Cook Inlet beluga whale in Cook Inlet, Alaska, would not have
tribal implications, nor affect any tribal governments or Native
corporations. Although the Cook Inlet beluga whale may be hunted by
Alaska Natives for traditional use or subsistence purposes, none of the
proposed critical habitat areas occurs on tribal lands, affects tribal
trust resources, or the exercise of tribal rights.
References Cited
A complete list of all references cited in this rulemaking can be
found on our website at http://www.fakr.noaa.gov/ and is available upon
request from the NMFS office in Juneau, Alaska (see ADDRESSES section).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: November 24, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, we propose to amend part
226, title 50 of the Code of Regulations, as set forth below:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
2. Add a new Sec. 226.220 as follows:
Sec. 226.220 Critical habitat for the Cook Inlet beluga whale.
Critical habitat is designated in Cook Inlet, Alaska, for the Cook
Inlet beluga whale as described in paragraphs (a) and (b) of this
section. The textual description of this critical habitat is the
definitive source for determining the critical habitat boundaries.
General location maps are provided for general guidance purposes only,
and not as a definitive source for determining critical habitat
boundaries. Critical habitat does not include manmade structures and
the land on which they rest within the designated boundaries described
in (a) (1) and (a) (2) that were in existence as of [Insert effective
date of the FINAL RULE].
(a) Critical Habitat Boundaries. Critical habitat includes two
specific marine areas in Cook Inlet, Alaska. These areas are bounded on
the upland by Mean Higher High Water (MHHW) datum, other than the lower
reaches of three tributary rivers. Critical habitat shall not extend
into the tidally-influenced channels of tributary waters of Cook Inlet,
with the exceptions noted in the descriptions of each critical habitat
area.
(1) Area 1. All marine waters of Cook Inlet north of a line from
the mouth of Threemile Creek (61[deg] 08.5' N., 151[deg] 04.4' W.)
connecting to Point Possession (61[deg] 02.1' N., 150[deg] 24.3' W.),
including waters of the Susitna River south of 61[deg] 20.0' N., the
Little Susitna River south of 61[deg] 18.0' N., and the Chikaloon River
north of 60[deg] 53.0' N.
(2) Area 2. All marine waters of Cook Inlet south of a line from
the mouth of Threemile Creek (61[deg] 08.5' N., 151[deg] 04.4' W.) to
Point Possession (61[deg] 02.1' N., 150[deg] 24.3' W.), including
waters within 2 nautical miles seaward of MHHW along the western
shoreline of Cook Inlet between 60[deg] 25' N. and the mouth of the
Douglas River (59[deg] 04' N., 153[deg] 46.0' W.); all waters of
Kachemak Bay east of 151[deg] 40.0' W.; and waters of the Kenai River
below the Warren Ames bridge at Kenai, Alaska.
(b) A map of the proposed critical habitat for Cook Inlet beluga
whale follows.
[[Page 63095]]
[GRAPHIC] [TIFF OMITTED] TP02DE09.040
(c) Primary constituent elements. The primary constituent elements
essential to the conservation of Cook Inlet beluga whales are:
(1) Intertidal and subtidal waters of Cook Inlet with depths <30
feet (MLLW) and within 5 miles of high and medium flow anadromous fish
streams.
(2) Primary prey species consisting of four (4) species of Pacific
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific
cod, walleye pollock, saffron cod, and yellowfin sole.
(3) The absence of toxins or other agents of a type or amount
harmful to beluga whales.
(4) Unrestricted passage within or between the critical habitat
areas.
(5) The absence of in-water noise at levels resulting in the
abandonment of habitat by Cook Inlet beluga whales.
[FR Doc. E9-28760 Filed 12-1-09; 8:45 am]
BILLING CODE 3510-22-S