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

Download as PDF 63080 Proposed Rules Federal Register Vol. 74, No. 230 Wednesday, December 2, 2009 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2007–1130; FRL–9087–8] Approval and Promulgation of Air Quality Implementation Plans; Minnesota erowe on DSK5CLS3C1PROD with PROPOSALS-1 AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a site-specific revision to the Minnesota sulfur dioxide (SO2) State Implementation Plan (SIP) for the Rochester Public Utilities Silver Lake Plant (RPU–SLP), located in Rochester, Minnesota. In its October 16, 2007, submittal, the Minnesota Pollution Control Agency (MPCA) requested that EPA approve certain conditions contained in RPU–SLP’s revised Federally enforceable joint Title I/Title V document into the Minnesota SO2 SIP. The request is approvable because it satisfies the requirements of the Clean Air Act. DATES: Comments must be received on or before January 4, 2010. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05– OAR–2007–1130, by one of the following methods: • http://www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: mooney.john@epa.gov. • Fax: (312) 692–2551. • Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR 18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • Hand Delivery: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR 18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this Federal Register for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Christos Panos, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–8328, panos.christos@epa.gov. In the Rules section of this Federal Register, EPA is approving the state’s SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register. SUPPLEMENTARY INFORMATION: Dated: November 17, 2009. Walter W. Kovalick Jr., Acting Regional Administrator, Region 5. [FR Doc. E9–28677 Filed 12–1–09; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 090224232–91321–03] RIN 0648–AX50 Endangered and Threatened Species: Designation of Critical Habitat for Cook Inlet Beluga Whale AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comment. SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for the Cook Inlet beluga whale (Delphinapterus leucas) distinct population segment under the Endangered Species Act (ESA). Two areas are proposed, comprising 7,809 square kilometers (3,016 square miles) of marine habitat. We solicit comments from the public on all aspects of the proposal. DATES: Comments and information regarding this proposed rule must be received by close of business on February 1, 2010. Requests for public hearings must be made in writing and received by January 19, 2010. ADDRESSES: Send comments to Kaja Brix, Assistant Regional Administrator, Protected Resources, Alaska Region, NMFS, ATTN: Ellen Sebastian. You may submit comments, identified by ‘‘RIN 0648–AX50’’ by any one of the following methods: • Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov. • Mail: P.O. Box 21668, Juneau, AK, 99802–1668. • Fax: 907–586–7557 • Hand deliver to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK. All comments received are a part of the public record and generally will be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/ A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, WordPerfect, of Adobe portable document file (PDF) format only. The proposed rule, maps, status reviews, and other materials relating to Cook Inlet beluga whales and this proposal can be found on our Web site at: http://www.fakr.noaa.gov/. FOR FURTHER INFORMATION CONTACT: Kaja Brix, NMFS, Alaska Region, (907) 586– 7824; or Marta Nammack, NMFS, (301) 713–1401. SUPPLEMENTARY INFORMATION: erowe on DSK5CLS3C1PROD with PROPOSALS-1 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 63081 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? E:\FR\FM\02DEP1.SGM 02DEP1 63082 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules • 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. erowe on DSK5CLS3C1PROD with PROPOSALS-1 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. VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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 midJuly (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 (AprilOctober) (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 energyrich 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 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 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 E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS-1 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° 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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° 08.5′ N., 151° PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 63083 04.4′ W.) to Point Possession (61° 02.1′ N., 150° 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, Twentymile 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. E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 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° 25.0’ N., and includes nearshore areas south of 60° 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, E:\FR\FM\02DEP1.SGM 02DEP1 EP02DE09.038</GPH> erowe on DSK5CLS3C1PROD with PROPOSALS-1 63084 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS-1 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, VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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 lifehistory 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 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 63085 physical aspects of the site which may act to concentrate prey or otherwise facilitate feeding strategy. In upper Cook Inlet, beluga whales concentrate offshore from several important salmon streams and appear to use a feeding strategy which takes advantage of the bathymetry in the area. The channels formed by the river mouths and the shallow waters act as a funnel for salmon as they move past waiting belugas. Dense concentrations of prey may be essential to beluga whale foraging. Hazard (1988) hypothesized that beluga whales were more successful feeding in rivers where prey were concentrated than in bays where prey were dispersed. Fried et al. (1979) noted that beluga whales in Bristol Bay fed at the mouth of the Snake River, where salmon runs are smaller than in other rivers in Bristol Bay. However, the mouth of the Snake River is shallower, and hence may concentrate prey. Research on beluga whales in Bristol Bay suggests these whales preferred certain streams for feeding based on the configuration of the stream channel (Frost et al., 1983). This study theorized beluga whales’ feeding efficiencies improve in relatively shallow channels where fish are confined or concentrated. Bathymetry and fish density may be more important than sheer numbers of fish in beluga feeding success. Although beluga whales do not always feed at the streams with the highest runs of fish, proximity to medium to high flow river systems is also an important descriptor in assigning importance to feeding habitats. Research has found beluga distribution in Cook Inlet is significantly greater near mudflats and medium and high flow accumulation rivers. (These waters were categorized in Goetz et al. (2007) using a digital elevation model, similar to drainage basins. A complete list of these waters may be found on the NMFS website http://www.fakr.noaa.gov/.) Beluga whales are seldom observed near small flow tributaries. Cook Inlet beluga whales are preyed upon by killer whales, their only known natural predator. We have received reports of killer whales throughout Cook Inlet, and have responded to several instances of predation within Turnagain Arm, near Anchorage. Given the small population size of the Cook Inlet beluga whales, predation may have a significant effect on beluga recovery. In addition to directly reducing the beluga population, the presence of killer whales in Cook Inlet may also increase stranding events. We consider killer whale predation to be a potentially significant threat to the conservation and recovery of these E:\FR\FM\02DEP1.SGM 02DEP1 63086 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules 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. 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\02DEP1.SGM 02DEP1 EP02DE09.039</GPH> erowe on DSK5CLS3C1PROD with PROPOSALS-1 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 erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules 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 nonphysical 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 63087 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° N., 150.37°. W) and the mouth of Threemile Creek (61.0855° N., 151.0440° W.), including waters of the Susitna River south of 61.33.33 N latitude, the Little Susitna River south of 61.30° N. latitude, and the Chikaloon River north of 60.8833° N. latitude. (2) Area 2. All marine waters of Cook Inlet south of a line connecting Point Possession (61.04° N., 150.37° W.) and the mouth of Threemile Creek (61.0855° N., 151.0440° W.) and north of 60.25° N latitude, including waters within 2 nautical miles (3.2 km) of MHHW along the western shoreline of Cook Inlet between 60.25° N. latitude and the mouth of the Douglas River (59.04° N., 153.45° 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 E:\FR\FM\02DEP1.SGM 02DEP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 63088 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 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 μPa for impulsive sounds (e.g., pile driving) and 120 dB re: 1 μPa 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 E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules 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. erowe on DSK5CLS3C1PROD with PROPOSALS-1 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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), largescale 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). PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 63089 We next considered the range of modifications we might recommend during consultation on these activities to avoid the destruction or adverse modification of Cook Inlet beluga whale critical habitat. A draft economic report describes in detail the actions that may be affected, the potential range of modifications we might recommend for those actions, and the estimate of economic impacts that might result from such changes (Entrix, 2009). The report describes the likelihood of an ESA section 7 consultation resulting in changes to each type of action. This report is available on the NMFS Alaska Region Web site at http:// www.akr.noaa.gov/. We are soliciting comments on our analysis of impacts and their potential benefits and costs. General Analytic Approach To evaluate potential impacts of designation, we first identified activities or actions that may affect Cook Inlet beluga whale critical habitat and, therefore, be subject to ESA section 7 consultation. We then identified and assessed the costs of the critical habitat designation to each of these, as well as any substantial benefits to recreation, subsistence uses, education, and the other sectors identified above. When there were sufficient empirical data and supporting information, we used an incremental approach in assessing the economic and other impacts of the critical habitat designation. When there was insufficient information with which to objectively disentangle impacts between those occurring from the listing and those occurring from the critical habitat designation, we identified the impacts as co-extensive. In other words, in those situations, we identified all potential costs and benefits resulting from section 7 consultation, regardless of whether they are wholly and uniquely attributable to ‘‘adverse modification’’ or whether they result from the ‘‘jeopardy’’ prohibition of section 7. Next, based upon an extensive national survey of U.S. Fish and Wildlife Service (USFWS) section 7 consultations, we apportioned the co-extensive impacts in such a way as to isolate only those costs attributable to critical habitat designation. (In 2002, Industrial Economics, Inc. (IEc.) reviewed the consultation records from several U.S. Fish & Wildlife Service field offices across the country and analyzed the administrative costs of such consultations, based on data from the Federal Government Schedule Rates, Office of Personnel Management, 2007. IEc. developed an algorithm to allocate co-extensive costs between those that E:\FR\FM\02DEP1.SGM 02DEP1 63090 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules 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.’’ erowe on DSK5CLS3C1PROD with PROPOSALS-1 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 VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 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 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 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 E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS-1 exempt Elmendorf Air Force Base (EAFB) from the designated critical habitat. The Air Force seeks this exemption based on the existence of an Integrated Natural Resource Management Plan (INRMP), consistent with Public Law 108–136. However, because this military property extends seaward to MHHW and we have not proposed to designate as critical habitat any tributary waters within the EAFB areas covered by the INRMP, no portions of the EAFB areas overlap with the proposed critical habitat. Section 4(a)(3)(B)(i)’s exemption is therefore unnecessary and inapplicable to those areas. In the event that the proposed critical habitat boundaries might change in the final rule, we will evaluate this request and the benefit of the Elmendorf INRMP in providing for the conservation of the Cook Inlet beluga whale. We have also considered exclusion under ESA section 4(a)(3)(B)(i) for a military live-fire practice range on Fort Richardson, near Anchorage. The Eagle River Flats range (ERF) provides training in artillery such as mortars. While the boundaries for the ERF (i.e., the MHHW line) do not overlap with the proposed critical habitat, the firing range includes the lower reaches of Eagle River which could have been included in the designation (similar to the Susitna and Little Susitna Rivers). Research by Fort Richardson has documented beluga whale use, including feeding behavior, within this portion of Eagle River. We have considered the INRMP for Fort Richardson and whether that plan provides benefit for the Cook Inlet beluga whale. Based on our consideration of these factors, we conclude the Fort Richardson INRMP provides benefits for the Cook Inlet beluga whale and the exclusion of the ERF is consistent with section 4(a)(3)(B)(i) of the ESA. Therefore, the proposed designation does not include any area within the ERF. However, areas outside the area covered by the INRMP, such as those areas outside of and surrounding the ERF range, are not subject to the exemption contained in section 4(a)(3)(B)(i). ESA Section 4(b)(2) Analysis We have described the specific areas that fall within the ESA section 3(5) definition of critical habitat and that are eligible for designation as critical habitat. Section 4(b)(2) of the ESA requires the Secretary to consider the economic impact, impact on national security, and any other relevant impact of designation. The Secretary has the discretion to exclude any particular area VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 from designation if he determines the benefits of exclusion outweigh the benefits of designation of that particular area, based upon best scientific and commercial data. The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. The authority to exclude any particular area from the critical habitat designation is discretionary. To determine the ‘‘benefits of excluding a particular area,’’ we considered the previously-discussed Federal activities that have the potential to be changed, as a direct result of a section 7 consultation and application of the prohibition against destroying or adversely modifying critical habitat. We considered changes to those actions that could potentially be required to avoid destroying or adversely modifying critical habitat, regardless of whether the changes could also potentially be required to avoid jeopardizing the whales’ continued existence. When both ‘‘adverse modification’’ and ‘‘jeopardy’’ considerations were present, we apportioned the respective shares of the impacts of consultation, as described above, in the discussion of our General Analytic Approach. We also considered economic benefits of excluding each ‘‘particular’’ area, and considered national security benefits of excluding particular areas, based on military ownership, interests, or control. ESA section 4(b)(2) does not specify a method for the weighing process. Agencies are frequently required to balance benefits of regulations against impacts. Executive Order (E.O.) 12866 most recently established this requirement for Federal agency regulation. Executive branch guidance from the Office of Management and Budget (OMB) suggests that benefits should first be monetized (converted into dollars). Benefits that cannot be monetized should be quantified (converted into units). Where benefits can be neither monetized nor quantified, agencies are to describe the expected benefits (U.S. Office of Management and Budget, Circular A–4, September 17, 2003 (OMB, 2003)). The draft economic report (Entrix, 2009) describes in detail, the actions that may be affected and the estimate of economic impacts that might result from critical habitat designation. Section 4(b)(2) of the ESA requires that we balance the benefit of designation against the benefit of exclusion for each particular area. The benefit to the species of designation depends upon the conservation value of the area, the seriousness of the threats to that conservation value, and the extent to which an ESA section 7 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 63091 consultation or the educational aspects of designation will address those threats. If a threat bears a closer relationship to the destruction or adverse modification prohibition of section 7, we can begin to understand and give weight to the incremental benefit of designation, beyond the protection provided by listing and the jeopardy prohibition. We have identified the anthropogenic threats that face each area, and the likelihood that the destruction or adverse modification prohibition will enhance our ability to address those threats. Based upon the best available science, and the Regulatory Impact Review (RIR)/4(b)(2) preparatory analysis/Initial Regulatory Flexibility Analysis (IRFA), we believe designation of critical habitat will enhance our ability to address many of these threats, either through an ESA section 7 consultation or through ongoing public outreach and education. Because some of these threats bear a stronger relationship to adverse modification than to jeopardy, we also believe there is an incremental benefit of designation beyond the protection afforded by the jeopardy prohibition. The benefit of designation also depends on the conservation value of the area. The habitat areas for Cook Inlet beluga whales are unique and irreplaceable. Each of the proposed critical habitat areas supports a distinct aspect of the whales’ life history, and the conservation function of each area complements the conservation function of the other. Therefore, designation of each critical habitat area benefits the conservation function of the other area. For all of the reasons discussed above, we consider the benefit of designation of each area (when taken in its entirety) to be high. The benefit of exclusion of an area depends on some of the same factors – the likelihood of an ESA section 7 consultation and the extent to which an activity is likely to change, either in response to critical habitat designation, or as a result of that consultation. As with the benefit of the designation-side of the equation, if a threat bears a closer relationship to the adverse modification prohibition of section 7, we can begin to understand and give weight to the incremental cost of designation (benefit of inclusion) beyond the cost associated with listing and the jeopardy prohibition. In balancing the potential costs of designation, we also considered the nature of the threats and the relevance of section 7’s destruction or adverse modification prohibition to each threat. Because adverse modification and jeopardy bear an equally strong E:\FR\FM\02DEP1.SGM 02DEP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 63092 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules relationship to many activities, we gave these costs of designation moderate weight. We recognize that we have not monetized (quantified) the costs that may be associated with the education benefit of designation. Section 4(b)(2) requires consideration of national security interests, in addition to any economic factors. Possible impacts to national security due to designation of critical habitat include: preventing, restricting, or delaying training access to these sites; restricting or delaying training activities; and delaying response times for troop deployments and overall operations. The benefit of excluding these particular areas may include that the Department of Defense would only be required to comply with the jeopardy prohibition of ESA section 7(a)(2) and not the adverse modification prohibition. However, unless the areas excluded include areas outside and beyond the military properties, it is possible that consultation would continue to include impacts to critical habitat, because of the requirement to consider indirect, as well as direct impacts. Two military installations may be affected by designation of critical habitat for Cook Inlet beluga whales. These are the Fort Richardson Army Base and Elmendorf Air Force Base, both located immediately adjacent to the critical habitat Area 1. Additionally, the Department of Defense has operational issues associated with the Port of Anchorage. The draft economic report presents economic costs associated with designation for the two installations. In response to the ANPR, we received a request to delete the Port of Anchorage (POA) from the proposed critical habitat. The POA cites the designation of the Port as a Strategic Military Seaport by the Department of the Army’s Military Surface and Distribution Command as justification for their request. We have requested additional information from the POA regarding this specific request for inclusion in the final 4(b)(2) analysis, but we do not propose this exclusion. Therefore, at present, no finding has been made on this request. We did not identify other relevant impacts of designation beyond economic impacts and impacts on national security. At present, we believe that the benefits of excluding any particular area do not outweigh the benefits of designating those areas as critical habitat, given the endangered status of the whales, the uniqueness of the habitat, the fact that threats to habitat VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 were a primary concern leading to our endangered finding, and the fact that designation will enhance the ability of an ESA section 7 consultation to protect the critical elements of this habitat. Public Hearings 50 CFR 424.16(c)(3) requires the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed rule to designate critical habitat. Such hearings provide the opportunity for interested individuals and parties to give opinions, exchange information, and engage in a constructive dialogue concerning this proposed rule. We encourage the public’s involvement in this matter. Based on the level of past interest in Federal actions concerning Cook Inlet beluga whales, we intend to conduct at least one public hearing. A notice of this and any additional hearings will appear in the Federal Register, local newspapers, and on our website at least 2 weeks prior to the meeting. Classifications Clarity of the Rule E.O. 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with its clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) What else could we do to make this proposed rule easier to understand? You may send comments on how we could make this proposed rule easier to understand to one of the addresses identified in the ADDRESSES section. Regulatory Planning and Review In accordance with E.O. 12866, this document is a significant rule and has been reviewed by the OMB. As noted above, we have prepared several reports to support and assess the exclusion process under section 4(b)(2) of the ESA. The economic benefits and costs of the proposed critical habitat designations are described in our draft economic report (i.e. RIR/4(b)(2) preparatory analysis/IRFA). Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must either certify that the action is not likely to result in significant adverse economic impacts on a substantial number of small entities; or it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). NMFS has prepared an initial regulatory flexibility analysis (IRFA) and this document is available upon request or see our web site (see ADDRESSES). This IRFA evaluates the potential effects of the proposed critical habitat designation on federally regulated small entities. The reasons for the action, a statement of the objectives of the action, and the legal basis for the proposed rule, are discussed earlier in the preamble. A summary of the analysis follows. The small entities that may be directly regulated by this action are those that seek formal approval (e.g., a permit) from, or are otherwise authorized by, a Federal agency to undertake an action or activity that ‘‘may affect’’ critical habitat for the Cook Inlet beluga whale. Submission by a small entity of such a request for a Federal agency’s approval would require that agency (i.e., the ‘action agency’) to consult with NMFS (i.e., the ‘consulting agency’). Consultations vary from simple to highly complex, depending on the specific facts of each action or activity for which application is made. Attributable costs are directly proportionate to complexity. In the majority of instances projected to take place under the proposed critical habitat designation, these costs are expected to accrue solely to the Federal agencies that are party to the consultation. In only the most complex formal consultations, a private sector applicant might incur costs directly attributable to the designation consultation process. For example, if the formal consultation concludes that the proposed activity is likely to destroy or adversely modify critical habitat, the applicant will have to implement modifications to avoid such effects. These modifications have the potential to result in adverse economic impacts, although they need not necessarily do so. An examination of the Federal agencies with management, enforcement, or other regulatory authority over activities or actions within, or immediately adjacent to, the proposed critical habitat area, resulted E:\FR\FM\02DEP1.SGM 02DEP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules in the following list: the Army Corps of Engineers (COE), EPA, Minerals Management Service (MMS), Maritime Administration (MARAD), U.S. Coast Guard (USCG), Department of Defense (DOD), NOAA Fisheries Service (NMFS), Federal Highway Administration (FHWA), Federal Energy Regulatory Commission (FERC), and Federal Aviation Administration (FAA). Activities or actions with a nexus to each, and which may be expected to require some level of consultation, include: COE permits for structures and work in waters of the United States; EPA permitting of discharges under the National Pollutant Discharge Elimination System; MMS oil and gas exploration and production permitting in Federal waters of Cook Inlet; MARAD permits for the Port of Anchorage expansion; USCG permits for spill response plans; DOD activities at the Army’s Fort Richardson and Air Force’s Elmendorf facilities; NMFS authorizations of commercial fisheries, and review of subsistence harvest allowances; FHWA funding of highway and bridge improvements along Turnagain Arm; FERC permits for turbine electrical generation projects (wind and tidal); FAA permitting of regional airport expansions and development. A 10-year ‘‘post-critical habitat designation’’ analytical horizon was adopted, during which time NMFS may reasonably expect to consult on critical habitat-related actions with one or more of the action agencies identified above. The majority of the consultations are expected to be ‘‘informal’’ (we estimate ninety percent of all consultations would be informal). In each of these, no adverse impacts would accrue to the entity seeking a permit, authorization, etc. The more complex and costly ‘‘formal’’ consultations are projected to account for, perhaps, ten percent. Here, NMFS and the Federal action agency may develop alternatives that prevent the likelihood that critical habitat will be destroyed or adversely affected. The extent to which these ‘‘formal’’ consultations will result in more than de minimus third party costs, as well as whether such third parties constitute small entities for Regulatory Flexibility Act purposes, cannot be predicted, a priori. Often, no consultation will be necessary, as all questions can be resolved through the ‘‘technical assistance’’ process. We lack sufficient information to estimate precisely the number of consultations that may result in a determination of destruction or adverse modification to critical habitat. However, on the basis of the underlying VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 biological, oceanographic, and ecological science used to identify the PCEs that define critical habitat for the Cook Inlet beluga whale, as well as the foregoing assumptions, empirical data, historical information, and accumulated experience regarding human activity in Cook Inlet, we believe that various federally authorized activities have the potential to ‘‘destroy or adversely modify’’ Cook Inlet beluga whale critical habitat. While we are unable to predict in advance exactly which activities might result in the destruction of adverse modification of the proposed critical habitat, we note that such activities are restricted to those actions impacting the identified essential features, or PCEs. Importantly, however, an action that may adversely affect a PCE is not necessarily one that will result in the destruction or adverse modification of the proposed critical habitat. Executive Order 13211 On May 18, 2001, the President issued an E.O. on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking any action that promulgates or is expected to lead to the promulgation of a final rule or regulation that (1) is a significant regulatory action under E.O. 12866 and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy. NMFS has considered the potential impacts of this action on the supply, distribution, or use of energy and finds the designation of critical habitat will not have impacts that exceed the thresholds identified above. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act, we make the following findings: (a) This proposed rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 63093 program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that nonFederal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above to State governments. (b) Due to the prohibition against the take of this species both within and outside of the designated areas, we do not anticipate that this proposed rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required. Takings In accordance with E.O. 12630, the proposed rule does not have significant takings implications. A takings implication assessment is not required. The designation of critical habitat E:\FR\FM\02DEP1.SGM 02DEP1 63094 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules affects only Federal agency actions. Private lands do not exist within the proposed critical habitat and therefore would not be affected by this action. Federalism In accordance with E.O. 13132, this proposed rule does not have significant federalism effects. A federalism assessment is not required. In keeping with Department of Commerce policies, we request information from, and will coordinate development of, this proposed critical habitat designation with appropriate state resource agencies in Alaska. The proposed designation may have some benefit to state and local resource agencies in that the areas essential to the conservation of the species are more clearly defined, and the PCEs of the habitat necessary to the survival of Cook Inlet beluga whale are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist local governments in long-range planning (rather than waiting for caseby-case ESA section 7 consultations to occur). erowe on DSK5CLS3C1PROD with PROPOSALS-1 Civil Justice Reform In accordance with E.O. 12988, the Department of Commerce has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the ESA. This proposed rule uses standard property descriptions and identifies the PCEs within the designated areas to assist the public in understanding the habitat needs of the Cook Inlet beluga whale. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This proposed rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act NMFS has determined that an environmental analysis as provided for under the National Environmental VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 Policy Act of 1969 for critical habitat designations made pursuant to the ESA is not required. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996). Government-to-Government Relationship The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175 - Consultation and Coordination with Indian Tribal Governments- outlines the responsibilities of the Federal Government in matters affecting tribal interests. Public Law 108–199 (2004), codified in notes to 25 U.S.C.A. § 450, requires all Federal agencies to consult with Alaska Native corporations on the same basis as Indian tribes under this Executive Order. NMFS has determined the proposed designation of critical habitat for the Cook Inlet beluga whale in Cook Inlet, Alaska, would not have tribal implications, nor affect any tribal governments or Native corporations. Although the Cook Inlet beluga whale may be hunted by Alaska Natives for traditional use or subsistence purposes, none of the proposed critical habitat areas occurs on tribal lands, affects tribal trust resources, or the exercise of tribal rights. References Cited A complete list of all references cited in this rulemaking can be found on our website at http://www.fakr.noaa.gov/ and is available upon request from the NMFS office in Juneau, Alaska (see ADDRESSES section). List of Subjects in 50 CFR Part 226 Endangered and threatened species. Dated: November 24, 2009. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, we propose to amend part 226, title 50 of the Code of Regulations, as set forth below: PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 PART 226—DESIGNATED CRITICAL HABITAT 1. The authority citation of part 226 continues to read as follows: Authority: 16 U.S.C. 1533. 2. Add a new § 226.220 as follows: § 226.220 Critical habitat for the Cook Inlet beluga whale. Critical habitat is designated in Cook Inlet, Alaska, for the Cook Inlet beluga whale as described in paragraphs (a) and (b) of this section. The textual description of this critical habitat is the definitive source for determining the critical habitat boundaries. General location maps are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries. Critical habitat does not include manmade structures and the land on which they rest within the designated boundaries described in (a) (1) and (a) (2) that were in existence as of [Insert effective date of the FINAL RULE]. (a) Critical Habitat Boundaries. Critical habitat includes two specific marine areas in Cook Inlet, Alaska. These areas are bounded on the upland by Mean Higher High Water (MHHW) datum, other than the lower reaches of three tributary rivers. Critical habitat shall not extend into the tidallyinfluenced channels of tributary waters of Cook Inlet, with the exceptions noted in the descriptions of each critical habitat area. (1) Area 1. All marine waters of Cook Inlet north of a line from the mouth of Threemile Creek (61° 08.5’ N., 151° 04.4’ W.) connecting to Point Possession (61° 02.1’ N., 150° 24.3’ W.), including waters of the Susitna River south of 61° 20.0’ N., the Little Susitna River south of 61° 18.0’ N., and the Chikaloon River north of 60° 53.0’ N. (2) Area 2. All marine waters of Cook Inlet south of a line from the mouth of Threemile Creek (61° 08.5’ N., 151° 04.4’ W.) to Point Possession (61° 02.1’ N., 150° 24.3’ W.), including waters within 2 nautical miles seaward of MHHW along the western shoreline of Cook Inlet between 60° 25’ N. and the mouth of the Douglas River (59° 04’ N., 153° 46.0’ W.); all waters of Kachemak Bay east of 151° 40.0’ W.; and waters of the Kenai River below the Warren Ames bridge at Kenai, Alaska. (b) A map of the proposed critical habitat for Cook Inlet beluga whale follows. E:\FR\FM\02DEP1.SGM 02DEP1 (c) Primary constituent elements. The primary constituent elements essential to the conservation of Cook Inlet beluga whales are: (1) Intertidal and subtidal waters of Cook Inlet with depths <30 feet (MLLW) and within 5 miles of high and medium flow anadromous fish streams. (2) Primary prey species consisting of four (4) species of Pacific salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific cod, walleye pollock, saffron cod, and yellowfin sole. (3) The absence of toxins or other agents of a type or amount harmful to beluga whales. (4) Unrestricted passage within or between the critical habitat areas. (5) The absence of in-water noise at levels resulting in the abandonment of habitat by Cook Inlet beluga whales. [FR Doc. E9–28760 Filed 12–1–09; 8:45 am] BILLING CODE 3510–22–S VerDate Nov<24>2008 14:37 Dec 01, 2009 Jkt 220001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 0907171140–91141–01] RIN 0648–XQ38 Atlantic Highly Migratory Species; 2010 Atlantic Bluefin Tuna Quota Specifications AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments; notice of public hearings. SUMMARY: NMFS proposes 2010 fishing year specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT quotas for each of the established domestic fishing categories. This action PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 63095 is necessary to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS solicits written comments and will hold public hearings to receive oral comments on these proposed actions. DATES: Written comments must be received on or before January 4, 2010. The public hearing dates are: 1. December 14, 2009, 3 p.m. to 5 p.m., Silver Spring, MD. 2. December 15, 2009, 3 p.m. to 5 p.m., Gloucester, MA. ADDRESSES: You may submit comments, identified by ‘‘0648–XQ38’’, by any one of the following methods: E:\FR\FM\02DEP1.SGM 02DEP1 EP02DE09.040</GPH> erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 74, No. 230 / Wednesday, December 2, 2009 / Proposed Rules

Agencies

[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 http://www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK, 99802-1668.
     Fax: 907-586-7557
     Hand deliver to the Federal Building: 709 West 9th Street, 
Room 420A, Juneau, AK.
    All comments received are a part of the public record and generally 
will be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business

[[Page 63081]]

Information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter N/A in the required fields, if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, WordPerfect, of Adobe portable document 
file (PDF) format only.
    The proposed rule, maps, status reviews, and other materials 
relating to Cook Inlet beluga whales and this proposal can be found on 
our Web site at: http://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Kaja Brix, NMFS, Alaska Region, (907) 
586-7824; or Marta Nammack, NMFS, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Rulemaking Background

    We are responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) are threatened or endangered and 
for designating critical habitat for these species under the Endangered 
Species Act (ESA) (16 U.S.C. 1531 et seq.). To be considered for 
listing under the ESA, a group of organisms must constitute a 
``species'' which is defined in section 3 of the ESA to include ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature.'' We consider a group of organisms to be a DPS for 
purposes of ESA listing when it is both discrete from other populations 
and significant to the species to which it belongs (61 FR 4722; 
February 7, 1996). We previously found the Cook Inlet beluga whale 
population segment to be reproductively, genetically, and physically 
discrete from the four other known beluga populations in Alaska and 
significant because it is in a unique ecological setting for the taxon, 
and its loss would result in a significant gap in the taxon's range. 
Following completion of a Status Review of the Cook Inlet beluga whale 
under the ESA, we published a proposed rule to list this DPS as an 
endangered species on April 20, 2007 (72 FR 19854). We subsequently 
extended the date for final determination on the proposed action by 6 
months, until October 20, 2008 (73 FR 21578), as provided for by the 
ESA (section 4(b)(6)(B)(i)). We published a Final Rule to list the Cook 
Inlet beluga whale as an endangered species on October 22, 2008 (73 FR 
62919). Initiating the process for designation of critical habitat, we 
published an Advance Notice of Proposed Rulemaking on April 14, 2009 
(74 FR 17131).
    We considered various alternatives to the critical habitat 
designation for the Cook Inlet beluga whale. The alternative of not 
designating critical habitat for the Cook Inlet beluga whale would 
impose no economic, national security, or other relevant impacts, but 
would not provide any conservation benefit to the species. This 
alternative is not .proposed because such an approach does not meet the 
legal requirements of the ESA and would not provide for the 
conservation of Cook Inlet beluga whale. The alternative of designating 
all eligible occupied habitat areas also was considered and rejected 
because some areas within the occupied range were not considered to be 
critical habitat, and did not contain the identified physical or 
biological features that are essential to the conservation of the Cook 
Inlet beluga.
    An alternative to designating critical habitat within all eligible 
occupied areas is the designation of critical habitat within a subset 
of these areas. Under section 4(b)(2) of the ESA, we must consider the 
economic impacts, impacts to national security, and other relevant 
impacts of designating any particular area as critical habitat. We have 
the discretion to exclude any particular area from designation as 
critical habitat if the benefits of exclusion (i.e., the impacts that 
would be avoided if an area were excluded from the designation) 
outweigh the benefits of designation (i.e., the conservation benefits 
to the Cook Inlet beluga whale if an area were designated), so long as 
exclusion of the area will not result in extinction of the species. 
Exclusion under section 4(b)(2) of the ESA of one or more of the areas 
considered for designation would reduce the total impacts of 
designation. The determination to exclude any particular areas depends 
on our ESA 4(b)(2) analysis, which is described in detail in the ESA 
4(b)(2) analysis report. Under this proposed rule (the preferred 
alternative), we do not propose to exclude any areas. The total 
estimated economic impact associated with this proposed rule is 
$157,000 to $472,000 (discounted at 7 percent) or $187,000 to $571,000 
(discounted at 3 percent). We propose this alternative because it 
results in a critical habitat designation that provides for the 
conservation of the Cook Inlet beluga whale, without economic effects 
of sufficient significance to warrant any exclusions from that 
designation. Other areas within their range did not contain the 
identified physical or biological features that are essential to the 
conservation of the Cook Inlet beluga. This alternative also meets the 
requirements under the ESA and our joint NMFS-USFWS regulations 
concerning critical habitat.

Critical Habitat

    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' This section also grants the Secretary of Commerce 
(Secretary) discretion to exclude any area from critical habitat if he 
determines ``the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat.'' The Secretary's 
discretion is limited, as he may not exclude areas that ``will result 
in the extinction of the species.''
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
the specific areas within the geographical area occupied by the 
species, at the time it is listed . . ., on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed . . 
. upon a determination by the Secretary that such areas are essential 
for the conservation of the species.''
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement is additional to the section 7 requirement that Federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.

Issues for Consideration and Evaluation

    Section 4(a)(3) of the ESA requires us to designate critical 
habitat for threatened and endangered species. We are currently 
proposing to designate critical habitat for the Cook Inlet beluga 
whale. We have considered a number of issues in developing this 
proposed rule:
     What areas are occupied by the species at the time of 
listing?
     What physical and biological features are essential to the 
species' conservation?
     Are those essential features ones that may require special 
management considerations or protection?

[[Page 63082]]

     Are there any areas outside those currently occupied that 
are ``essential for conservation?''
     What economic, national security, and other relevant 
impacts would result from a critical habitat designation?
     What is the appropriate geographic scale for weighing the 
benefits of exclusion and benefits of designation?
     Will the exclusion of any particular area from the 
critical habitat designation result in the extinction of the species?
    Answering these questions involves a variety of considerations that 
we outline below.

Cook Inlet Beluga Whale Biology and Habitat Use

    The beluga whale is a small, toothed whale in the family 
Monodontidae, a family it shares with only the narwhal. Belugas are 
also known as ``white whales'' because of the white coloration of the 
adults. The beluga whale is a northern hemisphere species that inhabits 
fjords, estuaries, and shallow water of Arctic and subarctic oceans. 
Five distinct stocks of beluga whales are currently recognized in 
Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea, Bristol 
Bay, and Cook Inlet. The Cook Inlet population is numerically the 
smallest of these, and is the only one of the five Alaskan stocks 
occurring south of the Alaska Peninsula in waters of the Gulf of 
Alaska.
    A detailed description of the biology of the Cook Inlet beluga 
whale may be found in the Proposed Listing Rule (72 FR 19854; April 20, 
2007). Belugas generally occur in shallow, coastal waters, and while 
some populations make long seasonal migrations, Cook Inlet belugas 
reside in Cook Inlet year round. Data from satellite tagged whales 
documented that Cook Inlet belugas concentrate in the upper Inlet at 
rivers and bays in the summer and fall, and then tend to disperse into 
deeper waters moving to mid Inlet locations in the winter. The 
Traditional Ecological Knowledge (TEK) of Alaska Natives and systematic 
aerial survey data document a contraction of the summer range of Cook 
Inlet belugas over the last 2 decades of the twentieth century. While 
belugas were once abundant and frequently sighted in the lower Inlet 
during summer, they are now primarily concentrated in the upper Inlet. 
This constriction is likely a function of a reduced population seeking 
the highest quality habitat that offers the most abundant prey, most 
favorable feeding topography, the best calving areas, and the best 
protection from predation. An expanding population would likely use the 
lower Inlet more extensively.
    While mating is assumed to occur sometime between late winter and 
early spring, there is little information available on the mating 
behavior of belugas. Most calving in Cook Inlet is assumed to occur 
from mid-May to mid-July (Calkins, 1983), although Native hunters have 
observed calving from April through August (Huntington, 2000). Newborn 
calves have been observed in mid-to-late July. Alaska Natives described 
calving areas as the northern side of Kachemak Bay in April and May, 
off the mouths of the Beluga and Susitna rivers in May, and in 
Chickaloon Bay and Turnagain Arm during the summer (Huntington, 2000). 
The warmer waters from these freshwater sources may be important to 
newborn calves during their first few days of life (Katona et al., 
1983; Calkins, 1989). Surveys conducted from 2005 to 2007 in the upper 
Inlet by LGL, Inc., documented neither localized calving areas nor a 
definitive calving season, since calves were encountered in all 
surveyed locations and months (April-October) (McGuire et al., 2008). 
The warmer, fresher coastal waters may also be important areas for 
belugas' seasonal summer molt.
    Cook Inlet belugas are opportunistic feeders and feed on a wide 
variety of prey species, focusing on specific species when they are 
seasonally abundant. Pacific eulachon are an important early spring 
food resource for beluga whales in Cook Inlet, as evidenced by the 
stomach contents of a beluga hunted near the Susitna River in April 
1998 that was filled exclusively with eulachon (NMFS unpubl. data). 
These fish first enter the upper Inlet in April, with two major 
spawning migrations occurring in the Susitna River in May and July. The 
early run is estimated at several hundred thousand fish and the later 
run at several million (Calkins, 1989).
    In the summer, as eulachon runs begin to diminish, belugas rely 
heavily on several species of salmon as a primary prey resource. Beluga 
whale hunters in Cook Inlet reported one whale having 19 adult king 
salmon in its stomach (Huntington, 2000). NMFS (unpubl. data) reported 
a 14 foot 3 inch (4.3 m) male with 12 coho salmon, totaling 61.5 lbs 
(27.9 kg), in its stomach.
    The seasonal availability of energy-rich prey such as eulachon, 
which may contain as much as 21 percent oil (Payne et al., 1999), and 
salmon are very important to the energetics of belugas (Abookire and 
Piatt, 2005; Litzow et al., 2006). Native hunters in Cook Inlet have 
stated that beluga whale blubber is thicker after the whales have fed 
on eulachon than in the early spring prior to eulachon runs. In spring, 
the whales were described as thin with blubber only 2-3 inches (5-8 cm) 
thick compared to the fall when the blubber may be up to 1 ft (30 cm) 
thick (Huntington, 2000). Eating such fatty prey and building up fat 
reserves throughout spring and summer may allow beluga whales to 
sustain themselves during periods of reduced prey availability (e.g., 
winter) or other adverse impacts by using the energy stored in their 
blubber to meet metabolic needs. Mature females have additional energy 
requirements. The known presence of pregnant females in late March, 
April, and June (Mahoney and Shelden, 2000; Vos and Shelden, 2005) 
suggests breeding may be occurring in late spring into early summer. 
Calves depend on their mother's milk as their sole source of nutrition, 
and lactation lasts up to 23 months (Braham, 1984), though young whales 
begin to consume prey as early as 12 months of age (Burns and Seaman, 
1986). Therefore, the summer feeding period is critical to pregnant and 
lactating belugas. Summertime prey availability is difficult to 
quantify. Known salmon escapement numbers and commercial harvests have 
fluctuated widely throughout the last 40 years; however, samples of 
harvested and stranded beluga whales have shown consistent summer 
blubber thicknesses.
    In the fall, as anadromous fish runs begin to decline, belugas 
again return to consume the fish species found in nearshore bays and 
estuaries. This includes cod species as well as other bottom-dwellers 
such as Pacific staghorn sculpin and flatfishes, such as starry 
flounder and yellowfin sole. This change in diet in the fall is 
consistent with other beluga populations known to feed on a wide 
variety of food. Pacific staghorn sculpin are commonly found nearshore 
in bays and estuaries on sandy substrate (Eschmeyer et al., 1983). 
Flatfish are typically found in very shallow water and estuaries during 
the warm summer months and move into deeper water in the winter as 
coastal water temperatures cool (though some may occur in deep water 
year-round) (Morrow, 1980).
    The available information indicates that Cook Inlet belugas 
continue to move within the Inlet during the winter months. They 
concentrate in deeper waters in mid Inlet past Kalgin Island, with 
occasional forays into the upper Inlet, including the upper ends of 
Knik and Turnagain Arms. While the beluga whales move into the mid 
Inlet during the winter, ice cover does not appear to limit their 
movements. Their winter

[[Page 63083]]

distribution does not appear to be associated with river mouths, as it 
is during the warmer months. The spatial dispersal and diversity of 
winter prey likely influence the wider beluga winter range throughout 
the mid and lower Inlet.
    There is obvious and repeated use of certain habitats by Cook Inlet 
beluga whales. Intensive aerial abundance surveys conducted in June and 
July since 1993 have consistently documented high use of Knik Arm, 
Turnagain Arm, Chickaloon Bay and the Susitna River delta areas of the 
upper Inlet. Ninety-six to one hundred percent of all belugas sighted 
during these surveys were in the upper Inlet near Anchorage (Rugh et 
al., in review). The high use of these areas by belugas is further 
supported by data from satellite tagging studies.
    The range of Cook Inlet belugas has been previously defined as the 
waters of the Gulf of Alaska north of 58.0[deg] N. and freshwater 
tributaries to these waters based on then-available scientific data (65 
FR 34590, May 31, 2000; MMPA Sec. 216.15(g); 76 FR 62919, Oct. 22, 
2008). There are few beluga sightings in the Gulf of Alaska outside 
Cook Inlet. In the 1970s and 1980s, beluga sightings occurred across 
much of the northern and central parts of Cook Inlet, but in the 1990s 
the summer distribution narrowed to primarily the northernmost portions 
of Cook Inlet. More of the Inlet was used by beluga whales during the 
spring, summer, and fall during the 1970s and 1980s than is presently 
used. However, because sightings continue to occur over the entire 
described range, we consider the present range of this DPS to be 
occupied habitat. The present range of the listed Cook Inlet beluga is 
limited to Cook Inlet waters north of a line from Cape Douglas to Cape 
Elizabeth (Figure 1).

Proposed Critical Habitat

    After considering comments received in response to the Advance 
Notice of Proposed Rulemaking (74 FR 17131; April 14, 2009), sighting 
reports, satellite telemetry data, TEK, scientific papers and other 
research, the biology and ecology of the Cook Inlet DPS of beluga 
whales, and information indicating the presence of one or more of the 
identified PCEs within certain areas of their range, we have identified 
the ``specific areas'' within the geographical area occupied by the 
Cook Inlet beluga whale to be proposed as critical habitat. We propose 
to designate critical habitat within the following areas (Figure 1).
    Area 1: Area 1 encompasses 1,918 square kilometers (741 sq. mi.) of 
Cook Inlet northeast of a line from the mouth of Threemile Creek 
(61[deg] 08.5' N., 151[deg] 04.4' W.) to Point Possession (61[deg] 
02.1' N., 150[deg] 24.3' W.). This area is bounded by the Municipality 
of Anchorage, the Matanuska-Susitna Borough, and the Kenai Peninsula 
borough. The area contains shallow tidal flats, river mouths or 
estuarine areas, and is important as foraging and calving habitats. 
Mudflats and shallow areas adjacent to medium and high flow 
accumulation streams may also provide for other biological needs, such 
as molting or escape from predators (Shelden et al., 2003). Area 1 also 
has the highest concentrations of belugas from spring through fall as 
well as the greatest potential for adverse impact from anthropogenic 
threats.
    Many rivers in Area 1 habitat have large eulachon and salmon runs. 
Two such rivers in Turnagain Arm, Twenty-mile River and Placer River, 
are visited by belugas in early spring, indicating the importance of 
eulachon runs for beluga feeding. Beluga use of upper Turnagain Arm 
decreases in the summer and then increases again in August through the 
fall, coinciding with the coho salmon run. Early spring (March to May) 
and fall (August to October) use of Knik Arm is confirmed by studies by 
Funk et al. (2005). Intensive summer feeding by belugas occurs in the 
Susitna delta area, Knik Arm and Turnagain Arm.

[[Page 63084]]

[GRAPHIC] [TIFF OMITTED] TP02DE09.038

    Whales regularly move into and out of Knik Arm and the Susitna 
delta (Hobbs et al., 2000; Rugh et al., 2004). The combination of 
satellite telemetry data and long-term aerial survey data demonstrate 
beluga whales use Knik Arm 12 months of the year, often entering and 
leaving the Arm on a daily basis (Hobbs et al., 2005; Rugh et al., 
2005, 2007). These surveys demonstrate intensive use of the Susitna 
delta area (from the Little Susitna River to Beluga River) and 
Chickaloon Bay (Turnagain Arm) with frequent large scale movements 
between the delta area, Knik Arm and Turnagain Arm. During annual 
aerial surveys conducted by NMML in June-July, up to 61 percent of the 
whales sighted in Cook Inlet were in Knik Arm (Rugh et al., 2000, 
2005). The Chickaloon Bay area also appears to be used by belugas 
throughout the year.
    Belugas are particularly vulnerable to impacts in Area 1 due to 
their high seasonal densities and the biological importance of the 
area. Because of their intensive use of this area (e.g., foraging, 
nursery, predator avoidance), activities that restrict or deter use of 
or access to Area 1 habitat could reduce beluga calving success, impair 
their ability to secure prey, and increase their susceptibility to 
predation by killer whales. Activities that reduce anadromous fish runs 
could also negatively impact beluga foraging success, reducing their 
fitness, survival, and recovery. Furthermore, the tendency for belugas 
to occur in high concentrations in Area 1 habitat predisposes them to 
harm from such events as oil spills.
    Area 2: Area 2 consists of 5,891 square kilometers (2,275 square 
miles) of less concentrated spring and summer beluga use, but known 
fall and winter use areas. It is located south of Area 1, north of a 
line at 60[deg] 25.0' N., and includes nearshore areas south of 60[deg] 
25.0' N. along the west side of the Inlet and Kachemak Bay on the east 
side of the lower inlet.
    Area 2 is largely based on dispersed fall and winter feeding and 
transit areas in waters where whales typically occur in smaller 
densities or deeper waters. It includes both near and offshore areas of 
the mid and upper Inlet, and nearshore areas of the lower Inlet. Due to 
the role of this area as probable fall feeding areas, Area 2 includes 
Tuxedni,

[[Page 63085]]

Chinitna, and Kamishak Bays on the west coast and a portion of Kachemak 
Bay on the east coast. Winter aerial surveys (Hansen, 1999) sighted 
belugas from the forelands south, with many observations around Kalgin 
Island. Based on tracking data, Hobbs et al. (2005) document important 
winter habitat concentration areas reaching south of Kalgin Island.
    Belugas have been regularly sighted at the Homer Spit and the head 
of Kachemak Bay, appearing during spring and fall of some years in 
groups of 10-20 individuals (Speckman and Piatt, 2000). Belugas have 
also been common at Fox River Flats, Muddy Bay, and the northwest shore 
of Kachemak Bay (NMFS unpubl. data), sometimes remaining in Kachemak 
Bay all summer (Huntington, 2000).
    Dive behavior indicates beluga whales make relatively deeper dives 
(e.g., to the bottom) and are at the surface less frequently in Area 2, 
and hence are less frequently observed (Hobbs et al., 2005). It is 
believed these deep dives are associated with feeding during the fall 
and winter months (NMFS unpubl. data). The combination of deeper dives, 
consistent use of certain areas, and stomach content analyses indicate 
that belugas whales are actively feeding in these areas. Hence, deeper 
mid Inlet habitats may be important to the winter survival and recovery 
of Cook Inlet beluga whales.

Physical and Biological Features Essential for Conservation

    ESA section 3(5)(A)(i) defines critical habitat to include those 
``specific areas within the geographical area occupied by the species 
at the time it is listed . . . on which are found those physical or 
biological features . . . (I) essential to the conservation of the 
species and (II) which may require special management considerations or 
protection.'' Joint NMFS/FWS regulations for listing endangered and 
threatened species and designating critical habitat at section 50 CFR 
424.12(b) state that the agency ``shall consider those physical and 
biological features that are essential to the conservation of a given 
species and that may require special management considerations or 
protection'' (also referred to as ``Essential Features'' or ``Primary 
Constituent Elements''). Pursuant to the regulations, such requirements 
include, but are not limited to, the following: (1) Space for 
individual and population growth, and for normal behavior; (2) food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for breeding, 
reproduction, rearing of offspring, germination, or seed dispersal; and 
(5) habitats that are protected from disturbance or are representative 
of the historic geographical and ecological distributions of a species. 
These regulations go on to emphasize that the agency shall focus on 
essential features within the specific areas considered for 
designation. These features ``may include, but are not limited to, the 
following: roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dryland, water quality or quantity, geological 
formation, vegetation type, tide, and specific soil types.''
    Scientific research, direct observation, and TEK indicate fish are 
the primary prey species of the Cook Inlet beluga whale, and that 
certain species are especially important. This importance may be due to 
feeding strategies of the whales, physical attributes of the prey 
(e.g., size), the caloric value of the prey, the availability of the 
prey, and the life-history aspects of the whales, among other 
considerations. Two fish species that are highly utilized by Cook Inlet 
beluga whales are king or Chinook salmon and Pacific eulachon. Both of 
these species are characterized as having very high fat content, 
returning to the upper Inlet early in the spring, and having adult 
(spawning) returns which occupy relatively narrow timeframes during 
which large concentrations of fish may be present at or near the mouths 
of tributary streams.
    Analysis of stomach contents and research of fatty acid signatures 
within beluga blubber indicate the importance of other species of fish 
and invertebrates to the diets of these whales. The most prominent of 
these are other Pacific salmon (sockeye, chum, and coho), Pacific cod, 
walleye pollock, saffron cod, and yellowfin sole. Beluga whales are 
also known to feed on a wide variety of vertebrate and invertebrate 
prey species. However, the aforementioned fish species occupy a 
prominent role in their foraging and energetic budgets and are 
considered essential to the beluga whale's conservation.
    NMFS research has considered the distribution of the Cook Inlet 
beluga whale and its correlations with behavior, habitat function, and 
physical parameters (Goetz et al., 2007). While these whales are highly 
mobile and capable of ranging over a large portion of Cook Inlet on a 
daily basis, in fact they commonly occupy very discrete areas of the 
Inlet, particularly during summer months. These areas are important 
feeding habitats, whose value is due to the presence of certain species 
of prey within the site, the numbers of prey species within the site, 
and the physical aspects of the site which may act to concentrate prey 
or otherwise facilitate feeding strategy. In upper Cook Inlet, beluga 
whales concentrate offshore from several important salmon streams and 
appear to use a feeding strategy which takes advantage of the 
bathymetry in the area. The channels formed by the river mouths and the 
shallow waters act as a funnel for salmon as they move past waiting 
belugas. Dense concentrations of prey may be essential to beluga whale 
foraging. Hazard (1988) hypothesized that beluga whales were more 
successful feeding in rivers where prey were concentrated than in bays 
where prey were dispersed. Fried et al. (1979) noted that beluga whales 
in Bristol Bay fed at the mouth of the Snake River, where salmon runs 
are smaller than in other rivers in Bristol Bay. However, the mouth of 
the Snake River is shallower, and hence may concentrate prey. Research 
on beluga whales in Bristol Bay suggests these whales preferred certain 
streams for feeding based on the configuration of the stream channel 
(Frost et al., 1983). This study theorized beluga whales' feeding 
efficiencies improve in relatively shallow channels where fish are 
confined or concentrated. Bathymetry and fish density may be more 
important than sheer numbers of fish in beluga feeding success. 
Although beluga whales do not always feed at the streams with the 
highest runs of fish, proximity to medium to high flow river systems is 
also an important descriptor in assigning importance to feeding 
habitats. Research has found beluga distribution in Cook Inlet is 
significantly greater near mudflats and medium and high flow 
accumulation rivers. (These waters were categorized in Goetz et al. 
(2007) using a digital elevation model, similar to drainage basins. A 
complete list of these waters may be found on the NMFS website http://www.fakr.noaa.gov/.) Beluga whales are seldom observed near small flow 
tributaries.
    Cook Inlet beluga whales are preyed upon by killer whales, their 
only known natural predator. We have received reports of killer whales 
throughout Cook Inlet, and have responded to several instances of 
predation within Turnagain Arm, near Anchorage.
    Given the small population size of the Cook Inlet beluga whales, 
predation may have a significant effect on beluga recovery. In addition 
to directly reducing the beluga population, the presence of killer 
whales in Cook Inlet may also increase stranding events. We consider 
killer whale predation to be a potentially significant threat to the 
conservation and recovery of these

[[Page 63086]]

whales. Beluga whales may employ several defense strategies against 
killer whale predation. One strategy is to retreat to shallow estuaries 
too shallow for the larger killer whales. These areas might also 
provide acoustical camouflage due to their shallow depths, silt loads, 
and multiple channels.
    Because of their importance in the Cook Inlet beluga whale's 
feeding strategy, as predator escape terrain, and in providing other 
habitat values, we consider ``mudflats,'' identified here as shallow 
and nearshore waters proximate to certain tributary streams, to a be 
physical feature essential to the conservation of the Cook Inlet beluga 
whale. Figure 2 presents the location of this feature within Cook 
Inlet.
[GRAPHIC] [TIFF OMITTED] TP02DE09.039

    For purposes of describing and locating this feature, and after 
consultation with the author of the model presented in Goetz et al. 
(2007), we determined spatial extent of this feature may best be 
described as being within the 30-foot (9.1 m) depth contour and within 
5 miles (8.0 km) of medium and high flow accumulation rivers.
    It appears Cook Inlet beluga whales have lower levels of 
contaminants stored in their bodies than other populations of belugas. 
Because these whales occupy the most populated and developed region of 
the state, they must compete with various anthropogenic stressors, 
including pollution. These whales often occur in dense aggregations 
within small nearshore areas, where they are predisposed to adverse 
effects of pollution. Beluga whales are apex predators, occupying the 
upper levels of the food chain. This predisposes them to illness and 
injury by biomagnification of certain pollutants. Another population of 
beluga whales found in the Gulf of St. Lawrence in Canada is 
characterized by very high body burdens of contaminants. There, high 
levels of PCBs, DDT, Mirex, mercury, lead, and indicators of 
hydrocarbon exposure have been detected in belugas. These substances 
are well-known for their toxic effects on animal life and for 
interfering with reproduction and resistance to disease. Many of these 
contaminants are transferred from mother to calf through nursing.
    Given present abundance levels, the impact of any additional 
mortalities to

[[Page 63087]]

the extinction risk for this DPS, the sensitivity of beluga whales to 
certain pollutants, their trophic position and biomagnifications, the 
fact that large numbers of Cook Inlet beluga whales typically occupy 
very small habitats, and that their range includes the most populated 
and industrialized area of the state, we consider water quality to be 
an important aspect of their ecology, and essential to their 
conservation within both areas 1 and 2.
    Cook Inlet beluga whales do not occupy an extensive range, and are 
not known to undertake migrations. Within their occupied range, 
however, these whales move freely and continuously. The range of the 
Cook Inlet beluga whale is neither biologically nor physically uniform. 
It ranges between shallow mudflats, glacial fjords, deep waters with 
marine salinities, vegetated shallows of predominantly freshwaters, and 
areas of the upper Inlet in which heavy ice scour, extreme tidal 
fluctuations, high silt content, low temperatures, and high turbidity 
work to limit any intertidal or persistent nearshore organisms. Beluga 
whales have adapted here by utilizing certain areas over time and space 
to meet their ecological needs. While much remains to be understood of 
their ecology and basic life history, it is apparent a large part of 
their movement and distribution is associated with feeding. Feeding 
habitat occurs near the mouths of anadromous fish streams, coinciding 
with the spawning runs of returning adult salmon. These habitats may 
change quickly as each species of salmon, and often each particular 
river, is characterized as having its individual run timing. Calving 
habitat is poorly described, but may depend on such factors as 
temperatures, depths, and salinities. Predator avoidance may be a very 
important habitat attribute, and is likely to exist only in shallows 
within Turnagain and Knik Arms of the upper Inlet. Causeways, dams, and 
non-physical effects (e.g., noise) can interfere with whale movements. 
It is essential to the conservation of Cook Inlet beluga whales that 
they have unrestricted access within and between the critical habitat 
areas.
    Beluga whales are known to be among the most adept users of sound 
of all marine mammals, using sound rather than sight for many important 
functions, especially in the highly turbid waters of upper Cook Inlet. 
Beluga whales use sound to communicate, locate prey, and navigate, and 
may make different sounds in response to different stimuli. Beluga 
whales produce high frequency sounds which they use as a type of sonar 
for finding and pursuing prey, and likely for navigating through ice-
laden waters. In Cook Inlet, beluga whales must compete acoustically 
with natural and anthropogenic sounds. Man-made sources of noise in 
Cook Inlet include large and small vessels, aircraft, oil and gas 
drilling, marine seismic surveys, pile driving, and dredging. The 
effects of man-made noise on beluga whales and associated increased 
``background'' noises may be analogous to a human's reduced visual 
acuity when confronted with heavy fog or darkness.
    Anthropogenic noise above ambient levels may cause behavioral 
reactions in whales (harassment) or mask communication between these 
animals. The effects of harassment may also include abandonment of 
habitat. At louder levels, noise may result in temporary or permanent 
damage to the whales' hearing. Empirical data exist on the reaction of 
beluga whales to in-water noise (harassment and injury thresholds) but 
are lacking regarding levels that might elicit more subtle reactions 
such as avoiding certain areas. Noise capable of killing or injuring 
beluga whales, or that might cause the abandonment of important 
habitats, would be expected to have consequences to this DPS in terms 
of survival and recovery. We consider ``quiet'' areas in which noise 
levels do not interfere with important life history functions and 
behavior of these whales to be an essential feature of this critical 
habitat. This feature is found in both areas 1 and 2.
    Based on the best scientific data available of the ecology and 
natural history of Cook Inlet beluga whales and their conservation 
needs, we have determined the following physical or biological features 
are essential to the conservation of this species:
    1. Intertidal and subtidal waters of Cook Inlet with depths <30 
feet (9.1 m) (MLLW) and within 5 miles (8.0 km) of high and medium flow 
accumulation anadromous fish streams;
    2. Primary prey species consisting of four (4) species of Pacific 
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific 
cod, walleye pollock, saffron cod, and yellowfin sole;
    3. The absence of toxins or other agents of a type or amount 
harmful to beluga whales;
    4. Unrestricted passage within or between the critical habitat 
areas; and
    5. Absence of in-water noise at levels resulting in the abandonment 
of habitat by Cook Inlet beluga whales.
    All of these features are found or identified within the areas 
proposed as critical habitat.

Critical Habitat Boundaries

    NMFS' ESA regulations relevant to describing a geographical area 
and ``specific areas'' state that ``each critical habitat will be 
defined by specific limits using reference points and lines as found on 
standard topographic maps of the area'' (50 CFR 424.12). These 
regulations require that we also identify the state(s), county(ies), or 
other local governmental units within which all or part of the critical 
habitat is located. However, the regulations note that such political 
units typically would not constitute the boundaries of critical 
habitat. In addition, the regulations state that ephemeral reference 
points (e.g., trees, sand bars) shall not be used in defining critical 
habitat.
    We have limited information on the distribution and occurrence of 
Cook Inlet beluga whales within tributary waters of Cook Inlet. 
Traditional Knowledge of Alaska Native hunters tells us these whales 
have occurred several miles up the Susitna and Beluga Rivers in past 
years, and whales have been observed above tidewater in the Knik River 
at Turnagain Arm. We propose critical habitat be bounded on the upland 
by Mean Higher High Water (MHHW) datum, the lower reaches of certain 
important tributary waters entering the Inlet, and the following 
descriptions:
    (1) Area 1. All marine waters of Cook Inlet north of a line 
connecting Point Possession (61.04[deg] N., 150.37[deg]. W) and the 
mouth of Threemile Creek (61.0855[deg] N., 151.0440[deg] W.), including 
waters of the Susitna River south of 61.33.33 N latitude, the Little 
Susitna River south of 61.30[deg] N. latitude, and the Chikaloon River 
north of 60.8833[deg] N. latitude.
    (2) Area 2. All marine waters of Cook Inlet south of a line 
connecting Point Possession (61.04[deg] N., 150.37[deg] W.) and the 
mouth of Threemile Creek (61.0855[deg] N., 151.0440[deg] W.) and north 
of 60.25[deg] N latitude, including waters within 2 nautical miles (3.2 
km) of MHHW along the western shoreline of Cook Inlet between 
60.25[deg] N. latitude and the mouth of the Douglas River (59.04[deg] 
N., 153.45[deg] W.); all waters of Kachemak Bay east of 40.00 W 
longitude; and waters of the Kenai River below the Warren Ames bridge 
at Kenai, Alaska.

Special Management Considerations or Protection

    An occupied area may be designated as critical habitat only if it 
contains physical and biological features that ``may require special 
management considerations or protection.'' It is important to note the 
term ``may require special management considerations or

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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

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agency ``shall designate as critical habitat areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' We are not proposing to designate 
any areas not occupied at the time of listing because any such areas 
are presently unknown (if they exist), and the value of any such 
habitat in conserving this species cannot be determined.

Activities That May be Affected by This Action

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate, in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat, or that may be affected by such designation. A wide variety of 
activities may affect critical habitat and, when carried out, funded, 
or authorized by a Federal agency, require consultation under section 7 
of the ESA. Such activities include: coastal development; pollutant 
discharge; navigational projects (dredging); bridge construction; 
marine tidal generation projects; marine geophysical research; oil and 
gas exploration, development, and production; Department of Defense 
activities; and hydroelectric development. We do not propose to include 
in critical habitat any manmade structures and the land on which they 
rest within the described boundaries that were in existence at the time 
of designation. While these areas would not be directly affected by 
designation, they may be affected if a Federal action associated with 
the area/structure (e.g., a discharge permit from the EPA) might have 
indirect impacts to critical habitat.
    Consistent with recent agency guidance on conducting adverse 
modification analyses, we will apply the statutory provisions of the 
ESA, including those in section 3 that define ``critical habitat'' and 
``conservation,'' to determine whether a proposed action might result 
in the destruction or adverse modification of critical habitat. These 
activities are discussed further in the following sections.

Impacts of Designation

    ESA Section 4(b)(2) provides that ``the Secretary shall designate 
critical habitat . . . on the basis of the best scientific data 
available and after taking into consideration the economic impact, 
impact to national security, and any other relevant impact of 
specifying any particular area as critical habitat.'' The primary 
impact of a critical habitat designation comes from the ESA section 
7(a)(2) requirement that Federal agencies ensure their actions are not 
likely to result in the destruction or adverse modification of critical 
habitat. Determining this impact is complicated by the fact that 
section 7(a)(2) contains the additional requirement that Federal 
agencies must ensure their actions are not likely to jeopardize the 
species' continued existence. The true impact of designation is the 
extent to which Federal agencies modify their actions to ensure their 
actions are not likely to adversely modify the critical habitat-beyond 
any modifications they would make because of the listing and 
requirement to avoid jeopardizing the continued existence of the listed 
species. Additional impacts of designation include state and local 
protections that may be triggered as a direct result of designation, 
and benefits that may arise from education of the public to the 
importance of an area for species conservation. We did not identify 
state or local protections that may be triggered by this proposed 
designation, but have identified educational benefits. We discuss 
educational benefits in the ``Benefits of Designation'' section below.
    We have sought to predict the incremental change in Federal agency 
activities as a result of critical habitat designation and the adverse 
modification prohibition, beyond the changes predicted to occur as a 
result of the listing and the jeopardy prohibition, to the fullest 
extent practicable, given available information and scientific 
knowledge. We examined the types of activities that may be federally 
authorized, funded, or undertaken that have the potential to affect 
Cook Inlet beluga whale critical habitat. We identified several 
specific categories of activities and/or economic sectors that may 
affect Cook Inlet beluga critical habitat and, therefore, would be 
subject to ESA section 7's adverse modification requirements. These 
include: fishing (commercial, sport, personal-use, and subsistence), 
marine transportation (vessel traffic, port development, transshipment 
of goods, ferry and cruise ship activity), energy (oil and natural gas, 
coal, geothermal, wind, and tidal generation), tourism/recreation, 
cultural and social (Alaska Native access), large-scale infrastructure 
(Knik Arm crossing, highway and bridge retrofitting projects along 
Turnagain Arm), public education/science (environmental education, 
public policy development, and decision-making), national defense (Fort 
Richardson and Elmendorf AFB), and water quality management (waste 
water discharges, municipal treatment facilities, oil and other toxin 
spills).
    We next considered the range of modifications we might recommend 
during consultation on these activities to avoid the destruction or 
adverse modification of Cook Inlet beluga whale critical habitat. A 
draft economic report describes in detail the actions that may be 
affected, the potential range of modifications we might recommend for 
those actions, and the estimate of economic impacts that might result 
from such changes (Entrix, 2009). The report describes the likelihood 
of an ESA section 7 consultation resulting in changes to each type of 
action. This report is available on the NMFS Alaska Region Web site at 
http:// www.akr.noaa.gov/. We are soliciting comments on our analysis 
of impacts and their potential benefits and costs.

General Analytic Approach

    To evaluate potential impacts of designation, we first identified 
activities or actions that may affect Cook Inlet beluga whale critical 
habitat and, therefore, be subject to ESA section 7 consultation. We 
then identified and assessed the costs of the critical habitat 
designation to each of these, as well as any substantial benefits to 
recreation, subsistence uses, education, and the other sectors 
identified above.
    When there were sufficient empirical data and supporting 
information, we used an incremental approach in assessing the economic 
and other impacts of the critical habitat designation. When there was 
insufficient information with which to objectively disentangle impacts 
between those occurring from the listing and those occurring from the 
critical habitat designation, we identified the impacts as co-
extensive. In other words, in those situations, we identified all 
potential costs and benefits resulting from section 7 consultation, 
regardless of whether they are wholly and uniquely attributable to 
``adverse modification'' or whether they result from the ``jeopardy'' 
prohibition of section 7. Next, based upon an extensive national survey 
of U.S. Fish and Wildlife Service (USFWS) section 7 consultations, we 
apportioned the co-extensive impacts in such a way as to isolate only 
those costs attributable to critical habitat designation. (In 2002, 
Industrial Economics, Inc. (IEc.) reviewed the consultation records 
from several U.S. Fish & Wildlife Service field offices across the 
country and analyzed the administrative costs of such consultations, 
based on data from the Federal Government Schedule Rates, Office of 
Personnel Management, 2007. IEc. developed an algorithm to allocate co-
extensive costs between those that

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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

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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