Endangered and Threatened Species; Designation of Critical Habitat for Southern Resident Killer Whale, 69054-69070 [06-9453]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69054-69070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9453]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 060228057-6283-02; I.D. 022206D]
RIN 0648-AU38


Endangered and Threatened Species; Designation of Critical 
Habitat for Southern Resident Killer Whale

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule designating critical habitat for the Southern Resident 
killer whale (Orcinus orca) distinct population segment (DPS). Three 
specific areas are designated, (1) the Summer Core Area in Haro Strait 
and waters around the San Juan Islands; (2) Puget Sound; and (3) the 
Strait of Juan de Fuca, which comprise approximately 2,560 square miles 
(6,630 sq km) of marine habitat. We considered the economic impacts and 
impacts to national security, and concluded the benefits of exclusion 
of 18 military sites, comprising approximately 112 square miles (291 sq 
km), outweighed the benefits of inclusion because of national security 
impacts.
    We solicited comments from the public on all aspects of the 
proposed rule. An economic analysis, biological report, and Endangered 
Species Act (ESA) report were available for comment along with the 
proposed rule. The supporting documents have been finalized in support 
of the final critical habitat designation.

DATES: This rule becomes effective December 29, 2006.

ADDRESSES: The final rule, maps, and supporting documents used in 
preparation of this final rule, as well as comments and information 
received, are available on the NMFS Northwest Region website at https://
www.nwr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Lynne Barre at (206) 526-4745, or 
Marta Nammack at (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Under the ESA, we are responsible for determining whether certain 
species, subspecies, or distinct population segments (DPS) are 
threatened or endangered, and designating critical habitat for them (16 
U.S.C. 1533). In November 2005, we listed the Southern Resident killer 
whale DPS as endangered under the ESA (70 FR 69903; November 18, 2005). 
At the time of listing, we also announced our intention to propose 
critical habitat for the Southern Resident killer whale. Critical 
habitat for Southern Residents was proposed on June 15, 2006 (71 FR 
34571).

Killer Whale Natural History

    Three distinct forms of killer whales, termed residents, 
transients, and offshores, are recognized in the northeastern Pacific 
Ocean. Resident killer whales in U.S. waters are distributed from 
Alaska to California, with four distinct communities recognized: 
Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al., 
2002; 2004). Resident killer whales are fish eaters and live in stable 
matrilineal pods. The Southern Resident DPS consists of three pods, 
identified as J, K, and L pods, that reside for part of the year in the 
inland waterways of Washington State and British Columbia (Strait of 
Georgia, Strait of Juan de Fuca, and Puget Sound), principally during 
the late spring, summer, and fall (Ford et al., 2000; Krahn et al., 
2002). Pods visit coastal sites off Washington and Vancouver Island 
(Ford et al., 2000), but travel as far south as central California and 
as far north as the Queen Charlotte Islands. Offshore movements and 
distribution are largely unknown for the Southern Resident DPS.
    Detailed information on the natural history of Southern Residents 
is included in the Proposed Conservation Plan for Southern Resident 
Killer Whales (Orcinus orca) available at https://www.nwr.noaa.gov/ and 
was summarized in the biological report and the proposed rule to 
designate critical habitat (71 FR 34571; June 15, 2006).

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for Southern Resident killer whales (71 FR 34571; June 15, 
2006). To facilitate public participation, the proposed rule was made 
available on our regional web page and comments were accepted via 
standard mail, e-mail, and through the Federal eRulemaking portal. In 
addition to the proposed rule, several draft documents supporting the 
proposal, including a biological report, an economic report, and a 
report supporting NMFS' conclusions under Section 4(b)(2) of the ESA, 
were posted. We obtained independent peer review of the draft 
biological report (NMFS, 2006a) and draft Economic Analysis (NMFS, 
2006b) and incorporated the peer review comments into the documents 
prior to dissemination in support of the proposed rule. Two public 
hearings were held on July 12, 2006, in Seattle and July 13, 2006, in 
Friday Harbor, WA, and the public comment period closed on August 14, 
2006.
    We have considered all public comments, and they are addressed in 
the following summary. We have assigned comments to major issue 
categories and, where appropriate, have combined similar comments.

Physical or Biological Features Essential for Conservation (Primary 
Constituent Elements)

    Comment 1: In our proposed listing determination for killer whales, 
we identified potential Primary Constituent Elements (PCEs) of critical 
habitat, including ``Sound levels that do not exceed thresholds that 
inhibit communication or foraging activities or result in temporary or 
permanent hearing loss.'' Many commenters expressed concern that the 
proposed critical habitat designation did not include sound as a PCE. 
These commenters pointed out that killer

[[Page 69055]]

whales rely on sound to navigate, forage, mate, avoid predators, and 
communicate with one another. One commenter noted research findings 
that vessel effects and acoustic disturbance are stressors on killer 
whales. Another commenter pointed to study findings that suggest killer 
whales abandon certain habitats when confronted with introduced noise. 
These commenters argued that NMFS should consider sound an element of 
the physical environment of water, just as NMFS considers water 
quality, prey, and passage habitat conditions. Commenters pointed out 
that underwater, sound travels farther than above water, and, 
therefore, should be considered differently. Others pointed out that 
sound is a commonly accepted pollutant, and should be treated as such 
in the critical habitat designation. They also pointed to the inclusion 
of sound as a concern in NMFS' proposed Conservation Plan for Southern 
Residents and the 2004 Status Review. The commenters were particularly 
concerned with the impact of military sonar in Puget Sound on Southern 
Residents. Several commenters also mentioned the 2003 USS Shoup 
incident that reportedly affected Southern Resident behavior in the 
Sound as evidence of the harmful impacts of military sonar in the 
Sound. Other commenters focused on ambient noise and the noise from 
specific projects underway in the Sound as concerns for Southern 
Residents. They felt that excluding sound as a PCE would allow these 
activities to continue unmonitored for sound levels. One commenter 
argued that NMFS should extend critical habitat to the shoreline to 
prevent the impacts of noise related to nearshore activities on killer 
whales. These commenters requested NMFS reconsider sound as a PCE due 
to its importance to the species and create sound thresholds to enable 
enforcement of potential regulations.
    Response: We acknowledge the many observations about the potential 
for sound to startle or even physically injure killer whales. These 
effects, however, are direct effects to the animal itself and not to 
its habitat. The agency has already conducted several ESA section 7 
consultations on construction activities, and measures were included in 
the action to avoid direct impacts to the whales. Regarding the comment 
in support of enforceable regulations to protect killer whales from 
sound, we have sound thresholds that we consider to be harassment under 
the Marine Mammal Protection Act (MMPA). We also recently announced our 
intention to consider new criteria to determine what constitutes 
``take'' under the MMPA and ESA, through preparation of an 
environmental impact statement (70 FR 1871; January 11, 2005). As that 
process unfolds, we may consider additional regulations to protect 
Southern Residents from harmful sounds.
    Continuous sounds may interfere with the whales' echolocation and 
communication. At this time, however, we lack sufficient information to 
include sound as a PCE of killer whale critical habitat. We will 
continue to consider sound in any future revisions of the critical 
habitat designation.

Geographical Area Occupied by the Species

    Comment 2: We received many comments regarding the proposal to 
designate critical habitat in waters deeper than 20 feet (6.1 m) based 
on extreme high water. The majority of commenters felt that we should 
include waters shallower than 20 feet (6.1 m) because killer whale 
prey, particularly salmon, occupy these waters, and these areas are 
essential to the conservation of the Southern Residents. The importance 
of these habitats for salmon and forage fish was the predominant 
argument for including shallow waters as critical habitat for Southern 
Residents. Several commenters argued against our assessment that the 
Southern Residents' size prevents them from occupying shallow waters, 
pointing to the activities of other killer whales that use shallow 
waters for rubbing on rock bottoms and for foraging on marine mammals 
as evidence of killer whales' ability to occupy shallow waters. In 
contrast, there were commenters who supported our determination that 
there is very little evidence to indicate that the whales occupy 
shallow waters.
    Commenters also cited the lack of a barrier between shallow and 
deep waters and mentioned that human activities occurring in shallow 
waters inevitably affect Southern Residents in deeper waters. Of 
particular concern was the fact that much of the pollution in the Sound 
enters through shallow waters and that excluding these waters from 
designation would limit our ability to address polluting activities. 
Commenters believed that including shallow waters in the critical 
habitat designation would increase the clean-up priority of 
contaminated sediments and limit industrialization. Some commenters 
listed specific projects in shallow waters that pose pollution and 
noise threats to Southern Residents. These commenters felt that 
including shallow waters would allow closer regulation of these 
projects to prevent harmful impacts on the deeper water habitat of 
Southern Residents. One commenter believed that including shallow water 
in critical habitat is necessary to ensure water quality and prey 
sustainability, two of the PCEs identified by NMFS.
    In addition, several commenters asserted that it would be difficult 
to determine a 20-foot (6.1-m) depth contour relative to extreme high 
water because such a line is not commonly found on reference maps and 
charts. We received suggestions that using the shoreline as the 
critical habitat boundary would make it easier for the public to 
understand the boundaries of critical habitat and for Federal action 
agencies to evaluate their projects and effects on critical habitat.
    Response: The overwhelming majority of comments focused on the 
importance of shallow nearshore waters for salmon and forage fish 
species. In the critical habitat proposal, we did not consider shallow 
waters (i.e., nearshore areas between the line of extreme high tide and 
a depth of 20 feet (6.1 m) relative to this line) of Puget Sound to be 
within the geographical area occupied by Southern Resident killer 
whales. While we acknowledged observations of transient whales beaching 
themselves to attack marine mammals, and those of Northern Residents 
using shallow areas at rubbing beaches, we did not have any similar 
accounts for Southern Resident whales and so requested additional 
information on use of shallow waters from the public during the comment 
period.
    We received comments providing some information on Southern 
Resident killer whale use of shallow waters. One researcher and several 
other individuals submitted accounts and photos of Southern Resident 
whales using specific shallow areas, though it was not clear if these 
areas were less than 20 feet (6.1 m) deep based on extreme high water. 
We specifically requested public comments on use of shallow areas, and 
the limited information received is not sufficient to consider all 
shallow areas as occupied.
    Joint NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide 
that we will designate unoccupied areas as critical habitat only upon a 
finding that the currently occupied habitat is inadequate for 
conservation (50 CFR 424.12(e)). At this time we lack sufficient 
information to determine that the currently occupied habitat is 
inadequate and that additional unoccupied habitat in the shallow areas 
less than 20-feet (6.1 m) deep is essential for conservation of the 
species. We will consider any new information

[[Page 69056]]

indicating that the current occupied habitat is a limiting factor for 
recovery as more research is conducted.
    The final critical habitat designation is consistent with the 
proposed rule and does not include waters shallower than 20 feet (6.1 
m) based on extreme high water. Tidal fluctuations vary at locations 
throughout the critical habitat areas, but generally, the shallow areas 
not included in the critical habitat designation are very shallow (5-10 
feet) (1.5-3m) in some tidal conditions and can even be exposed at very 
low tides. During some tidal conditions these areas are not accessible 
by the whales, and we do not have data indicating that these areas are 
frequently used by whales.
    Regarding the importance of using lines found on standard maps, we 
agree it can be problematic to draw a line at the 20-foot (6.1 m) depth 
because standard topographic maps and nautical charts do not always 
depict such a line. The line of extreme high water, however, can be 
determined using visual cues (Cowardin et al., 1979; Ritter et al., 
1996) and using site-specific tidal information and similar depth 
contours (e.g., 20 feet or 6.1 meters) found on maps and nautical 
charts to evaluate if their activities are taking place in or may 
affect designated critical habitat deeper than 20 feet (6.1 m) at 
extreme high water. Thus, Federal agencies can determine whether their 
proposed actions may affect critical habitat, and the public and other 
entities can discern where habitat critical to Southern Resident killer 
whales has been designated.
    In our proposed rule, we estimated the total area and shoreline 
proposed for designation using readily available Geographic Information 
System (GIS) data depicting Washington shorezones (Berry et al., 2000). 
These data are widely used by various state and Federal agencies in 
Puget Sound to locate and evaluate projects and activities in the 
nearshore zone. The GIS data approximate the line of ordinary high 
water, but do not include bathymetry, so we did not attempt to subtract 
the areas shallower than 20 feet (6.1 m), though areas shallower than 
20 feet are not designated as critical habitat in this final rule. We 
have used the same dataset to make calculations supporting this final 
critical habitat designation.
    Prior to issuing proposed critical habitat, we did make some 
modifications to the GIS data described above, notably, the exclusion 
of estuarine and freshwater areas upstream of river and creek mouths. 
In re-evaluating the nearshore areas proposed for critical habitat, we 
identified several small or shallow inlets, harbors, coves and bays, 
some with very narrow entrances, and obtained more detailed sighting 
information to assist with drawing a shoreline boundary for some areas. 
In most cases, the whales had not been sighted within the small water 
bodies (e.g., Drayton Harbor, Wescott Bay, Guthrie Cove, Tulalip Bay, 
Port Gardner/eastern side of Jetty Island, Chapman Cove, Big Fishtrap 
Inlet, Gull Harbor, Rocky Bay at the mouth of Rocky Creek, Taylor Bay, 
Mayo Cove, Horsehead Bay, Wollochet Bay, Mystery Bay, Eagle Harbor, 
Jarrell Cove and Sequim Bay), so we have further modified the GIS data 
to excise these areas, totaling approximately 15 square miles (39 sq. 
km), in the final designation. We did include several small harbors 
where we had reports of Southern Resident whales at the harbor 
entrances (e.g., Keystone Harbor, Gig Harbor).
    Not designating waters shallower than 20 feet (6.1 m) (based on 
extreme high water) as critical habitat does not preclude consultation 
on activities that occur in these shallow nearshore areas. ESA section 
7's requirement that Federal agencies ensure their actions aren't 
likely to adversely modify critical habitat applies equally to actions 
occurring outside as to actions occurring within designated critical 
habitat.
    Comment 3: Many commenters argued for including Hood Canal (Canal) 
in the critical habitat designation. Commenters reported sightings of 
Southern Residents in the Canal, and asserted that until the 1980s 
Southern Residents regularly visited the Canal, making the Canal part 
of the home range of the species. These commenters felt we used too 
short of a time frame in our assessment and that a longer time frame of 
up to 20 years would result in the inclusion of Hood Canal in the 
designation. Others noted that transient killer whales use the Canal 
frequently, and, therefore, it should be designated critical habitat. 
Some commenters expressed concern that exclusion from designation would 
allow further development of the Canal, strip mining, industrial harbor 
pollution, continued sewer runoff into the Canal, and heavy commercial 
traffic, harming the Canal's ecosystem, contributing to low oxygen 
levels, and further discouraging Southern Residents from using its 
waters. Many commenters felt that Hood Canal and its salmon populations 
should be a top concern for NMFS, predicting that with salmon recovery 
in the waterway, Southern Residents would return to seek out prey. 
These commenters felt strongly that protecting Southern Resident food 
sources, specifically salmon, was reason enough to designate Hood Canal 
critical habitat. All of these commenters believe Hood Canal is 
essential to the recovery of Southern Residents.
    Response: Section 3(5)(A) of the ESA defines critical habitat as 
areas either occupied or not occupied by the species ``at the time it 
is listed.'' We relied on the best available information on killer 
whale distribution to develop the proposed critical habitat areas. The 
sighting data we received from the Whale Museum included sightings of 
Southern Residents from 1990-2003, which was the most reliable 
information in their long-term database. Whales were identified by pod 
when possible, and sightings of transients, northern residents, and 
offshore whales were not included in the Whale Museum data set. There 
were no sightings of Southern Resident killer whales reported in Hood 
Canal from 1990-2003. In addition to the sighting data, we received one 
report of a sound recording made in Hood Canal from 1995, which was 
confirmed as calls of Southern Residents. Based on the one recording, 
we did not consider Hood Canal as occupied by the species at the time 
of listing. Commenters compared the one occurrence of Southern 
Residents in Hood Canal in 1995 to the areas in South Puget Sound that 
also had small numbers of sightings. The Puget Sound sightings, 
however, were often more than one sighting, were more recent, and were 
contiguous with areas of greater numbers of sightings. In contrast, 
Hood Canal has a narrow entrance, and its waters are not adjacent to 
areas with regular sightings.
    The information we received during the public comment period 
included three additional sightings of killer whales in Hood Canal with 
sufficient information (photos, sound recordings, detailed field notes) 
to confirm that they were Southern Residents. The sound recording was 
made in 1958, the photograph was taken in 1973, and the detailed 
account was from a sighting in 1977. In addition, there were many 
anecdotal accounts of groups of whales with larger group sizes than are 
typical for transient whales and may have been Southern Residents 
spanning the 1940's-1980's. In the past, we have considered 
opportunistic or historical information on a specicies' occupied 
habitat when current documentation is not available. However, for 
Southern Residents, we have a more recent sighting record from the 
Whale Museum. Even if we increased the time span under consideration to 
20 years, it would not add any confirmed sightings of Southern 
Residents in Hood Canal at

[[Page 69057]]

the time of listing. At this time, there are not sufficient data to 
consider Hood Canal as occupied at the time of listing.
    The commenters also argued that if Hood Canal is not currently 
considered ``occupied by the species,'' it should still be designated 
as critical habitat because it contains the PCEs necessary for 
conservation (i.e., prey), and it is essential for conservation. Joint 
NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide that we 
will designate unoccupied areas as critical habitat only upon a finding 
that the currently occupied habitat is inadequate for conservation (50 
CFR 424.12(e)). At this time we lack sufficient information to 
determine that the currently occupied habitat is inadequate and that 
additional unoccupied habitat in Hood Canal is essential for 
conservation of the species. We will consider any new information 
indicating that the current occupied habitat is a limiting factor for 
recovery as more research is conducted.
    We appreciate the efforts by the Hood Canal community to gather the 
historical information on killer whale use of the area. If, as some 
predict, the whales do return to Hood Canal in response to increasing 
populations of prey species, we will continue to work with the local 
community to gather information and reevaluate the importance of Hood 
Canal as Southern Resident habitat.

Specific Areas

    Comment 4: Several commenters urged us to designate areas as 
critical habitat for killer whales if they are essential for salmon 
conservation, based on a variety of theories. Some commenters pointed 
out that nearshore areas and/or freshwater areas that support salmon 
contain physical or biological features essential for conservation of 
killer whales (those features being salmon, or the features that 
support salmon). Some commenters urged us to consider nearshore areas, 
bays, and even freshwater areas as unoccupied areas ``essential for 
conservation'' of the whales - one stating that the statutory provision 
regarding ``physical or biological features'' applies to both occupied 
and unoccupied areas and another stating that there is no statutory 
requirement for unoccupied areas to contain physical or biological 
features. One commenter stated that because nearshore and offshore 
waters are connected, it is arbitrary to draw a line separating the two 
(that is, the line we proposed at the 20-foot (6.1 m) depth).
    Response: The presence of salmon in densities and/or bathymetric 
conditions that make them available to killer whales appears to be the 
primary factor determining what areas the whales are likely to occupy. 
The fact that this essential feature is also present in areas the 
whales cannot occupy does not make those outside areas ''occupied'' in 
the statutory sense. Nor does the fact that those unoccupied areas may 
be essential to salmon make them essential to killer whale 
conservation. Joint NMFS-U.S. Fish and Wildlife Service (FWS) 
regulations provide that we will designate unoccupied areas as critical 
habitat only upon a finding that the currently occupied habitat is 
inadequate for conservation (50 CFR 424.12(e)). At this time we lack 
sufficient information to determine that the currently occupied habitat 
is inadequate and that additional unoccupied habitat is essential for 
conservation of the species. We will consider any new information 
indicating that the current occupied habitat is a limiting factor for 
recovery as more research is conducted.
    No matter where the line is drawn to delineate a specific area, 
there will be activities occurring outside of the delineated area that 
may affect the features within the area. When prey items are a 
biological feature that moves freely in and out of the geographical 
area occupied by the species, it creates a situation in which there is 
a ''biological feature'' outside the occupied specific areas. This fact 
does not make line-drawing arbitrary because the statute requires us to 
designate as critical habitat specific areas occupied by the species 
that contain those physical and biological features essential to 
conservation and may require special management considerations or 
protection, or unoccupied areas essential to the conservation of the 
species. Here we have chosen a reasonable line on a map (as our 
regulations require) to clearly identify ``specific areas within the 
geographical area occupied by the species.'' Moreover, section 7's 
requirement that Federal agencies ensure their actions are not likely 
to adversely modify critical habitat apply equally to actions occurring 
outside and within designated critical habitat. We have identified a 
depth contour of 20 feet (6.1 m) based on extreme high water for the 
final critical habitat. We believe this is a reasonable way to 
delineate a ``specific area within the geographical area occupied by 
the species.''
    Comment 5: Many commenters requested that we include the offshore 
waters of Washington, Oregon, and California in the critical habitat 
designation. One commenter recommended we begin our designation at a 
reasonable depth and extend it to five miles (8.0 km) offshore to 
adequately protect waters used by Southern Residents. Many comments 
specifically requested that the Olympic Coast National Marine Sanctuary 
be included in the critical habitat designation. Most felt there was 
sufficient evidence to include offshore waters in the critical habitat 
designation at this time. Others encouraged us to conduct additional 
research on the winter coastal habitat of Southern Residents to gather 
information to support expansion of the critical habitat designation in 
the future.
    Response: In the proposed rule, we identified the data gaps 
regarding distribution of Southern Residents in coastal and offshore 
waters and uncertainty regarding the important habitat features of 
these areas. At this time, we do not feel there is sufficient data to 
identify the specific areas in offshore waters in which the essential 
habitat features are found. This concern applies equally to the Olympic 
Coast National Marine Sanctuary and to other offshore areas. There is 
an active research program underway to gather information and fill in 
these data gaps, and we will consider any new information on coastal 
and offshore habitats that becomes available.

Special Management Considerations

    Comment 6: We received a number of comments on the threats to the 
Southern Resident killer whales and suggestions for management actions 
that could be taken. These included: concerns regarding fisheries 
management to ensure sufficient prey for the whales; high pollution 
levels in Puget Sound and the sewage dumping practices of particular 
areas; stress from whale watching and other vessels; and potential 
effects from research practices and oil spills.
    Response: For each of the specific areas proposed for critical 
habitat designation, we identified the PCEs and their special 
management considerations, which generally are the same concerns as 
those expressed by commenters. We will also consider the comments 
pertaining to specific threats to the whales and their habitat and 
potential management actions in developing a recovery plan for Southern 
Resident killer whales.

Activities That May Be Affected

    Comment 7: One commenter requested at least a partial list of the 
type of projects that would likely require ESA section 7 consultation 
to assist agencies and project sponsors.
    Another commenter suggested that Federal hydropower projects should

[[Page 69058]]

also be considered because of their potential to affect abundance of 
killer whale prey. Several commenters encouraged us to explore a 
Federal nexus under section 7 that would allow us to address vessels in 
Puget Sound.
    Response: We provided a list of activities that may be affected by 
this designation, including, but not limited to, fishery management 
practices, vessel traffic, dredging and disposal, sub-marine cable/
pipline installation and repair, oil and gas exploration, pollutant 
discharge, and oil spill prevention and response. If hydropower actions 
can be shown to significantly reduce the abundance of salmon available 
to the whales in designated critical habitat, they could adversely 
modify that habitat. As noted in response to Comment 8 below, most 
hydropower operations in the range of salmon and steelhead are already 
subject to modifications to protect listed salmon and steelhead. We 
will work with the Coast Guard and other agencies that oversee vessel 
activities to explore actions regarding vessels that may require 
section 7 consultation under the ESA.

Application of ESA section 4(b)(2)

Economic Impacts

    Comment 8: We received several comments requesting that we include 
additional quantified estimates of economic impacts of designating 
critical habitat for Southern Resident killer whales in the economics 
report. One commenter objected to the focus of the economic analysis on 
potential impacts to fisheries. One commenter suggested Federal 
hydropower projects be considered under section 7 of the ESA and 
economic impacts of those consultations be considered in the economic 
analysis. Other commenters requested inclusion of costs associated with 
water quality and stormwater management and noise-producing activities, 
such as construction. Another suggested that information about economic 
costs associated with climate change be included.
    Response: The range of economic costs estimated for critical 
habitat designation was related to possible reductions in harvest of 
prey species. While the economic analysis may appear to focus on 
potential impacts to fisheries, the economic report addresses other 
impacts such as those to water quality which could not be quantified. 
The inability to quantify these costs does not reduce their relative 
importance. In the ESA section 4(b)(2) report, we acknowledge that 
there are also additional costs associated with prey in addition to 
harvest, though we could not attribute these costs to the designation 
of critical habitat for Southern Resident killer whales. In designating 
critical habitat for the Puget Sound Chinook ESU, there were over 
$70,000,000 of economic impacts identified for the designated areas. 
Examples of other programs affecting salmon habitat include Shared 
Strategy for salmon recovery and Puget Sound Action Team and Puget 
Sound Partnership efforts to improve conditions in Puget Sound, which 
may cost hundreds of millions of dollars.
    In the case of hydroelectric projects, particularly the Federal 
projects the commenter identified, many hydroelectric project 
modifications to protect salmon and steelhead are already required to 
protect ESA-listed salmon or steelhead. Along the entire West Coast, 
nearly all salmon-bearing streams are home to listed salmon and 
steelhead (only coastal streams in Western Washington contain no listed 
salmon or steelhead). To the extent there is a Federal nexus on 
hydropower operations affecting these listed salmon and steelhead, the 
Federal agency involved must ensure its actions aren't likely to 
jeopardize the listed salmonids or adversely modify their critical 
habitat. As a result, hydropower operations that might affect the 
abundance of killer whale prey (including those in the Columbia River 
basin) are already modified to protect salmon and their critical 
habitat. It would be inappropriate to attribute the cost of 
modifications to killer whale critical habitat designation when they 
are already required to protect salmon and steelhead; however, if 
additional project modifications are required to prevent reductions of 
prey abundance for Southern Resident killer whales in designated 
critical habitat, these impacts would be attributable to this 
designation.
    Regarding water quality, we lack sufficient information at this 
time to determine which contaminants are likely to be the focus of 
future ESA section 7 consultations and what threshold levels are 
appropriate to protect Southern Residents. Until we have better 
information about the number and type of section 7 consultations on 
water quality management, and the extent of changes that may be 
required as a result of those consultations, it would be speculative to 
try to estimate associated costs. We do not have a consultation history 
for killer whales that would provide information on changes that might 
be required in water quality management to protect killer whale habitat 
from adverse modification. Nor do we have information that would allow 
us to estimate with any confidence what those changes might be. One 
commenter suggested that we rely on the consultation history of salmon 
to estimate economic costs for water quality management. However, there 
are different contaminants of concern for salmon, and, as noted above, 
costs associated with salmon consultations would not be appropriate to 
count twice. Impacts from Southern Resident critical habitat 
designation will likely come in areas different than those that stem 
from salmon protection and recovery.
    There are likely to be significant costs associated with 
construction activities as a result of our listing of Southern Resident 
killer whales because these sound-producing activities have a direct 
effect on the whales, as described in our response to Comment 1. We 
have already conducted several ESA section 7 consultations on 
construction activities, and measures were included in the action to 
avoid direct impacts to the whales. Because we consider such sound to 
be an impact on the whales rather than on the whales' habitat, however, 
we did not include the costs associated with these measures in our 
analysis of the economic impacts of designation.
    At this time it would be too speculative to try to determine what 
management changes may be required for salmon and steelhead in response 
to climate change.
    Comment 9: One commenter questioned the information in the 
economics report regarding stormwater outfalls, including the number of 
outfalls listed, and suggested we consider the contaminant levels for 
individual outfalls and sources rather than the number of outfalls or 
the agency responsible for managing the outfalls.
    Response: We recognize that the quantity and quality of stormwater, 
not the number of outfalls, will determine what changes would need to 
be made, if any, as a result of critical habitat designation. We also 
recognize that outfalls without any Federal nexus will not be subject 
to an ESA section 7 consultation. We included the number of outfalls 
that might be subject to consultation in the draft economics report, 
where such numbers were available, to give the decision maker some 
context for considering the potential impact of critical habitat 
designation, as required by ESA section 4(b)(2). In light of this 
comment, we have removed the table from the

[[Page 69059]]

economics report showing the number of outfalls.
    Comment 10: Commenters suggested that additional information on the 
economic benefits of recovered Southern Resident and salmon populations 
be included in the report.
    Response: While there may be studies that may provide some 
information relevant to estimating the benefits of recovered Southern 
Resident killer whale and salmon populations, there is insufficient 
information to estimate the incremental benefits (in addition to the 
current salmon recovery efforts) of critical habitat designation for 
Southern Residents on the status of Southern Resident and Pacific 
Northwest salmon populations.
    Comment 11: One commenter objected to the inclusion of polycyclic 
aromatic hydrocarbons (PAH) as a contaminant of potential concern to 
Southern Resident killer whales in the economic report. The commenter 
acknowledged that PAHs are mentioned in the conservation plan, but that 
since they were not specifically addressed in the listing or biological 
report, like other contaminants such as polychlorinated biphenyls (PCB) 
and dichloro-diphenyl-trichloroethane ( DDT), they should therefore not 
be included in the economic analysis.
    Response: While we concur with the commenter that PCBs and other 
contaminants pose a greater risk to Southern Residents than PAHs, PAHs 
are still a concern and we have modified the biological report to 
ensure it clearly reflects this concern. Exposure to PAHs can be 
chronic or acute in the case of an oil spill. Although there are few 
studies of PAH levels and effects in wild marine mammals and no studies 
linking PAHs to the decline in the Southern Residents, there are 
concerns regarding carcinogenic effects of high levels of PAHs in some 
marine mammals (e.g., beluga whales). PAHs were not specifically 
identified as a primary concern in the listing of Southern Residents, 
but their inclusion in the conservation plan and the economic report 
indicates that they may be a concern for Southern Residents. No 
specific costs were associated with inclusion of PAHs in the economic 
report.

National Security Impacts

    Comment 12: Many commenters disagreed with the decision to exclude 
18 military sites on the basis of national security. Commenters 
requested that we review and offer explanations for the exclusion of 
each facility on a case-by-case basis, balancing national security 
interests with those of Southern Residents. Reducing the size of 
exemptions, limiting the degree of the exemptions, or entering into an 
agreement with the Navy to address their activities were several of the 
recommendations of commenters. Many of the commenters expressed concern 
about non-military activities that occur in the exempt areas and 
whether they would be subject to critical habitat regulations. These 
commenters hoped we could find a way to protect Southern Residents from 
harmful, non-military activities in these zones. An additional concern 
for these commenters was the impact of military sonar. We received 
recommendations that the military increase its efforts to protect 
killer whales when conducting tests, using passive sonar to locate 
whales and avoid sonar usage when whales are in potentially harmful 
proximity to the military vessel.
    Response: In an appendix to the ESA Section 4(b)(2) report, we 
provided detailed information on each of the military sites and 
summarized the national security concerns raised by the Department of 
Defense (DOD). We concluded that the national security impacts 
outweighed the benefits to the species. There is no mechanism in the 
ESA to exclude just the military and not other Federal agencies from 
the impacts of critical habitat designation. The exclusion of the 
military sites from critical habitat designation, however, does not 
mean that Federal actions in those areas are exempt from all 
consultation obligations under section 7 of the ESA. Federal agencies 
must ensure their actions do not jeopardize the continued existence of 
listed species - a requirement that applies regardless of whether 
specific areas are designated as critical habitat. We will continue to 
be concerned about activities that harm Southern Resident killer whales 
and their habitat, regardless of whether that habitat is designated. We 
expect that where critical habitat is designated, it will more 
precisely focus our analysis on how the action will alter the habitat 
and how that will affect the ability of the habitat to support species' 
conservation.
    Regarding sonar use, the Navy has operating procedures in place to 
reduce the risk to marine mammals, and these are included in the 
Proposed Conservation Plan for Southern Resident Killer Whales 
(available at www.nwr.noaa.gov). As stated above, the military 
exclusions from critical habitat designation do not affect the Navy's 
obligations under section 7 of the ESA to consult on Federal actions 
that may affect Southern Resident killer whales regardless of whether 
they occur in designated critical habitat.
    Comment 13: We received several requests for additional exclusions 
based on impacts to national security. Commenters requested exclusions 
for refineries and ports in Puget Sound. Refinery operators requested 
exclusions because of their role in producing the petroleum products 
used by the U.S. military. These commenters felt that being subject to 
critical habitat consultations would limit the ability of refineries to 
efficiently provide oil to the military in a situation of national 
security. They also argued critical habitat designations would affect 
security, maintenance, operations and emergency preparedness at 
refineries. Those requesting national security exemptions for the ports 
located in Puget Sound argued that ports play an essential role in 
protecting the United States from terrorist threats because they are a 
primary entry and exit point. The commenters also argued there would be 
economic impacts to designating critical habitat in ports, making the 
ports less competitive. The commenters felt that, given that Southern 
Residents do not often use port waters, and many of the areas are 
already designated as critical habitat for Chinook salmon, an 
additional critical habitat designation would impact ports and not 
offer benefits to killer whales.
    Response: We concluded that the national security benefits of 
exclusion outweighed the conservation benefits of designation for 18 
military sites. The Navy and Army provided information on the direct 
and potentially substantial impacts to national security including 
preventing, restricting, or delaying training or testing exercises or 
access to sites; restricting, or delaying activities associated with 
vessel/facility maintenance and ordnance loading; and delaying response 
time for ship deployments and overall operations. The DOD did not 
identify any concerns regarding impacts to national security beyond 
those at their sites. National security is the primary mission for the 
military, and we considered the high priority placed on national 
security when weighing the benefits of exclusion against conservation 
benefits. Refineries and ports, however, are commercial operations, and 
the national security concerns associated with these sites are a part 
of their overall activities. We consider that designating critical 
habitat in these areas will provide some conservation benefit through 
ESA section 7 consultations on refinery and port actions that may 
impact habitat by affecting prey availability, contaminant levels, or 
passage. There was

[[Page 69060]]

insufficient information to demonstrate that any national security 
benefits outweigh the conservation benefits.

National Environmental Protection Act of 1969 (NEPA)

    Comment 14: We received one comment arguing that the agency must 
comply with the NEPA to inform the public and help ensure that critical 
habitat designations do not result in unintended environmental 
consequences.
    Response: We believe that in Douglas County v. Babbitt, 48 F.3d 
1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996), the Ninth 
Circuit Court of Appeals correctly interpreted the relationship between 
NEPA and critical habitat designation under the ESA. The Court rejected 
the suggestion, identical to that raised by commenters, that 
irreconcilable statutory conflict or duplicative statutory procedures 
are the only exceptions to application of NEPA to Federal actions. The 
Court held that the legislative history of the ESA demonstrated that 
Congress intended to displace NEPA procedures with carefully crafted 
procedures specific to critical habitat designation. Further, the 
Douglas County Court held that the critical habitat mandate of the ESA 
conflicts with NEPA in that, although the Secretary may exclude areas 
from critical habitat designation if such exclusion would be more 
beneficial than harmful, the Secretary has no discretion to exclude 
areas from designation if such exclusion would result in extinction. 
The Court noted that the ESA also conflicts with NEPA's demand for 
impact analysis, in that the ESA dictates that the Secretary ``shall'' 
designate critical habitat for listed species based upon an evaluation 
of economic and other ``relevant'' impacts, which the Court interpreted 
as narrower than NEPA's directive. Finally, the Court, based upon a 
review of precedent from several circuits including the Fifth Circuit, 
held that an environmental impact statement is not required for actions 
that do not change the physical environment.

Delay Designation Pending Resolution of Legal Issues

    Comment 15: One commenter requested that we delay designation of 
critical habitat until clarification of outstanding legal issues, 
including litigation over the listing of the Southern Resident DPS and 
the definition of ''adverse modification'' of critical habitat, are 
resolved.
    Response: Litigation is currently pending that challenges our 
listing of Southern Resident killer whales as endangered under the ESA 
[Washington State Farm Bureau and Building Industry Association of 
Washington v. NMFS]. Pending a decision on that challenge, the whales 
are listed, and the ESA requires that we designate critical habitat 
within one year of listing. Past court decisions on the agency's 
regulatory definition of adverse modification have no effect on the 
statutory requirement to designate critical habitat.

Coordination with Canada

    Comment 16: We received a number of comments regarding the use of 
Canadian waters by Southern Residents. These commenters felt we should 
coordinate with Canada on our efforts for protecting Southern Residents 
and their habitat.
    Response: We have some sighting data for Southern Residents in 
Canadian waters, and while our regulations limit us to designating 
critical habitat in areas under U.S. jurisdiction, we will continue to 
coordinate with Canada on both critical habitat designated in U. S. 
waters and recovery planning on both sides of the border.

Critical Habitat Identification and Designation

    Section 3 of the ESA defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed * * *, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed * * *, upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the 
terms ``conserve,'' ``conserving,'' and ``conservation'' to mean: ``to 
use, and the use of, all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this chapter are no longer 
necessary.''
    Section 4 of the ESA requires that, before designating critical 
habitat, we consider economic impacts, impacts on national security, 
and other relevant impacts of specifying any particular area as 
critical habitat. The Secretary may exclude any area from critical 
habitat if he determines that the benefits of exclusion outweigh the 
benefits of designation, unless excluding an area from critical habitat 
will result in the extinction of the species concerned. Once critical 
habitat is designated, section 7(a)(2) of the ESA requires that each 
Federal agency, in consultation with us and with our assistance, ensure 
that any action it authorizes, funds, or carries out is not likely to 
result in the destruction or adverse modification of critical habitat.

Physical or Biological Features Essential to Conservation (Primary 
Constituent Elements)

    Joint NMFS-FWS regulations for listing endangered and threatened 
species and designating critical habitat at 50 CFR 424.12(b) state that 
the agencies ``shall consider those physical and biological features 
that are essential to the conservation of a given species and that may 
require special management considerations or protection (hereafter also 
referred to as ``Essential Features' or ``Primary Constituent 
Elements'/PCEs').'' Pursuant to the regulations, such requirements 
include, but are not limited to, the following: (1) Space for 
individual and population growth, and for normal behavior; (2) food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for breeding, 
reproduction, rearing of offspring, germination, or seed dispersal; and 
generally, (5) habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species. These regulations state that we shall focus 
on essential features within the specific areas considered for 
designation. These features ''may include, but are not limited to, the 
following: spawning sites, feeding sites, seasonal wetland or dryland, 
water quality or quantity, geological formation, vegetation type, tide, 
and specific soil types.''
    Fish are the major dietary component of resident killer whales in 
the northeastern Pacific, with 22 species of fish and 1 species of 
squid (Gonatopsis borealis) known to be eaten (Scheffer and Slipp, 
1948; Ford et al., 1998; 2000; Ford and Ellis, 2005; Saulitis et al., 
2000). Observations from this region indicate that salmon are clearly 
preferred as prey (Ford et al., 1998; Ford and Ellis, 2005) and are 
likely consumed in large amounts, as indicated by the estimates of 
total salmon consumed by the Southern Resident killer whale DPS. 
Sufficient prey abundance is necessary to support individual growth to 
reach sexual maturity and reproduction, including lactation and 
successful rearing of calves.
    In addition to a sufficient biomass of prey species, the prey must 
not have

[[Page 69061]]

amounts of contaminants that exceed levels that can cause mortality or 
reproductive failure in Southern Residents. Because of their long life 
span, position at the top of the food chain, and their blubber stores, 
killer whales accumulate high concentrations of contaminants. 
Organochlorines, such as PCBs and DDT, and many other chemical 
compounds including polychlorinated napthalenes, brominated flame 
retardants, PAHs, dioxins, furans, and heavy metals, are a concern 
because of their ability to induce immune suppression, reproductive 
impairment, or other physiological damage, as observed in several 
species of marine mammals (Albers and Loughlin, 2003; Boland et al., 
1998; Bergman et al., 1992; De Guise et al., 2003; Jepson et al., 1999; 
Reijinders, 2003; Ross, 2002).
    To move between important habitat areas, find prey, and fulfill 
other life history requirements, the Southern Resident killer whales 
require open waterways that are free from obstruction. In-water 
structures that block passage, for example, could affect Southern 
Resident killer whale movement.
    Killer whale habitat use is dynamic, and specific breeding, 
calving, or resting areas have not been documented. Births occur 
largely from October to March, but may take place in any month (Olesiuk 
et al., 1990), and, therefore, potentially in any part of the whales' 
range. Southern Residents are highly mobile and can travel up to 100 
miles (160 km) in a 24-hour period (Baird, 2000), allowing rapid 
movements between areas. These movements likely coincide with prey 
concentrations. Individual knowledge of productive feeding areas and 
other special habitats is probably important in the selection of 
locations visited and is likely a learned tradition passed from one 
generation to the next (Ford et al., 1998).
    Based on this natural history of the Southern Resident killer 
whales and their habitat needs, the physical or biological features of 
Southern Resident killer whale habitat are:
    (1) Water quality to support growth and development;
    (2) Prey species of sufficient quantity, quality and availability 
to support individual growth, reproduction and development, as well as 
overall population growth; and
    (3) Passage conditions to allow for migration, resting, and 
foraging.

Geographical Area Occupied by the Species

    Photo-identification studies, tracking by boats, and opportunistic 
sightings have provided considerable information on the ranges and 
movements of Southern Resident killer whales since the early 1970s. 
Ranges are best known from late spring to early autumn (May-September), 
when survey effort is greatest. During this period, all three Southern 
Resident pods- J, K and L- are regularly present in the Georgia Basin 
(defined as the Georgia Strait, San Juan Islands, and Strait of Juan de 
Fuca) (Heimlich- Boran, 1988; Felleman et al., 1991; Olson, 1998; 
Osborne, 1999).
    While in inland waters during summer months, all of the pods 
concentrate their activity in Haro Strait, Boundary Pass, the southern 
Gulf Islands, the northeastern end of the Strait of Juan de Fuca, and 
several localities in southern Georgia Strait (Heimlich-Boran, 1988; 
Felleman et al., 1991; Olson, 1998; Ford et al., 2000). Pods commonly 
occur and are observed foraging in areas where salmon frequent, 
especially during the times of year salmon are migrating to their natal 
rivers (Heimlich-Boran, 1986, 1988; Nichol and Shackleton, 1996). 
Notable concentrations include Haro Strait and Boundary Passage, the 
southern tip of Vancouver Island, Swanson Channel off North Pender 
Island, and the mouth of the Fraser River delta, which is visited by 
all three pods in September and October (Felleman et al., 1991; Ford et 
al., 2000). These sites are major corridors for migrating salmon.
    Individual pods are generally similar in their preferred areas of 
use (Olson, 1998), although some seasonal and temporal differences 
exist in areas used. All three pods typically arrive in May or June and 
spend most of their time in inland waters until departing in October or 
November. However, K and L pods make frequent trips lasting a few days 
to the outer coasts of Washington and southern Vancouver Island during 
this time period (Ford et al., 2000). During early autumn, Southern 
Resident pods, especially J pod, routinely expand their movements into 
Puget Sound, probably to take advantage of chum and Chinook salmon runs 
(Osborne, 1999). Additional recent studies have identified finer scale 
pod differences in seasonal movement patterns and use of core areas 
(Hauser, 2006).
    There are no confirmed sightings of Southern Resident killer whales 
inside Hood Canal in the 1990-2003 sighting database. On one occasion 
in 1995, acoustic recordings from Dabob Bay were identified as J pod 
vocalizations (Unger, 1997). Although additional historical sightings 
and recordings from the 1970s and earlier were provided during the 
comment period, we do not consider this sufficient evidence of presence 
to find Hood Canal ''within the geographical area occupied by the 
species at the time of listing.'' (Transient killer whales, in 
contrast, have been observed in Hood Canal on multiple occasions and 
have remained in Hood Canal for extended periods in the last several 
years.)
    In the critical habitat proposed rule we did not consider extremely 
shallow waters of Puget Sound (less than 20 feet (6.1 m) deep relative 
to the extreme high water line) to be within the geographical area 
occupied by the species and requested information during the public 
comment period. The public and a scientific researcher provided 
accounts and photographs of Southern Resident killer whales using some 
shallow areas. The information received is not sufficient to consider 
all shallow areas as occupied. The final critical habitat designation 
is consistent with the proposed rule and does not include waters 
shallower than 20 feet (6.1 m) based on extreme high tide. Tidal 
fluctuations vary at locations throughout the critical habitat areas, 
but generally the shallow areas not included in the critical habitat 
designation are very shallow (5-10 feet (1.5-3 m)) in some tidal 
conditions and can even be exposed at very low tides. During some tidal 
conditions these areas are not accessible by the whales, and we do not 
have data indicating that these areas are frequently used by whales. We 
used this same shoreline data for the final rule, which is readily 
available from the Washington Department of Natural Resources, to 
display and calculate the critical habitat areas as we did in the 
proposed rule.
    During the late fall, winter, and early spring, the ranges and 
movements of the Southern Residents are less well known. J pod 
continues to occur intermittently in the Georgia Basin and Puget Sound 
part of this time, but its location during apparent absences is 
uncertain (Osborne, 1999). One sighting of this pod was made off Cape 
Flattery, Washington, in March 2004 (Krahn et al., 2004). Prior to 
1999, K and L pods followed a general pattern in which they spent 
progressively smaller amounts of time in inland waters during October 
and November and departed them entirely by December of most years 
(Osborne, 1999). Sightings of both groups passing through the Strait of 
Juan de Fuca in late fall suggested that activity shifted to the outer 
coasts of Vancouver Island and Washington (Krahn et al., 2002), 
although it is unclear if the whales spend a substantial portion of 
their time in this area or simply transit to other locations.

[[Page 69062]]

    While there are considerable data on the use of inland waters of 
Washington, there is very little information on the movements of 
Southern Resident killer whales off the coast. Areas of activity of all 
pods are virtually unknown during their absences from inland waters. In 
the last 30 years of study, there are only 28 confirmed sightings in 
outside waters (Krahn et al., 2004; NWFSC unpubl. data). The majority 
of these sightings were opportunistic, with most occurring within 10 
miles (16.1 km) of shore, and we do not know how far from shore the 
Southern Residents range. Several new sightings occurred during the 
last five years, when effort was increased with dedicated ship surveys 
and expanded volunteer coastal sighting networks. Our knowledge of the 
southern and northern boundaries of the range has expanded with these 
new sightings from California and the Queen Charlotte Islands in recent 
years. At this time there are few data on how the whales are using 
offshore areas; however, some of the sightings included observations of 
feeding.
    There is an active research effort underway to identify coastal and 
offshore distribution of Southern Residents. We have increased outreach 
efforts to gather sighting information from coastal communities, vessel 
operators, and pilots along the coasts of Oregon, Washington, and 
British Columbia. In addition, researchers are conducting dedicated 
ship surveys to locate the whales and observe their activities outside 
of Puget Sound. The research program is a long-term effort, but we hope 
to greatly increase the number of coastal observations in the next five 
years. As new information is collected on the coastal and offshore 
distribution and habitat use, we hope to fill in the data gaps about 
the important habitat features of these coastal and offshore areas.
    NMFS regulations at 50 CFR 424.12(h) state: ``Critical habitat 
shall not be designated within foreign countries or in other areas 
outside of United States jurisdiction.'' Although the Southern 
Residents' range includes inland waters of Canada, we are not proposing 
these areas for designation.

Specific Areas within the Geographical Area Occupied by the Species

    We reviewed the available information on Southern Resident 
distribution, habitat use, and habitat needs in a biological report to 
assist in identifying critical habitat (NMFS, 2006a). Within the 
geographical area occupied by the Southern Resident killer whales we 
have identified three specific areas that contain essential habitat 
features. We have divided the inside waters of Washington State into 
specific areas based on the habitat features and the use patterns of 
the Southern Resident killer whales.
    We analyzed Southern Resident killer whale sightings data from The 
Whale Museum (Osborne, 2005; The Whale Museum Orca Master, 1990-2003) 
to assist in identifying specific areas based on habitat use patterns 
by the whales. The Whale Museum data are predominantly opportunistic 
sightings from a variety of sources, including public reports, 
commercial whale watching industry pager system, Soundwatch, Lime Kiln 
State Park land-based observations, and compilations of independent 
researcher reports. The whales are identified as belonging to a 
particular pod when possible, and sightings of transient or offshore 
whales are not included in the database. The data set does not account 
for level of effort by season or location, and, therefore, the sampling 
and data are biased (Osborne, 2005). The 1990-2003 Whale Museum data 
set is, however, the most comprehensive long-term data available to 
evaluate broad-scale whale distribution in inland waters at this time 
(with a total number of sighting records of 22,509). In order to 
evaluate frequency of use, our analysis of the sightings was limited to 
one unique location sighting, per location, per day to reduce the bias 
introduced by multiple sightings of the same whales in the same 
location on the same day (total number of unique sightings per day is 
11,836). For the majority of the killer whale sightings the location 
reported was not an exact point location (Lat./Long.), and all 
locations were subsequently assigned to a center point in a quadrant 
system (Osborne, 2005). Almost half of the data is from the Whale Watch 
pager system created by the commercial whale watch industry and 
available to subscribers. A validation of recent pager data revealed 
greater than 90 percent accuracy in locating whales (Hauser et al., 
2006).
    From the sightings and other data, we identified three ``specific 
areas,'' within the geographical area occupied by the species, that 
contain PCEs. We considered presence and movements of the whales, 
behavioral observations and studies, and other information to verify 
that one or more of the physical or biological features, or PCEs, can 
be found in these three areas. In some cases where direct data on PCEs 
were not available, we relied on distribution patterns of the whales to 
infer presence of PCEs.
    Area 1. Core Summer Area - Bordered to the North and West by the 
U.S./Canadian border, Area 1 includes the waters surrounding the San 
Juan Islands, the U.S. portion of the Southern Strait of Georgia, and 
areas directly offshore of Skagit and Whatcom counties. Prey species, 
one of the PCEs, are present in Area 1. Runs of salmon passing through 
Area 1 include Chinook, chum, coho, pink, and sockeye salmon, which 
have all been identified as prey for Southern Residents (Ford et al., 
1998; Ford and Ellis, 2005; NWFSC, unpubl. data). The Strait of Juan de 
Fuca, Haro Strait, and Georgia Strait are relatively narrow channels 
and concentrate salmon returning from the Pacific Ocean to spawn in 
U.S. and Canadian rivers. In particular, Area 1 lies near the mouth of 
the Fraser River, which has the largest salmon runs in the Georgia 
Basin/Puget Sound region (Northcote and Atagi, 1997).
    Occurrence of Southern Residents in Area 1 coincides with 
concentrations of salmon. So