Endangered and Threatened Species: Designation of Critical Habitat for Cook Inlet Beluga Whale, 20180-20214 [2011-8361]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Rules and Regulations]
[Pages 20180-20214]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8361]



[[Page 20179]]

Vol. 76

Monday,

No. 69

April 11, 2011

Part III





Department of Commerce





-----------------------------------------------------------------------



 National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



50 CFR Part 226



Endangered and Threatened Species: Designation of Critical Habitat for 
Cook Inlet Beluga Whale; Final Rule

Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Rules 
and Regulations

[[Page 20180]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 090224232-0457-04]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the National Marine Fisheries Service (NMFS), designate 
critical habitat for the Cook Inlet beluga whale (Delphinapterus 
leucas) distinct population segment (DPS) under the Endangered Species 
Act (ESA). Two areas are designated, comprising 7,800 square kilometers 
(3,013 square miles) of marine habitat. In developing this final rule 
we considered public and peer review comments, as well as economic 
impacts and impacts to national security. We have decided in the final 
rule to exclude the Port of Anchorage (POA) in consideration of 
national security interest. Additionally, consistent with the proposed 
rule, portions of military lands were determined to be ineligible for 
designation as critical habitat. We solicited comments from the public 
on all aspects of the proposed rule, and conducted four public hearings 
on the action. Along with the proposed rule, we published a draft 
economic impacts analysis, entitled ``Draft RIR/4(b)(2) Preparatory 
Assessment/IFRA for the Critical Habitat Designation of Cook Inlet 
Beluga Whale.'' This economic analysis has been completed to support 
the final designation. See ``Final RIR/4(b)(2) Preparatory Assessment/
FRFA for the Critical Habitat Designation of Cook Inlet Beluga Whale'' 
for a discussion of these topics.

DATES: This rule will become effective on May 11, 2011.

ADDRESSES: The final rule, maps, status reviews, and other materials 
supporting this final rule can be found on our Web site at: https://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Brad Smith (907-271-3023), Kaja Brix 
(907-586-7235), or Marta Nammack (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.). On October 22, 2008, we 
published a Final Rule to list the Cook Inlet beluga whale as an 
endangered species (73 FR 62919). At the time of listing, we announced 
our intent to propose critical habitat for the Cook Inlet beluga 
whales. This critical habitat was subsequently proposed on December 2, 
2009 (74 FR 63080). The proposed rule's critical habitat for the Cook 
Inlet beluga whale was determined by considering information received 
in response to our Advance Notice of Proposed Rulemaking, sighting 
reports, satellite telemetry data, The Traditional and Ecological 
Knowledge of Alaska Natives (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 primary constituent elements (PCEs) within certain areas of 
their range. The proposed rule identified ``specific areas'' within the 
geographical area occupied by the Cook Inlet beluga whale to be 
proposed as critical habitat.
    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 was rejected 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 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.
    This final rule includes several small changes to the areas 
proposed as critical habitat and, importantly, excludes under Section 
4(b)(2) the Port of Anchorage (POA) from designated critical habitat 
for reasons relating to national security. We corrected errors within 
the proposed rule's descriptions of the boundaries for this critical 
habitat so that the final rule utilizes the coordinate system of 
degrees, decimal-minutes. We have also changed the sentence structure 
of the PCEs concerning noise and toxins in the final rule to improve 
clarity.
    The total quantifiable economic impact associated with this final 
rule is estimated to be between $157,000 to $472,000 (discounted at 7 
percent) or $187,000 to $571,000 (discounted at 3 percent). While we 
have excluded a small portion of the area originally proposed as 
critical habitat for national security reasons (the POA), that 
exclusion does not affect the economic impact analysis because the 
small size of the area indicates that the potential cost-savings are 
likely nominal (i.e., consultations will continue to occur to ensure 
proposed activities in those areas do not jeopardize the species or 
adversely modify or destroy adjacent areas of critical habitat). 
Additional economic impacts, both costs and benefits, that were not 
amenable to quantification, but nonetheless important to a complete 
evaluation of this action, were identified and analyzed qualitatively. 
Both the quantitative and qualitative economic effects of the final 
rule are presented, in detail, in the Final Regulatory Impact Review/
4(b)(2) Preparatory Assessment/Final Regulatory Flexibility Analysis. 
We promulgate this final rule 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 
an exclusion from designation on that basis alone. Other areas within 
the species' range did not contain the identified physical or 
biological features that are essential

[[Page 20181]]

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.

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 waters of the 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).

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for Cook Inlet beluga whales and supporting documents (74 FR 
63080; December 2, 2009). To facilitate public participation, the 
proposed rule was made available on our regional web page, and comments 
were accepted via standard mail, e-mail, and through the Federal 
eRulemaking portal. In addition to the proposed rule, several draft 
documents supporting the proposal, including an economic report, were 
posted. In response to comments, the original 60-day comment period was 
extended an additional 30 days, ending on March 3, 2010. Public 
hearings were held in Kenai, Soldotna, Wasilla, and Anchorage, Alaska.
    We received 135,463 individual submissions in response to the 
proposed rule (including public testimony during the four hearings). 
This included 134,959 form letter submissions and 504 unique 
submissions. The majority of comments concerned economic and other 
impacts for consideration for exclusions, the regulatory process for 
critical habitat designation, legal issues, essential features or PCEs, 
additions to critical habitat, and biological issues.
    We have considered all public comments, and provide responses to 
all significant issues raised by commenters. We have not responded to 
comments outside the scope of this rulemaking, such as whether NMFS' 
prior decision to list the Cook Inlet beluga whale as endangered was 
proper. We have categorized comments by issue and, where appropriate, 
combined similar comments.

General Comments on Critical Habitat

    Comment 1: In the proposed rule's discussions at 74 FR at 63084, 
NMFS has not listed activities that will deter use of or access to Area 
1 by beluga whales.
    Response: In the referenced paragraph, we simply endeavored to 
provide a description of the habitat values and associations within the 
proposed areas, along with a discussion of why these areas may be 
sensitive or vulnerable to various stressors. Later in the proposed 
rule, we provided a brief description of those activities that may 
adversely modify critical habitat, or that may be affected by the 
designation. See 74 FR at 63089. Examples of activities that may deter 
use or access could include causeways, dams, bridges, or tidal 
generation projects.
    Comment 2: Cook Inlet anadromous fish runs are healthy and 
appropriately protected under existing regulatory mechanisms.
    Response: We recognize and acknowledge that the current management 
structure of the salmon fisheries has generally provided for the 
sustained harvest and productivity of salmon in Cook Inlet. However, it 
should also be noted that there are problems inherent with any 
management system. The size of several king (Chinook) salmon returns in 
2009 and 2010 was substantially below average, resulting in closures of 
sport and commercial fisheries in the Inlet. The Deshka River king 
salmon runs were extremely low in 2008 and 2009, resulting in closures. 
The Susitna River sockeye salmon runs failed to meet minimum escapement 
goals for 5 of 7 years between 2001 and 2007. Sockeye commercial 
harvests for the Northern District of Cook Inlet fell from an average 
of 180,000 fish in the 1980s to an average of 26,000 since 2002. The 
Alaska Department of Fish and Game forecasts Kenai River sockeye runs 
to be below average for 2010, citing management decisions leading to 
over-escapement as a contributing factor.
    Comment 3: The final rule should acknowledge the riparian 
protections under the State's forest practices, as well as other 
regulations that protect water quality and other protections.
    Response: While there exist myriad environmental and conservation 
laws, restrictions, and practices at State and local levels, these are 
not pertinent to this designation unless they concern whether the 
identified essential features of that habitat ``may require special 
management or protection.'' The fact that the State and local 
governments have instituted such measures is some evidence that these 
essential features do in fact require special management.
    Comment 4: NMFS should provide supporting evidence for its 
identification of the tendency for belugas to occur in high 
concentrations, predisposing them to harm from events such as oil 
spills, as reason for designation of Area 1. The statement is 
speculative. This commenter also challenged our evidence that oil 
spills are a threat to beluga whales or predisposes them to harm, that 
these areas are susceptible to oil spills, or that spills are likely to 
occur here.
    Response: We had not proposed this fact to be a ``reason'' for 
designating critical habitat. We disagree this statement is 
speculative, as there are multiple lines of evidence, including NMFS' 
2008 Conservation Plan for Cook Inlet Beluga Whale and many peer 
reviewed studies, that beluga whales occur seasonally in high densities 
within specific areas of the upper Inlet. Our purpose in these 
statements was not to provide an exhaustive assessment or analysis of 
oil spills, but to indicate the ecological attributes of Area 1 to Cook 
Inlet belugas and to recognize the sensitivities imposed by their habit 
of occupying relatively small, enclosed areas for feeding and other 
purposes during the open water months. The occurrence of these whales 
in high densities here not only predisposes them to potential harm from 
hazardous material releases, but also disease outbreaks, harassment, 
poaching, and other factors.
    Comment 5: Additional research is needed to support proper 
management of the Cook Inlet beluga whales including this critical 
habitat designation.
    Response: We agree generally that additional research is needed, 
and we identified in the 2008 Conservation Plan the need to ``improve 
our understanding of the biology of Cook Inlet beluga whales and the 
factors limiting the population's growth.'' See: Conservation Plan for 
the Cook Inlet Beluga Whale (Oct. 2008) at 63. We disagree, however, 
that additional research is needed to support the designation of 
critical habitat. The ESA requires NMFS to designate critical habitat 
concurrently with the listing decision, 16 U.S.C. 1533(a)(3)(A)(i), and 
to base that decision on the ``best scientific data available,'' id., 
section 1533(b)(2). We have used the best scientific data available in 
designating critical habitat

[[Page 20182]]

for the Cook Inlet beluga whale. We are not required to conduct field 
research prior to designating critical habitat.
    Comment 6: NMFS must link its critical habitat determinations to 
credible threats, and must fully explain its rationale for designating 
Area 2 as critical habitat.
    Response: There is no requirement to link designation of critical 
habitat with threats. We are required to base critical habitat 
designations on physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protection, as we have done in this rule. Our 
discussion of potential threats to critical habitat was provided so the 
reader might better understand the proposed designation in context of 
the biology of the Cook Inlet beluga whales and the various stressors 
that may occur in these areas. Such a discussion also assists in the 
description and evaluation of those activities which may adversely 
modify the critical habitat or otherwise be affected by the 
designation. We believe the Proposed Rule presented the best scientific 
data and information available which justify the inclusion of Area 2 as 
critical habitat. We described the known or probable habitat attributes 
of this area, including use for fall and winter feeding, and discussed 
distribution and dive behavior of these whales within the area, which 
also support the feeding and overwintering habitat values here. We 
identified several essential physical and biological features of 
critical habitat for Cook Inlet beluga whales, established that those 
features were found within Area 2, and confirmed that they may require 
special management or protections, as required by the ESA. We agree 
that present knowledge of the habitat characteristics of Area 2 is less 
than that of Area 1, and that it is desirable to gather additional data 
to better understand the habitat needs of beluga whales here. However, 
we do not find that the existing information, nor the discussion and 
analysis of the area within the Proposed Rule, were insufficient. 
Further, none of the commenters provided data or information 
contradicting the data on which the proposed rule relied.

Physical or Biological Features Essential for Conservation (PCEs)

    Comment 7: We received many comments concerning the PCEs, or 
essential features, indicating some confusion and uncertainty regarding 
their function and significance. Others felt that our identification of 
PCEs was flawed because these are not presently impeding the recovery 
of Cook Inlet beluga whales, or that the PCE thresholds are set 
unreasonably. Still others believe that a PCE equates to adverse 
modification or other objectionable standard by which various 
activities and projects would be prohibited.
    Response: The ESA defines critical habitat in terms of essential 
physical or biological features, and Federal regulations require us to 
focus on these features in the designation process. It is not necessary 
that a feature be presently impaired or limiting, only that it provide 
an essential service or function to the conservation of the listed 
species and may require special management considerations or 
protection. Also, a PCE is not meant to describe a threshold condition 
beyond which critical habitat would be adversely modified or destroyed. 
Rather, potential threats to the PCEs will often be the factors 
evaluated in making determinations regarding whether a proposed Federal 
action will adversely modify or destroy critical habitat. For example, 
we believe an essential physical feature to be the unrestricted passage 
and movement of beluga whales among critical habitat sites. A project, 
such as a dam, could potentially isolate parts of the whales' critical 
habitat and prevent movement among the sites. In evaluating the effects 
of such a project under section 7 of the ESA, we would consider whether 
this isolation would impact beluga whales to a degree that critical 
habitat was no longer functional to the conservation of the species. If 
it caused the loss of either of these functional values, we would 
consider this adverse modification. However, the mere fact that the 
project may isolate parts of the critical habitat or prevent movement 
among those sites would not, in itself, constitute adverse modification 
or destruction of critical habitat. Similarly, a project that caused 
whales to abandon critical habitat may not necessarily result in a 
determination of adverse modification or destruction of critical 
habitat, unless such abandonment would preclude the conservation of 
these whales.
    Comment 8: The essential features identified in the proposed rule 
are important for beluga survival, but NMFS has not demonstrated these 
features are limiting the production or recovery of these whales.
    Response: The ESA defines critical habitat in terms of those 
physical or biological features that are essential to the conservation 
of the species and which may require special management considerations 
or protection. The ESA does not define the word ``essential.'' We agree 
with the commenter that the identified features are important for 
beluga conservation, and believe this importance is such that they may 
be considered ``essential.'' We disagree, however, that the features 
must be found to be limiting to the species before they may be 
considered essential. A limiting factor may be described as one that 
controls a system or species (such as air), or one that is present in 
the smallest supply relative to the demands of the system/species 
(perhaps a prey species). In either case, the ESA contains no 
requirement that essential features are restricted to those that may be 
limiting. Our approach will vary to fit the circumstances of a 
particular species.
    Comment 9: The identified PCEs lack specificity (e.g., ``The 
absence of toxins or other agents of a type or amount harmful to beluga 
whales''). NMFS should identify threshold values for all PCEs as it has 
for in-water noise.
    Response: The ESA requires that we premise the designation of 
critical habitat on essential features, and the regulations at 50 CFR 
424.12(b) describe the PCEs as including, but not limited to, roost 
sites, nesting grounds, spawning sites, water quality or quantity, 
tides, and vegetation types. Clearly, these descriptions are general in 
nature and, we believe, far less descriptive than those presented in 
the proposed rule. We relied on the best scientific data available to 
provide as much specificity as possible. None of the commenters have 
provided data allowing us to further refine our description of the 
PCEs. The condition of adverse modification will be determined, in 
part, on whether an activity impairs the functional value of the 
essential features to the point that they cannot provide for the 
conservation of the species. In adding as much description to these 
features as permitted by the best scientific data available (e.g., not 
just ``pollutants,'' but the ``absence of toxins or other agents of a 
type or amount harmful to beluga whales'') it is our intent to avoid 
the situation where any activity that may be associated with one or 
more essential feature would be considered as causing the adverse 
modification or destruction of critical habitat. We have also modified 
the wording of this PCE in the final rule to improve clarity.
    Comment 10: NMFS needs to present data to support its explanation 
for equating ``mudflats'' with ``shallow and nearshore waters proximate 
to certain tributary streams.'' NMFS should defend its rationale for 
delimiting this feature to waters within the 30-foot (9.1 m) depth 
contour. NMFS has arbitrarily expanded this PCE beyond that described 
in Goetz et al. (2007).

[[Page 20183]]

    Response: Relying on the best scientific data available, the 
proposed rule explains the habitat attributes and importance of 
nearshore areas to Cook Inlet beluga whales. These whales selectively 
occupy these areas during the ice-free months, and may display year-
round association with the nearshore zones of Cook Inlet. We believe 
this affinity is due to feeding strategies and perhaps breeding, 
calving, molting, and predator avoidance. Research on beluga whales 
elsewhere has found beluga distribution may be associated with depth 
and bottom structure, as well as prey abundance. Using these data, we 
next considered the results of Goetz et al. (2007) which found 
significant associations between summer distributions of Cook Inlet 
belugas, mudflats, and flow accumulation. The Goetz et al. (2007) paper 
is important in that it provides the first spatial representation of 
this habitat attribute, and supports the observations of other research 
as well as the TEK of Alaskan Natives. The paper does not incorporate 
data on other factors potentially relevant to beluga distribution in 
Cook Inlet such as water temperatures, turbidities, salinities, or the 
fish species and strength of fish runs for these waters. That paper 
states ``The occurrence of beluga whales near stream mouths may reflect 
a feeding strategy whereby belugas take advantage of highly-
concentrated fish runs in shallow channels where they are easy to 
catch'', and found the majority of sightings were within 11.5 km of 
medium flow accumulation inlets. The Goetz et al. (2007) paper, 
however, is not the sole scientific basis for our determination, nor is 
it necessarily the most significant. It is clear that many of the areas 
identified as in the Goetz et al. (2007) paper as ``mudflats,'' are 
rarely associated with beluga sightings. In reviewing the best 
scientific data available, we found that whereas the Goetz et al. 
(2007) paper's use of ``mudflats'' implies a condition of the seafloor 
material, this feature is best described by its tidal exposure. 
Therefore, in identifying the PCE, we used the qualifier of waters less 
than 30 feet (9.1 m) in depth to clarify what was described as 
``mudflats'' by Goetz et al. (2007). We also felt that, while this 
feature covers a range of over 7 miles (11.5 km) in which most whales 
have been found, a radial distance of 5 miles (8.0 km) from the high 
and medium flow distribution inlets is more descriptive of the actual 
distribution of these whales and the essential feature, in 
consideration of the best aerial and satellite data available.
    Comment 11: NMFS relied too heavily on Goetz et al. (2007), a paper 
with serious flaws. NMFS should have incorporated fish runs into its 
models, and has arbitrarily ignored this important element.
    Response: We relied on the best scientific data and information 
available, including models such as the one developed by Goetz et al. 
(2007), in preparing the proposed rule. We did not develop new models 
as part of the rulemaking, and the ESA does not require us to do so or 
to conduct field research. Rather, we are required to designate 
critical habitat on the basis of the best scientific data available. 
Goetz et al. (2007)'s research and paper were not conducted to define 
critical habitat. Goetz et al. (2007) exists as one of several sources 
we considered during this rulemaking. Both NMFS and the paper itself 
recognize the paper's limitations from not including various physical 
and biological variants, most notably anadromous fish species and run 
strengths. Despite this information, the list of high and medium flow 
accumulation waters reported in the paper indicate that all such rivers 
are anadromous fish waters and that flow accumulation has some 
association, and may be a reasonable proxy, for anadromous fish. The 
inclusion of fish species or numbers of anadromous fish utilizing these 
waters would not change the list, but could only add another 
descriptive layer to this essential feature. The utility of such 
additional description is unclear and probably non-existent.
    Comment 12: NMFS has incorrectly used Goetz et al. (2007) to 
identify PCEs within Area 2, particularly for winter periods for which 
this paper did not include data. Applying this model to winter has 
resulted in NMFS incorrectly identifying habitats that are impossible 
or highly improbable for belugas to inhabit.
    Response: While we included the Goetz et al. (2007) paper in our 
consideration of scientific research and literature related to critical 
habitat and adopted its conclusions as representative and supportive of 
our proposed designation, we are not necessarily in agreement with 
every statement made within the paper. This is particularly true for 
the paper's assertion that sea ice in winter makes inhabiting shallow 
waters too hazardous for marine mammals. While the paper does not 
define what depths were considered to be ``shallow,'' there is ample 
evidence that beluga whales occur in such areas during winter. Indeed, 
beluga whales are variously described as ``ice associated'' or ``ice 
dependent'' species, and we know of no beluga population that is not 
found within areas subject to seasonal ice formation. Satellite tagging 
data (see NMFS' 2008 NMFS Conservation Plan for the Cook Inlet Beluga 
Whale) from Cook Inlet beluga whales indicates that these whales are 
found in nearshore areas during winter; in fact these data show whales 
occupying the heads of Turnagain and Knik Arms during periods in which 
maximum ice coverage would be expected.
    While Goetz et al. (2007) did not include (or have access to) 
distribution data for winter months, Goetz et al. (2007) presents other 
information demonstrating the importance of nearshore areas proximate 
to anadromous fish streams as an essential habitat attribute. This 
attribute within Area 2 exists during the late summer and fall months, 
as whales move west and south transitioning from summer habitat in the 
upper Inlet to winter habitats. During this time, we believe the whales 
take advantage of the late coho runs along the west side of Cook Inlet. 
This behavior occurs well before seasonal ice formation (sea ice is 
much less prevalent in the lower Inlet), and we believe it is 
reasonable to assume the physical qualities of nearshore feeding 
habitat near salmon streams in July are similar to those for nearshore 
feeding habitat near salmon streams in October. The 2008 NMFS 
Conservation Plan for the Cook Inlet Beluga Whale includes sighting 
data of beluga whales in the lower Inlet, and suggests these areas were 
important habitat sites when the beluga whales were more abundant.
    Finally, we emphasize the critical habitat boundaries are not drawn 
around the essential features/PCEs. Rather, these features delineate 
critical habitat from non-critical habitat. The best scientific data 
available indicates that the critical habitat area referred to as Area 
2 contains anywhere from one to all of the identified physical or 
biological features essential to the whales' conservation.
    Comment 13: NMFS should list all the waters it considers to be high 
and medium flow accumulation rivers for purposes of describing the 
PCEs.
    Response: We have included this list on our Regional website (see 
ADDRESSES above).
    Comment 14: NMFS should include pink salmon, Pacific herring, and 
long-finned smelt as PCEs.
    Response: We identified important prey species as essential 
biological features or PCEs based on the results of research on fatty 
acid signatures and stable isotope analysis from beluga whale tissue, 
stomach samples from

[[Page 20184]]

Cook Inlet belugas, and traditional knowledge. We did not find the 
proposed species were well-supported by these sources and cannot 
determine that they are essential based on current knowledge.
    Comment 15: NMFS' proposed PCE ``The absence of toxins or other 
agents of a type or amount harmful to beluga whales'' is too vague. 
There are readily available data defining the types and amounts of 
contaminants that would be harmful to beluga whales, but NMFS has not 
used this information.
    Response: Please see our earlier response to comment 9 
regarding specificity within the definitions of essential features and 
PCEs. We relied on the best scientific data available in designating 
critical habitat for the Cook Inlet beluga whale. We are not aware of 
any existing data that would allow for greater specificity concerning 
harmful contaminant levels in beluga whales, and none of the commenters 
provided any or indicated a specific source of such data. We recently 
contracted for an assessment of risks to beluga whales from chemical 
exposures (URS, 2010), that found ``reliable and quantitative 
information that related measured body burdens to observed adverse 
effects is lacking, especially within a dose-response context.'' 
Information relating to the presence of persistent organics, measured 
primarily in the whales' blubber, exists, and there are some studies on 
the presence of methylmercury and other metals, but very little or no 
toxicity information is available for beluga whales and other marine 
mammals regarding the majority of harmful chemicals. The assessment 
report goes on to state that, even for those few studies in which some 
threshold values are presented for other species, such studies are 
fraught with uncertainty and should be viewed only as a preliminary 
comparison to determine whether further evaluation is warranted.
    We believe that, had we employed threshold values of chemicals 
which arguably cause ``harm'' to other species, we would have created 
an assessment methodology for adverse modification of critical habitat 
that could be both insufficiently protective of these whales and 
unnecessarily restrictive. The toxin PCE as promulgated provides the 
best level of specificity possible in light of the best scientific data 
available. This PCE does not simply include all pollutants; it includes 
only those of a type and quantity/concentration harmful to beluga 
whales. Moreover, it is important to note that the introduction of any 
pollutants that are harmful to beluga whales would require the 
evaluation of the effect of such pollutants on the PCE, but it would 
not necessarily equate to adverse modification. We would evaluate the 
proposal by considering the implications of the harmful pollutants to 
the PCEs and to the conservation of Cook Inlet beluga whales.
    Comment 16: Unrestricted passage between habitat areas is 
consistent with the knowledge of the spatial and temporal dynamics of 
the primary beluga prey species, yet NMFS has shown no evidence that 
passage is being restricted to the extent of limiting productivity or 
recovery.
    Response: Please refer to our earlier response to comment 
7 concerning limiting aspects of habitat and their relation to 
essential features and PCEs. We agree that no evidence currently exists 
indicating that passage among critical habitat areas is impeded to the 
extent of preventing recovery. The validity of this condition as a PCE 
is not dependent on whether it is limiting to the population. The 
Conservation Plan includes discussion of various threats to these 
whales, many of which could impede access among critical habitat sites. 
An action that would result in restricted passage would not necessarily 
result in a finding of adverse modification. Under section 7 of the 
ESA, we will evaluate a proposed Federal action's potential to destroy 
or adversely modify critical habitat by considering the implications of 
any restriction on the movement among critical habitat sites to the 
conservation of Cook Inlet beluga whales.
    Comment 17: NMFS's proposed PCE ``The absence of in-water noise at 
levels resulting in the abandonment of habitat by Cook Inlet whales'' 
is too vague. NMFS should provide an objective, measurable noise level 
in the definition of this PCE.
    Response: We developed each PCE based on the best scientific data 
available. Because empirical data exist to help us understand the noise 
levels at which beluga whales may react behaviorally or become injured, 
it is reasonable to assume quantified standards could be developed in 
the future for this PCE. Existing data, however, are based on 
relatively few animals held in captivity and the qualitative results of 
various field observations and research. We currently recognize in-
water noise exceeding 120 dB re 1 [mu]Pa as the threshold for 
harassment of marine mammals presented with a continuous noise source, 
and 160 dB re 1 [mu]Pa for impulsive noise. However, ambient 
(background) in-water noise levels in lower Knik Arm presently exceed 
120 dB, and we felt it unnecessarily restrictive to describe this 
standard as a PCE. Similarly, the 160 dB threshold relates to 
harassment. We do not have a standard value for the level of noise 
above which beluga whales may permanently abandon habitat. From 
research and monitoring of in-water work in Cook Inlet, it is apparent 
that beluga whales have not abandoned habitat areas due to temporary 
exposures to noise at this level. Therefore, this numeric standard may 
also be too restrictive. There exists considerable variability in the 
reaction of whales to noise, depending on the nature of the noise, life 
history, behavior, sex, context, tolerance, and adaptation. The science 
of marine mammal acoustics is very complex and made more difficult 
within the dynamic setting of Cook Inlet. As a result, we can only 
assign a qualitative standard to this PCE unless and until data become 
available allowing us to assign a quantitative standard.
    Comment 18: NMFS should describe the PCE addressing in-water noise 
as ``the absence of in-water noise that results in adverse impacts to 
the species' survival and recovery.'' The commenter points out that 
noise below levels that may cause whales to abandon habitat areas could 
still have severe impacts on these animals.
    Response: The commenter's proposed PCE is not that functionally 
different from the one proposed in one important respect. When we 
evaluate a Federal action under section 7 of the ESA, we will consider 
whether the action will introduce noise that will result in the 
abandonment of critical habitat and whether such abandonment will, in 
turn, affect the whales' conservation. We will also consider whether 
the noise would affect the whales' survival because section 7 directs 
Federal agencies to ensure that their actions do not (a) result in the 
destruction or adverse modification of critical habitat or (b) 
jeopardize the continued existence of the species. The commenter's 
proposed PCE combines these two standards (and conflates them, a 
formulation which the Ninth Circuit struck down in Gifford Pinchot Task 
Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004)).
    Comment 19: The PCE concerning noise should be re-worded to reduce 
the noise levels permitted to 120 dB or lower, reduce the duration of 
allowable noise, and reduce the frequency of anthropogenic noise.
    Response: The identified essential features or PCEs are not 
intended to be limitations or stipulations. They describe various 
features of the

[[Page 20185]]

environment that we consider essential to the conservation of these 
whales. We do not believe in-water noise levels below 120 dB re 1 
[mu]Pa are necessary to conserve these whales in all cases. In fact, 
ambient noise in areas in which these whales occur, such as lower Knik 
Arm, often exceeds 120 dB. Similarly, behavioral reaction and other 
consequences of noise exposure (duration and frequency) are difficult 
to predict. For this reason, we describe this PCE in terms of its 
effect (abandonment of habitat) rather than a finite quantity or level.
    Comment 20: NMFS fails to identify the existing empirical data, or 
explain the science and rationale used in establishing the noise PCE, 
and must provide this information along with an additional public 
comment period.
    Response: See previous response. The proposed rule stated that 
empirical data exist on the reaction of beluga whales to in-water noise 
for harassment and injury, but are lacking regarding reactions such as 
avoiding certain areas. The NMFS' 2008 Conservation Plan (pp. 58-60, 
66-67) provides a detailed description of the issue of noise and Cook 
Inlet belugas, and includes references to applicable research and 
traditional knowledge accounts which support the proposed rule's 
assessment of the importance of sound to beluga whales.
    Comment 21: NMFS needs to acknowledge that beluga whales have co-
existed with anthropogenic noise in Cook Inlet for decades and that 
there is no information or data to indicate noise is a threat or 
contributing factor to their abundance.
    Response: Our discussion on the effects of noise in the proposed 
rule is consistent with the 2008 Conservation Plan, which identified 
noise as a potential threat. That plan presents several reasons why 
noise may be considered a threat, including the facts that noise is 
known to cause injury or behavioral changes to beluga whales, and that 
TEK observations associate diminished presence of belugas with in-water 
noise. The commenter is correct in stating that no data currently exist 
to place in-water noise as a contributing factor in the decline of the 
Cook Inlet belugas.
    Comment 22: NMFS needs to provide further specificity and 
thresholds in its description of the PCEs for this critical habitat.
    Response: As discussed above, we defined each PCE as specifically 
as we could, in light of the best scientific data available. Specific, 
quantitative threshold values would be useful in the formulation of any 
PCE (e.g., a PCE is gravel between 3.0cm and 7.0cm in diameter, as 
opposed to spawning material). We are not aware, and none of the 
commenters provided sources, of any existing data that would allow for 
greater specificity in the formation of the PCEs for the Cook Inlet 
beluga whales than that which we used. The ESA does not require us to 
conduct field research to obtain such data. In light of the time lines 
for the designation of critical habitat, such research was not 
feasible.
    Comment 23: NMFS has taken a simplistic approach to designating 
critical habitat by drawing a line around the primary, currently 
occupied habitat. NMFS should develop a more discrete approach based on 
the actual presence of PCEs.
    Response: The critical habitat identified in the proposed rule was 
not developed by drawing lines around the Cook Inlet beluga whales' 
currently occupied habitat. To the contrary, large portions of the 
occupied habitat were not included with the designation because we 
concluded that those areas do not contain features essential to the 
Cook Inlet beluga whales' conservation which may require special 
management considerations or protection. We determined the critical 
habitat boundaries by confirming the presence of one or more of the 
identified PCEs/essential features within the critical habitat area, as 
required by the ESA. We are not required to designate as critical 
habitat all areas in which a PCE may occur, only that those critical 
habitat areas contain one or more of the PCEs.
    Comment 24: The presence of the identified PCEs is not uniform 
throughout Cook Inlet, and NMFS should identify those specific areas 
that actually contain the important habitat features as critical 
habitat, rather than the areas in their entirety.
    Response: We included in the designation of critical habitat only 
those critical habitat areas that contain one or more of the PCEs. The 
distribution of the identified PCEs is not uniform. However, we believe 
the ESA provides some latitude to the designating agency here. The 
implementing regulations at 50 CFR 424.12 discuss the criteria for 
designating critical habitat. Part 424.12(d) states that ``When several 
habitats, each satisfying the requirements for designation as critical 
habitat, are located in proximity to one another, an inclusive area may 
be designated as critical habitat.'' Many of the identified PCEs occur 
throughout Cook Inlet and the proposed critical habitat. Other PCEs, 
such as shallow areas near median and high flow waters that may be more 
discretely distributed, are also so numerous as to be nearly a 
continuous feature. It simply would not be practical or effective in 
the conservation of the Cook Inlet beluga whale to designate its 
critical habitat by circumscribing discrete, individual areas around 
the PCEs.
    Comment 25: The list of PCEs NMFS has identified implies other 
elements are not necessary for the conservation and recovery of Cook 
Inlet beluga whales, leaving important gaps that are critical to these 
whales. NMFS should include as a PCE waters deeper than 30 feet (9.1m) 
in depth, or demonstrate these are not ``essential.''
    Response: While we acknowledge beluga whales are distributed 
throughout the Inlet, we believe discrete habitat areas exist that are, 
in fact, ``critical'' in the sense that they meet the ESA definition 
and provide an essential feature (e.g., feeding or calving sites) not 
necessarily found throughout the occupied range of this species/DPS. 
Further, scientific data, surveys, and TEK provide support for the 
identification of such discrete areas, but data are lacking which would 
support the inclusion of all waters of Cook Inlet. The addition of a 
PCE of waters deeper than 30 feet (9.1m) would likely not result in the 
inclusion of any additional areas as critical habitat; rather, it would 
merely confirm the designation of the existing areas. Future revisions 
to this critical habitat may be made as new scientific data become 
available that may alter the list of PCEs or the boundaries of this 
critical habitat.
    Comment 26: NMFS has not provided sufficient rationale to support 
designation of critical habitat in the nearshore area along the west 
coast of the lower Inlet nor Kachemak Bay. NMFS should only designate 
those areas along the west side of the Inlet and in Kachemak Bay that 
actually contain the habitat features important for belugas.
    Response: We disagree. The west side of the Inlet and Kachemak Bay 
contain one or more of the identified PCEs, and the habitat value and 
importance of Area 2, which includes these areas, are described in the 
rule. The offshore boundary for Area 2 of 2 nautical miles (3.2km) 
reflects the data gathered in Goetz et al. (2007), which found the 
majority of whale locations to be within 2.7 km of mudflats and 11.5 km 
of medium flow rivers. While the 11.5 km zone around medium flow rivers 
would argue for an offset similar to that used in the PCE to describe 
nearshore waters proximate to certain anadromous waters (5 miles, or 
8km), we felt that a distance of 2 nautical miles (3.7 km) was more 
reflective of the actual habitat use based upon the Goetz et al. (2007) 
model,

[[Page 20186]]

expertise and observations of NMFS researchers, and the reports and 
observations of whales in this area by the Alaska Department of Fish 
and Game, National Park Service, and private parties. Please note also 
that the 5-mile (8km) distance around these (high and medium flow) 
anadromous waters describes the PCE, and not the boundary of the 
critical habitat.
    Comment 27: There are discrepancies between the depiction and 
boundaries of critical habitat within the proposed rule, in that there 
are differing definitions of Areas 1 and 2 in different sections. The 
map accompanying the rule was not at sufficient resolution to be 
useful.
    Response: The proposed rule contained several discrepancies in the 
coordinates and mapping conventions used to describe the boundaries of 
the critical habitat. Corrections have been made within the final rule. 
A higher resolution map of this critical habitat will be added to our 
regional Web site at https://www.fakr.noaa.gov.
    Comment 28: NMFS' statement that ``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'' is objectionable. There is no evidence that 
supports a lack of effectiveness of any of the management regimes in 
place in Cook Inlet or that any management or regulatory gap 
contributed to the endangered listing of Cook Inlet beluga whales, or 
limits its recovery.
    Response: The quoted statement does not assert that the lack of 
effective management in Cook Inlet contributed to the whale's listing 
or limits its recovery. As explained in the proposed rule, the ESA 
defines critical habitat as areas on which are found those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protection. For 
each essential feature we identified, we determined that it may require 
special management considerations or protection. One of the reasons for 
this finding is the lack of any existing laws, regulations, or 
practices that provide for the management or protection of these 
features for the conservation of Cook Inlet beluga whales. It is 
therefore foreseeable, if not likely, that through the ESA section 7 
consultation process, we will offer recommendations to protect the 
essential features, which would otherwise remain without such 
protection, in order to ensure the conservation of the beluga whale. We 
agree that existing laws and regulations provide some benefit to these 
whales and to their conservation. We disagree with the statement that 
the endangered status of these whales is unrelated to a lack of 
effective management. In fact, we believe much of the decline in this 
DPS is attributable to unregulated subsistence harvest practices prior 
to regulation and management of these hunts.
    Comment 29: Those areas that do not require special management 
consideration or protections are not critical habitat and are not to be 
designated as such under the ESA. Existing state and Federal 
environmental management and regulatory regimes already protect habitat 
for beluga whales, justifying a more narrow identification of areas as 
critical habitat.
    Response: We disagree. The definition of critical habitat (16 
U.S.C. 1532(5)(A)) requires that the physical or biological essential 
features may require special management considerations or protection, 
rather than that the area require such protections. Any area may be 
designated as critical habitat provided it contains one or more of 
these features, and provided that those features may require special 
management or protection.
    Comment 30: NMFS unjustifiably disregarded comments made during 
proposed rulemaking identifying the many existing refuges, sanctuaries, 
state critical habitat areas, legal protections, and mitigative 
requirements that provide protection to beluga whales and their 
habitat.
    Response: We recognize that many conservation and environmental 
actions occur through the efforts of the State of Alaska, local 
governments, and private concerns. These all contribute to a 
conservation ethic, undoubtedly benefit the Cook Inlet region 
environment, and can be beneficial to Cook Inlet beluga whales and 
their habitat. The ESA provides that, when considering a species for 
listing as a threatened or endangered species, consideration be given 
to efforts by any State, or any political subdivision of a state, to 
protect such species. Generally, a species that would otherwise qualify 
for listing may be excluded from listing if there are formalized 
conservation efforts that are sufficiently certain to be implemented 
and effective so as to have contributed to the elimination or adequate 
reduction of one or more threats to the species identified through a 
threats analysis conducted pursuant to section 4(a)(1) of the ESA. 
However, no such provision exists for the designation of critical 
habitat. If such provisions existed, it would still be difficult to 
demonstrate they were effective in providing for the conservation of 
the Cook Inlet beluga whales, as many of these efforts were in place 
during the periods in which these whales experienced significant 
declines, leading to the 2008 listing.
    The ESA allows for critical habitat not to be designated if such 
designation would not benefit the species. Congress intended, however, 
that in most situations NMFS will designate critical habitat at the 
same time that a species is listed as either endangered or threatened. 
It is only in rare circumstances where the specification of critical 
habitat concurrently with the listing would not be beneficial to the 
species. See H.R. Rep. No. 95-1625 at 17 (1978), reprinted in 1978 
U.S.C.C.A.N. 9453, 9467. In this instance, we have determined that the 
designation of critical habitat for the Cook Inlet beluga whale would 
be beneficial to the species by providing specific protections against 
Federal actions that would otherwise destroy or adversely modify that 
habitat. We also identify other benefits, as discussed in the following 
comment.
    Comment 31: Contrary to statements in the Proposed Rule, section 7 
consultations are not a benefit accruing from the action, but will only 
add additional layers of administrative process without additional 
effective protections for beluga whales or their habitat.
    Response: As our analysis of economic impacts from the proposed 
designation indicates, many, if not most, of the future consultations 
on Federal actions pursuant to section 7 of the ESA would otherwise be 
required because of section 7's requirement that Federal agencies not 
take actions that jeopardize the continued existence of the species 
(the jeopardy standard). However, the characterization of this 
designation as an additional layer of process ignores the tangible 
benefits that will accrue from it.
    The designation of critical habitat and identification of essential 
physical and biological features will provide procedural and 
substantive protections, thereby promoting the conservation of the Cook 
Inlet beluga whale. Procedurally, the designation of critical habitat 
will focus future consultations on key habitat attributes and avoid 
unnecessary attention to other, non-essential habitat features. 
Designation of critical habitat will also provide clarity to the 
process by alerting Federal agencies to the specific areas and features 
that should be considered and addressed during these consultations. The 
designation also educates the public as well as State and local

[[Page 20187]]

governments, and affords them the opportunity to participate in the 
designation. Substantively, the designation of critical habitat for the 
Cook Inlet beluga whale establishes a uniform protection plan prior to 
consultation. In the absence of such designation, the determination of 
the importance of the whale's environment would be made piecemeal.
    Comment 32: Education and outreach are not justifiable benefits 
accruing from the proposed designation. In fact, there is concern that 
this designation will result in a backlash that will undermine 
conservation efforts generally. NMFS should provide the references for 
statements regarding the benefits of critical habitat designation as 
described in the proposed rule, otherwise the list is speculative and 
should be removed from the final rule.
    Response: Education and outreach are qualitative benefits of 
designation. It is almost certain, however, that the process to date 
has greatly added to the knowledge of Cook Inlet beluga whales and 
their critical habitat needs within Southcentral Alaska, and probably 
extending to much larger geographical and societal divisions. We do not 
believe such education and awareness has been or will be destructive or 
undermine conservation efforts. Moreover, courts have recognized the 
education and outreach benefits accruing from the designation of 
critical habitat. See, e.g., Conservation Council for Hawaii v. 
Babbitt, 2 F.Supp.2d 1280 (D. Haw. 1998).
    Comment 33: One commenter strongly objects to the stated benefit of 
reduced levels of pollution in Cook Inlet, with associated benefits 
accruing to a suite of ecological services, culminating in an improved 
quality of life (in the Cook Inlet region). This statement 
mischaracterizes Cook Inlet, whose waters offer pristine habitat for 
beluga whales.
    Response: We agree that water quality within Cook Inlet is 
generally high, and that approximately 98 per cent of the shoreline 
remains undeveloped. However, any characterization of these waters as 
pristine might be tempered by the facts that the largest communities in 
the State exist along its shore, municipal wastes and other effluents 
from these communities are often discharged into the receiving waters 
of Cook Inlet, numerous fish plants discharge processing wastes into 
the Inlet, minor and major fuel spills have occurred here, and offshore 
oil platforms regularly discharge drilling muds, cuttings, and produced 
waters into the Inlet. We believe it is reasonable to project 
improvements in pollution as a benefit of critical habitat designation 
even though a portion of such benefits may be realized in the future.
    Comment 34: NMFS should adopt minimum escapement goals for eulachon 
and salmon. A minimum density of prey is relevant to the intent of 
designating critical habitat.
    Response: While the importance of these prey species to Cook Inlet 
belugas is supported by stomach analysis of stranded and harvested 
whales, TEK, fatty acids, and stable isotope analysis, we do not 
believe sufficient information exists to determine the energetic 
requirements of Cook Inlet belugas or to adopt escapement levels, and 
any attempt to do so would be speculative. We anticipate future 
research will add to our knowledge of the energetic requirements of 
these whales and allow some insight into prey selectivity, caloric 
requirements, feeding behavior and speciation, and run strength within 
tributary waters that may support a determination of prey requirements. 
At this time we have no information to suggest prey availability is or 
has been a factor in the decline or is in need of improvement to 
promote the recovery of the Cook Inlet beluga whale. We hope to 
continue to work with the State of Alaska to ensure these whales are 
considered in fish management planning for Cook Inlet.
    Comment 35: NMFS should delete the term ``absence of toxins and 
other agents'' in its PCE concerning toxins, which implies that a 
pristine environment is essential to the conservation of these whales. 
NMFS should continue to rely on State and Federal water quality 
standards until specific agents are identified to be detrimental to 
beluga whales.
    Response: We qualify these terms in the definition of the PCE with 
the clause ``of a type or amount harmful to beluga whales,'' which we 
believe avoids creating the implication described by the commenter. The 
commenter correctly points out that the current exposure of these 
whales to various pollutants and tissue analysis have not indicated 
that Cook Inlet beluga whales carry significant body burdens of many 
common contaminants and toxins. But beluga whales are top level 
predators with potential to bio-accumulate toxic substances. Further, 
the juxtaposition of high densities of Cook Inlet belugas and Alaska's 
most populated and industrialized region raises a concern for the 
introduction of pollutants into the Inlet. We believe a PCE that 
addresses the essential feature of water quality is appropriate here, 
and the qualification we added to it will avoid unnecessary 
restrictions on most approved discharges. Existing water quality 
standards may or may not be protective of marine mammals, including 
small whales. Also, many pollutants with the potential to harm these 
animals are not currently regulated or addressed under these standards.
    Comment 36: The PCE for toxins should reflect concern for the type 
and amount of a constituent, rather than for a type or amount. One 
commenter suggests re-wording this PCE as ``The absence of non-
naturally-occurring toxins or other agents of a type and amount that 
would kill or injure Cook Inlet beluga whales or cause prolonged 
abandonment of their critical habitat areas,'' providing the rationale 
that these changes would clarify that Federal agencies are not required 
to eliminate naturally-occurring harmful substances and replace the 
vague standard of harm with the effects-based language from PCE number 
5 (in-water noise).
    Response: While many compounds and agents may be of a type harmful 
to animals, the actual threat or significance of any exposure is also 
dependent on their concentrations. We agree with the comment and have 
changed the wording of the final rule to reflect this. We disagree with 
the suggested changes to the remainder of this PCE because these 
qualities or thresholds are more appropriate in defining the condition 
of this PCE that equates to adverse modification of the critical 
habitat. That is, while the PCE is generally defined as waters free of 
harmful substances, adverse modification will occur when an action 
results in the addition of substances of a type and amount that causes 
mortality or other consequences impeding the conservation of the whale. 
Also, some substances occur naturally in the environment (e.g., 
mercury), but are also a concern regarding anthropogenic introduction 
into Cook Inlet. Therefore, we chose not to exclude naturally occurring 
toxins or other agents, as suggested.
    Comment 37: The PCE for in-water noise should be changed to read 
``The absence of in-water noise that results in adverse impacts to the 
species survival and recovery'' because many noise impacts may 
adversely affect the species but not result in abandonment of habitat.
    Response: The commenter's proposed language attempts to set the 
threshold for this essential feature or PCE at a level defining adverse 
modification or destruction of the critical habitat. We disagree with 
this approach. A PCE describes an essential feature, such as water 
within a certain temperature range. During a section 7 consultation,

[[Page 20188]]

we would consider the effects of an action with regard to this PCE and 
evaluate if those changes would appreciably reduce the conservation 
value for the species. Defining the PCE to equate to adverse 
modification would be circular and by-pass this analytical approach. 
Moreover, the definition espoused by the commenter conflates the 
standards for jeopardy and adverse modification, a formulation the 
Ninth Circuit struck down in Gifford Pinchot Task Force v. U.S. Fish & 
Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004). We have modified the 
description of this PCE in the final rule to improve clarity.
    Comment 38: The PCE for in-water noise should be removed. This 
finding is inconsistent with that made in the final rule to designate 
critical habitat for the southern resident killer whale (71 FR 69054; 
November 29, 2006) which found that noise is an effect to the animal 
and not to its habitat.
    Response: In our final rule to designate critical habitat for the 
southern resident killer whale, we lacked sufficient information to 
include noise as a PCE, but noted that we would continue to consider 
sound in any future revisions of that critical habitat (71 FR 69054; 
November 29, 2006). We consider in-water noise to be both an effect on 
these endangered whales and a habitat attribute. It is clear that noise 
has the potential to alter behavior in whales in a manner that may have 
biological significance (i.e., to result in a ``take'' by harassment or 
injury). We find that noise (or its absence) is also an important 
characteristic of the habitat within which these whales exist, and is 
appropriately identified here as an essential feature. We also agree 
with our previous rule for the southern resident killer whale that 
current scientific information is not sufficient to quantify the noise 
levels that may alter habitat to the extent that whales would abandon 
such areas. However, neither the ESA nor regulations require 
quantifiable thresholds to be known before any habitat attribute may be 
considered an essential feature. Rather, the ESA requires that we 
designate critical habitat based on the best scientific data available, 
which we have done. Indeed, the regulations (50 CFR 424.12) describe 
essential physical and biological features to include generically 
``Food, water, air, light, minerals'' without further quantification.
    Comment 39: The proposed ``noise'' PCE does not define or explain 
what constitutes ``abandonment of habitat'' and ``continuous noise.''
    Response: We use these terms with their ordinary meaning in mind 
and offer no specialized descriptions for these terms. Our intent is to 
avoid having the mere presence of noise, or even noise which might 
cause harassment, be deemed adverse modification. While we do not 
believe it is ``essential'' that the acoustic environment of these 
whales be free of noise, even noise at levels which might harass 
whales, we consider it essential for the whales' conservation that they 
are not presented with noise that may preclude their use of key habitat 
areas, particularly those that are important for feeding, bree