Endangered and Threatened Species: Designation of Critical Habitat for Cook Inlet Beluga Whale, 63080-63095 [E9-28760]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 230 (Wednesday, December 2, 2009)]
[Proposed Rules]
[Pages 63080-63095]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28760]


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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.

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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 https://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 https://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: https://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?

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     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 https://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 
https:// 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