Listing Endangered or Threatened Species; 12-Month Finding on a Petition To Revise the Critical Habitat Designation for the Southern Resident Killer Whale Distinct Population Segment, 9682-9687 [2015-03378]

Download as PDF 9682 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules (b) Replacement Standards guide agencies to consider an effective replacement strategy for Government personal property items. For example, an agency may designate a type of item to be replaced every three years, based upon the expected trends of reliability, maintenance costs, and usefulness as the item ages. However, actual replacement decisions should also consider the condition of the item. (c) Agencies should consider voluntary consensus standards, industry standards, and Federal best-practices in developing Use and Replacement Standards. Factors to consider when choosing standards to use are outlined in OMB Circular A–119, ‘‘Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.’’ Voluntary consensus standards must be used in lieu of Government-unique standards unless such use would be inconsistent with applicable law or regulation, or be otherwise impractical. [FR Doc. 2015–03484 Filed 2–23–15; 8:45 am] BILLING CODE 6820–14–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 140407321–5096–02] RIN 0648–XD233 Listing Endangered or Threatened Species; 12-Month Finding on a Petition To Revise the Critical Habitat Designation for the Southern Resident Killer Whale Distinct Population Segment National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of 12-month finding. AGENCY: We, the National Marine Fisheries Service (NMFS), announce a 12-month finding on a petition from the Center for Biological Diversity to revise the critical habitat designation for the Southern Resident killer whale (Orcinus orca) Distinct Population Segment (DPS) under the Endangered Species Act (ESA). In November 2006 we issued a final rule designating approximately 2,560 square miles (6,630 square km) of inland waters of Washington State as critical habitat for the Southern Resident killer whale DPS. The January 2014 petition requests we revise this tkelley on DSK3SPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:04 Feb 23, 2015 Jkt 235001 critical habitat to include Pacific Ocean marine waters along the West Coast of the United States that constitute essential foraging and wintering areas for Southern Resident killer whales. Additionally, the petition requests that we adopt as a primary constituent element (PCE), for both currently designated critical habitat and the proposed revised critical habitat, protective in-water sound levels. The ESA defines a process for responding to petitions to revise critical habitat. We have reviewed the public comments and best available information on Southern Resident killer whale habitat use and as the next step in the response to the petition process defined in the ESA, this 12-month determination describes how we intend to proceed with the requested revision. DATES: The finding announced in this document was made on February 24, 2015. ADDRESSES: Copies of the petition, 90day finding, and the list of references are available online at: http:// www.westcoast.fisheries.noaa.gov/ protected_species/marine_mammals/ killer_whale/esa_status.html Requests for copies of this determination should be addressed to: NMFS, West Coast Region, Protected Resources Division, 7600 Sand Point Way NE., Seattle, WA 98115. Attention—Lynne Barre, Seattle Branch Chief. FOR FURTHER INFORMATION CONTACT: Lynne Barre, NMFS West Coast Region, (206) 526–4745; or Dwayne Meadows, NMFS Office of Protected Resources, (301) 427–8403. SUPPLEMENTARY INFORMATION: Background On January 21, 2014, we received a petition from the Center for Biological Diversity requesting revisions to the critical habitat designation for the Southern Resident killer whale DPS. That requested revision sets in motion a process for agency response defined in the ESA and explained below. The ESA defines critical habitat under section 3(5)(A) as: ‘‘(i) the specific areas within the geographical area currently 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.’’ PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 Joint NMFS-Fish and Wildlife Service (FWS) regulations for designating critical habitat at 50 CFR 424.12(b) state that the agencies ‘‘shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection (hereafter also referred to as ‘Essential Features’ or ‘Primary Constituent Elements’/PCEs’).’’ Pursuant to these regulations, such features include, but are not limited to space for individual and population growth, and normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distribution of a species. When considering the designation of critical habitat, we focus on the principal biological or physical constituent elements, known as primary constituent elements (PCEs). PCEs may include, but are not limited to: nesting grounds, feeding sites, water quality, tide, and geological formation. Our implementing regulations (50 CFR 424.02) define ‘‘special management considerations or protection’’ as any method or procedure useful in protecting physical and biological features of the environment for the conservation of the species. Section 4(b)(2) of the ESA requires us to designate and make revisions to critical habitat for listed species based on 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. The Secretary of Commerce may exclude any particular area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned. NMFS and FWS have recently published proposed rules to implement changes to the regulations for designating critical habitat. The proposed amendments would make minor edits to the scope and purpose, add and remove some definitions (e.g., geographic area and essential features), and clarify the criteria for designating critical habitat (79 FR 27066; May 12, 2014). We will incorporate any relevant final regulations and guidance into our process for revising critical habitat. E:\FR\FM\24FEP1.SGM 24FEP1 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS The ESA provides that NMFS may, from time-to-time, revise critical habitat as appropriate (section 4(a)(3)(B)). In accordance with section 4(b)(3)(D)(i) of the ESA, to the maximum extent practicable, within 90 days of receipt of a petition to revise critical habitat, the Secretary of Commerce is required to make a finding as to whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register. On April 25, 2014 (79 FR 22933), we published our 90-day finding that the petition, viewed in the context of the information readily available in our files, presented substantial information indicating that revising critical habitat may be warranted and initiated a review of the current critical habitat designation. To ensure a comprehensive review of the current critical habitat designation and new information that is now available, we solicited scientific and commercial information regarding the petitioned action. When we find that a petition presents substantial information indicating that a revision may be warranted, we are required to determine how we intend to proceed with the requested revision within 12 months after receiving the petition, and promptly publish notice of our intention in the Federal Register. The statute says nothing more about options or considerations regarding the 12-month determination or timelines associated with issuance of a proposed rule, (see section 4(b)(3)(D)(ii)). This notice reviews the current critical habitat designation, the petition for revision, summarizes comments on the 90-day finding, and describes how we intend to proceed with the requested revisions to critical habitat for the Southern Resident killer whale DPS. Current Critical Habitat Designation Following the ESA listing of the Southern Resident killer whale DPS (70 FR 69903; November 18, 2005), we finalized a designation of critical habitat in 2006 (71 FR 69054; November 29, 2006). We summarized available information on natural history, habitat use, and habitat features in a Biological Report accompanying the designation (NMFS, 2006). Based on the natural history of the Southern Resident killer whales and their habitat needs, the physical or biological features necessary for conservation were identified as: (1) Water quality to support growth and development; (2) prey species of sufficient quantity, quality and availability to support individual growth, reproduction and development, VerDate Sep<11>2014 16:04 Feb 23, 2015 Jkt 235001 as well as overall population growth; and (3) passage conditions to allow for migration, resting, and foraging. The final critical habitat designation identified three specific areas, within the area occupied, which contained the essential features listed above. The three specific areas designated as critical habitat were (1) the Summer Core Area in Haro Strait and waters around the San Juan Islands; (2) Puget Sound; and (3) the Strait of Juan de Fuca, which in total comprise approximately 2,560 square miles (6,630 sq km) of marine habitat. We determined that the economic benefits of exclusion of any of the areas did not outweigh the benefits of designation, and we therefore did not exclude any areas based on economic impacts. We considered the impacts to national security, and concluded the benefits of exclusion of 18 military sites, comprising approximately 112 square miles (291 sq km), outweighed the benefits of inclusion, because of national security impacts, and therefore, the sites were not included in the designation. The critical habitat designation included waters deeper than 20 feet (6.1 m) relative to the extreme high water tidal datum. At the time of the designation, we noted that there were few data on Southern Resident killer whale distribution and habitat use of the coastal and offshore areas in the Pacific Ocean. Although we recognized that the whales occupy these waters for a portion of the year and considered them part of the geographical area occupied by the species, we declined to designate these areas as critical habitat because the data informing whale distribution, behavior and habitat use were insufficient to define ‘‘specific areas’’ (see Coastal and Offshore Areas section; 71 FR 69054; November 29, 2006). Petition To Revise Critical Habitat On January 21, 2014, we received a petition from the Center for Biological Diversity requesting revision to the critical habitat designation for the Southern Resident killer whale DPS. The petition lists recent sources of information on the whales’ habitat use along the West Coast of the U.S., particularly from NMFS’ Northwest Fisheries Science Center (NWFSC) programs, such as satellite tagging conducted in 2012 and 2013. The petition also reviews natural history and threats to the whales. The Center for Biological Diversity proposes that the critical habitat designation be revised and expanded to include the addition of the Pacific Ocean region between Cape Flattery, WA, and Point Reyes, CA, extending approximately 47 miles (76 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 9683 km) offshore. The petition identifies that each of the three PCEs identified in the 2006 critical habitat designation (see Current Critical Habitat Designation Section above) are also essential features in the whales’ Pacific Ocean habitat. In addition, the petition asks us to adopt a fourth PCE for both existing and proposed critical habitat areas providing for in-water sound levels that: ‘‘(1) do not exceed thresholds that inhibit communication or foraging activities, (2) do not result in temporary or permanent hearing loss to whales, and (3) do not result in abandonment of critical habitat areas.’’ The standard for determination of whether a petition includes substantial information is whether the amount of information presented provides a basis for us to find that it would lead a reasonable person to believe that the measure proposed in the petition may be warranted. Based on the information presented and referenced in the petition, as well as all other information readily available in our files, we found that the recent information on the whales’ movements through their offshore habitat and discussion of sound as a feature of habitat met this standard and published a 90-day finding accepting the petition and requesting information to inform a review of the current critical habitat designation (79 FR 22933; April 25, 2014). Summary of Public Comments In the 90-day finding we solicited new information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning (1) the essential habitat needs and use of the whales, (2) the West Coast area proposed for inclusion, (3) the physical and biological features essential to the conservation of Southern Residents and that may require special management considerations or protection, (4) information regarding potential benefits or impacts of designating any particular area, including information on the types of Federal actions that may affect the area’s physical and biological features, and (5) current or planned activities in the areas proposed as critical habitat and costs of potential modifications to those activities due to critical habitat designation. We requested that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. The public comment period on the 90-day finding closed on June 24, 2014, and all of the comments received can be viewed at www.regulations.gov by E:\FR\FM\24FEP1.SGM 24FEP1 9684 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS searching for FDMS docket number ‘‘NOAA–NMFS–2014–0041’’. We received 275 comments from a variety of individuals and organizations including researchers, concerned citizens, private, government and nonprofit organizations. The majority of comments (over 250) were brief expressions of support for expanding the Southern Resident killer whale’s critical habitat to offshore and coastal areas; two commenters were opposed to the petition’s proposed revision of critical habitat. In addition, many commenters noted sound was important to killer whales and six specifically supported including sound as a PCE for critical habitat. There were fifteen commenters that provided substantive information or comments. Thirteen of these commenters supported the petitioned action, and many referenced the data presented in the petition, which largely comes from recent NWFSC studies conducted from 2006– 2013. Some commenters offered additional information, including data on ocean and Puget Sound fisheries, salmon populations along the Washington coast, and whale sightings in inland waters and off the Washington, Oregon, and California coasts. Below we provide a summary of the substantive comments and information so the public is aware of the information submitted. Where appropriate, we have combined similar comments. We will take into account the comments and information provided in our consideration of a revision to critical habitat. Geographical Area Occupied by the Species Comment 1: Several commenters noted that the data from satellite tracking and tagging, visual sightings, acoustic recorders, and strandings all provide evidence that the Southern Resident killer whales regularly use the coasts of Washington, Oregon, and California during part of the year. One commenter suggested that more research be conducted to help decide if the proposed southern boundary be extended even farther south. Several commenters provided evidence that suggests the whales are spending less time in inland waters, specifically in spring months, and have likely increased their use of offshore waters. They noted the coast is important to the whales, which makes the need of an expanded protected area essential. Comment 2: Two commenters urged that we should reconsider the protection of the Hood Canal and include it in the revised critical habitat designation and one suggested expanding critical habitat VerDate Sep<11>2014 16:04 Feb 23, 2015 Jkt 235001 into shallower waters. These commenters stressed the historical importance of Hood Canal to the whales and noted that it was used on a regular basis until the early 1980s. The last confirmed use of Hood Canal by the Southern Residents occurred in 1995, which one commenter noted was less than 4 years prior to the formal listing process. Based on the extensive use of Hood Canal by transient killer whales, they noted Hood Canal possesses the physical and biological features necessary to support the whales. Due to its proximity to the core use area in the San Juan Islands, prey resources in Hood Canal could be used, and Hood Canal would provide a safe refuge in the event of an oil spill. In addition to expanding inland critical habitat to include Hood Canal, one commenter suggested expanding critical habitat to shallower water for the pursuit of prey, socializing, grooming, and playing. The commenter argued that including the whale’s active space in critical habitat (or the space around an individual that is perceived visually or auditorily) is more appropriate than creating an arbitrary border at 20 feet (6.1m) of water. Military Exclusions Comment 3: One commenter noted that NMFS should only exclude a subset of the military exclusion requests or completely revoke all of the exclusions. This comment was based on the large size and Southern Resident killer whale use of some military areas and suggestions that military activities could be moved to reduce overall area or mitigation for military areas could be considered elsewhere. Sound as an Essential Feature of Critical Habitat Comment 4: Many commenters expressed concern that underwater noise can affect Southern Resident killer whales in numerous ways, including disrupting communication, reducing the distance of detecting prey or other whales, masking echolocation, temporarily or permanently impairing hearing, causing strandings or mortality, causing other stress-related harm, and leading to habitat abandonment. Several of these commenters were concerned that ambient underwater noise levels are rapidly increasing in the whales’ habitat. For example, one commenter was concerned that a proposed expansion of naval structures in the Puget Sound will add more noise to the current levels that may cause behavioral disturbance. Another commenter was concerned about an increase in Navy training and testing activities in the PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 Pacific Ocean that could put the killer whales in more danger. One commenter was concerned that the issuance of incidental take permits does not occur for all noise sources (e.g., there is no regulation of shipping noise, recreational vessel and commercial whale watch vessel traffic noise or noise from fisheries). Another commenter argued that noise pollution is hurting the gene pool by unintentionally selecting against acute hearing, which they argue is likely to reduce the fitness of individuals in the population. These commenters urged us to identify a sound-based PCE and identify sound levels that do not (1) exceed thresholds that inhibit communication or foraging activities, (2) result in temporary or permanent hearing loss to the whales, or (3) result in the abandonment of critical habitat areas. One commenter added that the soundbased PCE should be established so as not to cause chronic stress, including stress that is potentially sufficient to impair reproduction, or increase morbidity or the risk of mortality. They suggested that we evaluate whether a numeric standard for the sound PCE may be appropriate to determine when adverse modification of critical habitat occurs. However, if numerical standards are not supported by available data, they suggested we adopt proxies from other species. Lastly, several commenters noted that the Canadian government has identified acoustic degradation as one of the main threats to killer whales and the acoustic quality of the Southern and Northern Resident killer whales’ critical habitat in Canada is legally protected by the Critical Habitat Protection Order (see http://www.registrelepsararegistry.gc.ca/document/default_ e.cfm?documentID=1756.) One commenter supports the petition, but cautioned that the establishment of in-water sound levels based on results from the work primarily from one researcher (Williams et al., 2009; 2013; 2014), which they still considered to be a work-in-progress and, based on another population of killer whales, could result in a disproportionate and distractive regulatory action against the boat-based whale watch industry. Another commenter asked us to reject the petition and believes revising critical habitat to include the coastal waters of Washington, Oregon, and California and/or adopting a sound PCE would compromise military readiness and national security by substantially limiting training, testing, and construction activities. Furthermore, the commenter stated the PCE criteria described in the petition are too vague for a complete assessment of potential E:\FR\FM\24FEP1.SGM 24FEP1 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS impacts to Navy activities, and they requested we clarify the details on the sound PCE (e.g., the frequency of sounds of concern, the duration and type of sounds and sound producing activity that would likely create an adverse effect, the sound level threshold, timing, the certainty to which an animal would need to be present to trigger restrictions, and implementation and enforcement techniques), in order to adequately assess the impacts to national security. Another commenter asked us to reject the petition and argued that sound is not a tangible feature contemplated by the ESA, but rather is an element that can be introduced into the aquatic environment that has the potential to have a direct effect on a species. They also argued the effects to a species from an action should be addressed in the section 7 jeopardy analysis, whereas the adverse modification analysis needs to address the potential impacts of the action on the habitat. With the exception of Cook Inlet beluga whales designated critical habitat that includes in-water noise below levels resulting in the abandonment of critical habitat areas (50 CFR 226.220), they note that designating sound as a PCE would be a departure from NMFS’ prior practice of not including sound, even for species that can be affected by in-water sound (i.e., right whales). Lastly, they claim there is no factual basis to designate sound as a PCE and the petition does not narrowly define designated critical habitat. For example, they argue that no information in the petition shows where the specific areas containing the elements of the noise PCE are found, and the biological needs of the whales are not well known enough to determine specific marine areas with sound levels essential to their conservation. Essential Features and Special Management Considerations Comment 5: Several commenters argued that Southern Resident killer whales are susceptible to threats outside their current protected habitat and the proposed area for critical habitat is in need of protection. The commenters noted that the whales feed on salmon, breed, and calve while in coastal waters. They highlighted that current Southern Resident killer whale critical habitat only protects summer and fall Chinook salmon stocks. One commenter stressed that the winter and spring runs of Chinook salmon along the outer coast represent a major food source for the whales and that these runs should also be protected. Because the whales appear to be spending less time in inland waters, specifically in spring months, VerDate Sep<11>2014 16:04 Feb 23, 2015 Jkt 235001 commenters noted that the whales have likely increased their reliance on coastal salmon. Several of the commenters also highlighted that the whales are likely giving birth in these coastal waters in the autumn/winter months and may require more food for lactating mothers. Another commenter argued that the declining coast-wide availability of Chinook salmon reinforces the need to include this area as designated critical habitat to ensure the survival of the salmon on which the Southern Residents depend. In general, these commenters supported expanding critical habitat to encompass the whale’s year-round range, which includes coastal waters of Washington, Oregon, and California, to ensure the conservation of all current foraging grounds and that expanding critical habitat will support sufficient prey to help the whales recover. In addition to the concern over prey availability, several commenters were concerned that the Southern Residents have acquired high levels of pollutants linked to California that may affect reproduction and the population decline. They also highlighted that because the whales occupy a highly industrialized area, foraging near outflow of large rivers that carry pollutants can directly affect the whale’s health and prey. Additionally, they strongly urged us to ensure that the use and disposal of chemicals do not conflict with the whale’s habitat. Improving water quality in the whales’ coastal winter range requires special management and protection, which they argue is provided by designating the area as critical habitat. Nineteen commenters mentioned the general threats to Southern Resident killer whales from ships, and several of those commenters argued that special management is needed in offshore waters to address the threats from increasing ship traffic within the coastal range of the whales because traffic likely impacts killer whale foraging habits. In addition, they note an increase in port size or vessel traffic could also have a significant risk because it will increase the risk of collision. They urge us to revise critical habitat to ensure that decisions regarding the expansion of fossil fuel transportation and other maritime activities do not impact the killer whale’s coastal range. Several commenters highlighted that the increase in development of alternative energy sources may also pose a possible passage risk to the killer whales, thereby requiring special management and oversight. Lastly, one commenter was concerned that migration of prey species due to ocean acidification and climate PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 9685 change could impose additional challenges for the whales. 12-Month Determination on Revision of Critical Habitat Since critical habitat for Southern Resident killer whales was designated in 2006, new information on habitat use has become available. As described in the critical habitat designation in 2006, we have been directly engaged in research activities to fill data gaps about coastal habitat use. Collecting information to better understand coastal distribution was also identified as a top priority in developing the Research Plan and Recovery Plan for Southern Resident killer whales (NMFS, 2008). In 2011, NMFS completed a 5-year review of the status Southern Resident DPS under the ESA (NMFS, 2011). In the 5year review, one of the recommendations for future actions was to increase knowledge of coastal distribution, habitat use and prey consumption to inform critical habitat determination. As identified in the petition and the public comments, the NWFSC and our partners have employed several techniques to collect information on coastal distribution and behavior, some of which include landbased sightings, passive acoustic monitoring, coastal research cruises, and satellite tag studies. In 2014, we released a 10-year report on research and conservation for Southern Resident killer whales, which summarized some of the major findings of this ongoing research on coastal habitat use and listed almost a dozen papers and reports that have become available since 2006. The report and a full list of publications are available on our Web page at: http://www.nwfsc.noaa.gov/news/ features/killer_whale_report/index.cfm. Additional information since the 2006 critical habitat designation regarding effects of anthropogenic sound on marine mammals was also provided in the petition. The petition references new information on killer whale responses to vessel noise (Erbe et al., 2012; Holt, 2008; Holt et al. 2009, Williams et al., 2009, Williams et al., 2014), as well as a review of the acoustic quality of habitats for whale populations, including killer whales (Williams et al., 2013). Many of these publications are also listed in the recent 10-year report along with several other articles and reports from NWFSC projects and partnerships investigating vessel interactions and noise effects. How We Intend To Proceed Based on the new information above, we intend to proceed with the petitioned action to revise critical E:\FR\FM\24FEP1.SGM 24FEP1 9686 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS habitat for Southern Resident killer whales. Below we identify the steps we will take to ensure that we use the best available scientific and commercial data to inform any revision and meet the statutory requirements for designating or revising critical habitat. Step 1: Complete Data Collection and Analysis While data from new studies are available in our files and have begun to address data gaps identified in the 2006 critical habitat designation, considerable data collection and analysis needs to be conducted to refine our understanding of the whales’ habitat use and needs. Additional time will increase sample sizes and provide the opportunity to conduct robust analyses. While we have been actively working on gathering and analyzing data on coastal habitat use, these data and analyses are not yet sufficiently developed to inform and propose revisions to critical habitat as requested in the petition. Additional data and analyses will contribute to identification of biological and physical features—as well as areas in the Pacific Ocean that contain these features—to inform the identification of specific areas. In the petition, the Center for Biological Diversity recognized that we are continuing to gather and analyze data describing the Southern Residents’ use of coastal and offshore waters and requested we refine the proposed revisions, as necessary, to include additional inhabited zones or to focus specifically on areas of concentrated use. There are several ongoing studies that will inform any revisions to critical habitat. The NWFSC and our partners are currently engaged in the following projects and we anticipate new data, analyses, reports and papers regarding coastal habitat use available over the next 2 years. Below are descriptions of several ongoing data analysis projects, plans for collecting additional data, and projects that bring together and analyze data from a number of sources. Sighting networks: For many years, NMFS, the Center for Whale Research, and other partners have solicited sightings of killer whales, including the Southern Residents, along the coast. Prior to 2003, data on the whales’ winter distribution and movement patterns were limited to a handful of sightings reported by a diverse group of ocean users. We will continue to solicit coastal sightings from the public and ocean users, and will also follow up on sighting information presented in the public comments on the 90-day finding. Although this work continues, in recent years we have used a variety of new VerDate Sep<11>2014 16:04 Feb 23, 2015 Jkt 235001 technologies described below to supplement and expand the sighting network information. Acoustic recorders: The NWFSC has been deploying passive acoustic recorders in coastal waters to capture acoustic calls of marine mammals, and Southern Resident killer whales in particular, to better understand distribution and habitat use. Hanson et al. (2013) analyzed and reported results on coastal occurrence of Southern Residents using these recorders deployed in 2006 through 2011; however, there are additional years of data from 2012–2014 now available and undergoing analysis. In addition, this project will be expanded with new recorder deployments in 2015 to expand sample sizes with new data and a comprehensive analysis is expected in 2016. Satellite tagging: Since 2012, the NWFSC has deployed satellite tags on five Southern Resident killer whales, including one extended deployment on K25 that lasted for 93 days. The information gathered from satellite tagging will address the data gap in winter distribution identified in the Recovery Plan, as well as provide further information on habitat use. This technique has been identified as an important approach for obtaining information on habitat use by an independent science panel that assessed the impact of salmon fisheries on Southern Resident killer whales (Hilborn et al., 2012). Analysis of the existing data is currently underway and the program will continue with additional tag deployments planned for 2015–2016. Research cruises: NMFS’ NWFSC has located Southern Resident killer whales off the Washington and Oregon coasts on six of seven NOAA cruises to study the whales since 2004. In 2013, researchers used satellite tagging information to follow the whales along the coast for eight days, allowing nearly continuous investigations of behavior and habitat use. Scientists also collected numerous prey and fecal samples to learn more about winter diet as well as oceanographic data to improve our understanding of important features of the whales’ environment along the coast. The NWFSC has a research cruise planned for February 2015 and also plans to request ship time for a cruise in 2016. In addition to further analysis of existing cruise data, cruise reports and additional analysis from 2015 and 2016 will be available in the next 2 years. Prey mapping: The NWFSC and Southwest Fisheries Science Center (SWFSC) are working together to PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 investigate salmon distributions along the West Coast. This project will analyze coded wire tag data and other available data sources to build prey maps of spring, summer and fall distribution of salmon. Results from this analysis are anticipated in summer of 2015 and will inform consideration of prey as a potential essential feature of the whales’ coastal habitat. In addition, results from this study will inform other projects, such as the individual based bioenergetics model described below. Individual based model: The SWFSC, NWFSC and other partners are in the process of developing a spatiallyexplicit individual based model (IBM) to explore the effects of variation in the abundance and distribution of salmon stocks and other coastal fishes on the net energy gain of Southern Resident killer whales during the non-summer months. The initial purpose of the IBM is to integrate available data within a single analytical framework, and support development of a research strategy for identifying critical habitat for Southern Resident killer whales off the coasts of Washington, Oregon, and California. Ultimately, the IBM will be used to investigate whether and how modeling critical habitat and prey resource management could be effective at minimizing the risk of energy balances falling below critical thresholds. Phase I of the project will include a literature review and a model framework vetted by the project partners. Completion of this phase is anticipated in July 2015. Pending continued funding, a second phase of the project will include a second generation model to investigate one or more specific hypotheses on the relationship between habitat/prey attributes and whale vital rates, which would be available in 2016. Step 2: Identify Areas Meeting the Definition of Critical Habitat Pursuant to ESA section 3(5)(A), we must determine ‘‘the geographical area occupied by the species at the time of listing.’’ Next we identify physical or biological features essential to the conservation of the species. Agency regulations at 50 CFR 424.12(b) interpret the statutory phrase ‘‘physical or biological features essential to the conservation of the species.’’ The regulations state that these features include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or E:\FR\FM\24FEP1.SGM 24FEP1 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules are representative of the historical geographical and ecological distribution of a species. After determining the geographical area occupied by the Southern Residents, and the physical and biological features essential to their conservation, we would next identify the specific areas within the geographical area occupied by the species that contain the essential features. Specific areas meet the definition of critical habitat if they contain physical or biological features that ‘‘may require special management considerations or protection.’’ Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define ‘‘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.’’ For the 2006 designation we reviewed the natural history, habitat use and habitat features in a Biological Report to assist with identifying areas that meet the definition of critical habitat. We will consider the previous designation and new information that has become available to evaluate areas eligible for critical habitat designation. An additional part of this evaluation is considering military areas that are precluded from designation because they are subject to Integrated Natural Resource Management Plans under the Sikes Act and provide benefits to the listed species. Step 3: Section 4(b)(2) Analysis tkelley on DSK3SPTVN1PROD with PROPOSALS Section 4(b)(2) of the ESA requires us to use the best available data in VerDate Sep<11>2014 16:04 Feb 23, 2015 Jkt 235001 designating critical habitat. It also requires that before we designate any particular area, we must consider the economic impact, impact on national security, and any other relevant impact. To determine the impact of designation, we can examine what the state of things would be with and without a critical habitat designation. For the 2006 designation we conducted an Economic Analysis to identify economic impacts and also coordinated with the Department of Defence to evaluate impacts of designation on national security. Under section 4(b)(2) we also identify the conservation benefits to the species of designating particular areas. The principal benefit of designating critical habitat is that ESA section 7 requires every Federal agency to ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of designated critical habitat. This complements the section 7 provision that Federal agencies ensure their actions are not likely to jeopardize the continued existence of a listed species. Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area. The next step in the 4(b)(2) analysis is to balance the benefits of designation against the benefits of exclusion and recommend any exclusions, if appropriate. We must also determine whether any exclusion will result in extinction of the species. For the 2006 designation we completed a 4(b)(2) report that considered the benefits of designation and benefits of exclusions PO 00000 Frm 00021 Fmt 4702 Sfmt 9990 9687 and we did exclude military areas based on national security impacts. Step 4: Develop Proposed Rule for Public Comment Steps 1–3 will inform any proposal for revision of critical habitat. The underlying science of the decision would be required to undergo peer review according to the Office of Management and Budget Bulletin for Peer Review, implemented under the Information Quality Act (Public Law 106–554). Any proposed rule we develop will be published in the Federal Register and we will seek public comment. To allow for sufficient time to incorporate anticipated research results and new analysis and to conduct economic and 4(b)(2) analyses, we anticipate developing a proposed rule for publication in the Federal Register in 2017. References Cited The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http:// www.westcoast.fisheries.noaa.gov/ protected_species/marine_mammals/ killer_whale/esa_status.html Authority: 16 U.S.C. 1531 et seq. Dated: February 11, 2015. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2015–03378 Filed 2–23–15; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\24FEP1.SGM 24FEP1

Agencies

[Federal Register Volume 80, Number 36 (Tuesday, February 24, 2015)]
[Proposed Rules]
[Pages 9682-9687]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-03378]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 140407321-5096-02]
RIN 0648-XD233


Listing Endangered or Threatened Species; 12-Month Finding on a 
Petition To Revise the Critical Habitat Designation for the Southern 
Resident Killer Whale Distinct Population Segment

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of 12-month finding.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 
12-month finding on a petition from the Center for Biological Diversity 
to revise the critical habitat designation for the Southern Resident 
killer whale (Orcinus orca) Distinct Population Segment (DPS) under the 
Endangered Species Act (ESA). In November 2006 we issued a final rule 
designating approximately 2,560 square miles (6,630 square km) of 
inland waters of Washington State as critical habitat for the Southern 
Resident killer whale DPS. The January 2014 petition requests we revise 
this critical habitat to include Pacific Ocean marine waters along the 
West Coast of the United States that constitute essential foraging and 
wintering areas for Southern Resident killer whales. Additionally, the 
petition requests that we adopt as a primary constituent element (PCE), 
for both currently designated critical habitat and the proposed revised 
critical habitat, protective in-water sound levels. The ESA defines a 
process for responding to petitions to revise critical habitat. We have 
reviewed the public comments and best available information on Southern 
Resident killer whale habitat use and as the next step in the response 
to the petition process defined in the ESA, this 12-month determination 
describes how we intend to proceed with the requested revision.

DATES: The finding announced in this document was made on February 24, 
2015.

ADDRESSES: Copies of the petition, 90-day finding, and the list of 
references are available online at: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/esa_status.html
    Requests for copies of this determination should be addressed to:
    NMFS, West Coast Region, Protected Resources Division, 7600 Sand 
Point Way NE., Seattle, WA 98115. Attention--Lynne Barre, Seattle 
Branch Chief.

FOR FURTHER INFORMATION CONTACT: Lynne Barre, NMFS West Coast Region, 
(206) 526-4745; or Dwayne Meadows, NMFS Office of Protected Resources, 
(301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On January 21, 2014, we received a petition from the Center for 
Biological Diversity requesting revisions to the critical habitat 
designation for the Southern Resident killer whale DPS. That requested 
revision sets in motion a process for agency response defined in the 
ESA and explained below.
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
the specific areas within the geographical area currently 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.''
    Joint NMFS-Fish and Wildlife Service (FWS) regulations for 
designating critical habitat at 50 CFR 424.12(b) state that the 
agencies ``shall consider those physical and biological features that 
are essential to the conservation of a given species and that may 
require special management considerations or protection (hereafter also 
referred to as `Essential Features' or `Primary Constituent Elements'/
PCEs').'' Pursuant to these regulations, such features include, but are 
not limited to space for individual and population growth, and normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historic geographical and 
ecological distribution of a species. When considering the designation 
of critical habitat, we focus on the principal biological or physical 
constituent elements, known as primary constituent elements (PCEs). 
PCEs may include, but are not limited to: nesting grounds, feeding 
sites, water quality, tide, and geological formation. Our implementing 
regulations (50 CFR 424.02) define ``special management considerations 
or protection'' as any method or procedure useful in protecting 
physical and biological features of the environment for the 
conservation of the species.
    Section 4(b)(2) of the ESA requires us to designate and make 
revisions to critical habitat for listed species based on 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. 
The Secretary of Commerce may exclude any particular area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she determines that the failure to designate such area as 
critical habitat will result in the extinction of the species 
concerned.
    NMFS and FWS have recently published proposed rules to implement 
changes to the regulations for designating critical habitat. The 
proposed amendments would make minor edits to the scope and purpose, 
add and remove some definitions (e.g., geographic area and essential 
features), and clarify the criteria for designating critical habitat 
(79 FR 27066; May 12, 2014). We will incorporate any relevant final 
regulations and guidance into our process for revising critical 
habitat.

[[Page 9683]]

    The ESA provides that NMFS may, from time-to-time, revise critical 
habitat as appropriate (section 4(a)(3)(B)). In accordance with section 
4(b)(3)(D)(i) of the ESA, to the maximum extent practicable, within 90 
days of receipt of a petition to revise critical habitat, the Secretary 
of Commerce is required to make a finding as to whether that petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted, and to promptly publish 
such finding in the Federal Register. On April 25, 2014 (79 FR 22933), 
we published our 90-day finding that the petition, viewed in the 
context of the information readily available in our files, presented 
substantial information indicating that revising critical habitat may 
be warranted and initiated a review of the current critical habitat 
designation. To ensure a comprehensive review of the current critical 
habitat designation and new information that is now available, we 
solicited scientific and commercial information regarding the 
petitioned action.
    When we find that a petition presents substantial information 
indicating that a revision may be warranted, we are required to 
determine how we intend to proceed with the requested revision within 
12 months after receiving the petition, and promptly publish notice of 
our intention in the Federal Register. The statute says nothing more 
about options or considerations regarding the 12-month determination or 
timelines associated with issuance of a proposed rule, (see section 
4(b)(3)(D)(ii)). This notice reviews the current critical habitat 
designation, the petition for revision, summarizes comments on the 90-
day finding, and describes how we intend to proceed with the requested 
revisions to critical habitat for the Southern Resident killer whale 
DPS.

Current Critical Habitat Designation

    Following the ESA listing of the Southern Resident killer whale DPS 
(70 FR 69903; November 18, 2005), we finalized a designation of 
critical habitat in 2006 (71 FR 69054; November 29, 2006). We 
summarized available information on natural history, habitat use, and 
habitat features in a Biological Report accompanying the designation 
(NMFS, 2006). Based on the natural history of the Southern Resident 
killer whales and their habitat needs, the physical or biological 
features necessary for conservation were identified as: (1) Water 
quality to support growth and development; (2) prey species of 
sufficient quantity, quality and availability to support individual 
growth, reproduction and development, as well as overall population 
growth; and (3) passage conditions to allow for migration, resting, and 
foraging.
    The final critical habitat designation identified three specific 
areas, within the area occupied, which contained the essential features 
listed above. The three specific areas designated as critical habitat 
were (1) the Summer Core Area in Haro Strait and waters around the San 
Juan Islands; (2) Puget Sound; and (3) the Strait of Juan de Fuca, 
which in total comprise approximately 2,560 square miles (6,630 sq km) 
of marine habitat. We determined that the economic benefits of 
exclusion of any of the areas did not outweigh the benefits of 
designation, and we therefore did not exclude any areas based on 
economic impacts. We considered the impacts to national security, and 
concluded the benefits of exclusion of 18 military sites, comprising 
approximately 112 square miles (291 sq km), outweighed the benefits of 
inclusion, because of national security impacts, and therefore, the 
sites were not included in the designation. The critical habitat 
designation included waters deeper than 20 feet (6.1 m) relative to the 
extreme high water tidal datum.
    At the time of the designation, we noted that there were few data 
on Southern Resident killer whale distribution and habitat use of the 
coastal and offshore areas in the Pacific Ocean. Although we recognized 
that the whales occupy these waters for a portion of the year and 
considered them part of the geographical area occupied by the species, 
we declined to designate these areas as critical habitat because the 
data informing whale distribution, behavior and habitat use were 
insufficient to define ``specific areas'' (see Coastal and Offshore 
Areas section; 71 FR 69054; November 29, 2006).

Petition To Revise Critical Habitat

    On January 21, 2014, we received a petition from the Center for 
Biological Diversity requesting revision to the critical habitat 
designation for the Southern Resident killer whale DPS. The petition 
lists recent sources of information on the whales' habitat use along 
the West Coast of the U.S., particularly from NMFS' Northwest Fisheries 
Science Center (NWFSC) programs, such as satellite tagging conducted in 
2012 and 2013. The petition also reviews natural history and threats to 
the whales. The Center for Biological Diversity proposes that the 
critical habitat designation be revised and expanded to include the 
addition of the Pacific Ocean region between Cape Flattery, WA, and 
Point Reyes, CA, extending approximately 47 miles (76 km) offshore. The 
petition identifies that each of the three PCEs identified in the 2006 
critical habitat designation (see Current Critical Habitat Designation 
Section above) are also essential features in the whales' Pacific Ocean 
habitat. In addition, the petition asks us to adopt a fourth PCE for 
both existing and proposed critical habitat areas providing for in-
water sound levels that: ``(1) do not exceed thresholds that inhibit 
communication or foraging activities, (2) do not result in temporary or 
permanent hearing loss to whales, and (3) do not result in abandonment 
of critical habitat areas.''
    The standard for determination of whether a petition includes 
substantial information is whether the amount of information presented 
provides a basis for us to find that it would lead a reasonable person 
to believe that the measure proposed in the petition may be warranted. 
Based on the information presented and referenced in the petition, as 
well as all other information readily available in our files, we found 
that the recent information on the whales' movements through their 
offshore habitat and discussion of sound as a feature of habitat met 
this standard and published a 90-day finding accepting the petition and 
requesting information to inform a review of the current critical 
habitat designation (79 FR 22933; April 25, 2014).

Summary of Public Comments

    In the 90-day finding we solicited new information from the public, 
governmental agencies, tribes, the scientific community, industry, 
environmental entities, and any other interested parties concerning (1) 
the essential habitat needs and use of the whales, (2) the West Coast 
area proposed for inclusion, (3) the physical and biological features 
essential to the conservation of Southern Residents and that may 
require special management considerations or protection, (4) 
information regarding potential benefits or impacts of designating any 
particular area, including information on the types of Federal actions 
that may affect the area's physical and biological features, and (5) 
current or planned activities in the areas proposed as critical habitat 
and costs of potential modifications to those activities due to 
critical habitat designation. We requested that all data and 
information be accompanied by supporting documentation such as maps, 
bibliographic references, or reprints of pertinent publications.
    The public comment period on the 90-day finding closed on June 24, 
2014, and all of the comments received can be viewed at 
www.regulations.gov by

[[Page 9684]]

searching for FDMS docket number ``NOAA-NMFS-2014-0041''. We received 
275 comments from a variety of individuals and organizations including 
researchers, concerned citizens, private, government and nonprofit 
organizations. The majority of comments (over 250) were brief 
expressions of support for expanding the Southern Resident killer 
whale's critical habitat to offshore and coastal areas; two commenters 
were opposed to the petition's proposed revision of critical habitat. 
In addition, many commenters noted sound was important to killer whales 
and six specifically supported including sound as a PCE for critical 
habitat. There were fifteen commenters that provided substantive 
information or comments. Thirteen of these commenters supported the 
petitioned action, and many referenced the data presented in the 
petition, which largely comes from recent NWFSC studies conducted from 
2006-2013. Some commenters offered additional information, including 
data on ocean and Puget Sound fisheries, salmon populations along the 
Washington coast, and whale sightings in inland waters and off the 
Washington, Oregon, and California coasts. Below we provide a summary 
of the substantive comments and information so the public is aware of 
the information submitted. Where appropriate, we have combined similar 
comments. We will take into account the comments and information 
provided in our consideration of a revision to critical habitat.

Geographical Area Occupied by the Species

    Comment 1: Several commenters noted that the data from satellite 
tracking and tagging, visual sightings, acoustic recorders, and 
strandings all provide evidence that the Southern Resident killer 
whales regularly use the coasts of Washington, Oregon, and California 
during part of the year. One commenter suggested that more research be 
conducted to help decide if the proposed southern boundary be extended 
even farther south. Several commenters provided evidence that suggests 
the whales are spending less time in inland waters, specifically in 
spring months, and have likely increased their use of offshore waters. 
They noted the coast is important to the whales, which makes the need 
of an expanded protected area essential.
    Comment 2: Two commenters urged that we should reconsider the 
protection of the Hood Canal and include it in the revised critical 
habitat designation and one suggested expanding critical habitat into 
shallower waters. These commenters stressed the historical importance 
of Hood Canal to the whales and noted that it was used on a regular 
basis until the early 1980s. The last confirmed use of Hood Canal by 
the Southern Residents occurred in 1995, which one commenter noted was 
less than 4 years prior to the formal listing process. Based on the 
extensive use of Hood Canal by transient killer whales, they noted Hood 
Canal possesses the physical and biological features necessary to 
support the whales. Due to its proximity to the core use area in the 
San Juan Islands, prey resources in Hood Canal could be used, and Hood 
Canal would provide a safe refuge in the event of an oil spill. In 
addition to expanding inland critical habitat to include Hood Canal, 
one commenter suggested expanding critical habitat to shallower water 
for the pursuit of prey, socializing, grooming, and playing. The 
commenter argued that including the whale's active space in critical 
habitat (or the space around an individual that is perceived visually 
or auditorily) is more appropriate than creating an arbitrary border at 
20 feet (6.1m) of water.

Military Exclusions

    Comment 3: One commenter noted that NMFS should only exclude a 
subset of the military exclusion requests or completely revoke all of 
the exclusions. This comment was based on the large size and Southern 
Resident killer whale use of some military areas and suggestions that 
military activities could be moved to reduce overall area or mitigation 
for military areas could be considered elsewhere.

Sound as an Essential Feature of Critical Habitat

    Comment 4: Many commenters expressed concern that underwater noise 
can affect Southern Resident killer whales in numerous ways, including 
disrupting communication, reducing the distance of detecting prey or 
other whales, masking echolocation, temporarily or permanently 
impairing hearing, causing strandings or mortality, causing other 
stress-related harm, and leading to habitat abandonment. Several of 
these commenters were concerned that ambient underwater noise levels 
are rapidly increasing in the whales' habitat. For example, one 
commenter was concerned that a proposed expansion of naval structures 
in the Puget Sound will add more noise to the current levels that may 
cause behavioral disturbance. Another commenter was concerned about an 
increase in Navy training and testing activities in the Pacific Ocean 
that could put the killer whales in more danger. One commenter was 
concerned that the issuance of incidental take permits does not occur 
for all noise sources (e.g., there is no regulation of shipping noise, 
recreational vessel and commercial whale watch vessel traffic noise or 
noise from fisheries). Another commenter argued that noise pollution is 
hurting the gene pool by unintentionally selecting against acute 
hearing, which they argue is likely to reduce the fitness of 
individuals in the population.
    These commenters urged us to identify a sound-based PCE and 
identify sound levels that do not (1) exceed thresholds that inhibit 
communication or foraging activities, (2) result in temporary or 
permanent hearing loss to the whales, or (3) result in the abandonment 
of critical habitat areas. One commenter added that the sound-based PCE 
should be established so as not to cause chronic stress, including 
stress that is potentially sufficient to impair reproduction, or 
increase morbidity or the risk of mortality. They suggested that we 
evaluate whether a numeric standard for the sound PCE may be 
appropriate to determine when adverse modification of critical habitat 
occurs. However, if numerical standards are not supported by available 
data, they suggested we adopt proxies from other species. Lastly, 
several commenters noted that the Canadian government has identified 
acoustic degradation as one of the main threats to killer whales and 
the acoustic quality of the Southern and Northern Resident killer 
whales' critical habitat in Canada is legally protected by the Critical 
Habitat Protection Order (see http://www.registrelep-sararegistry.gc.ca/document/default_e.cfm?documentID=1756.)
    One commenter supports the petition, but cautioned that the 
establishment of in-water sound levels based on results from the work 
primarily from one researcher (Williams et al., 2009; 2013; 2014), 
which they still considered to be a work-in-progress and, based on 
another population of killer whales, could result in a disproportionate 
and distractive regulatory action against the boat-based whale watch 
industry.
    Another commenter asked us to reject the petition and believes 
revising critical habitat to include the coastal waters of Washington, 
Oregon, and California and/or adopting a sound PCE would compromise 
military readiness and national security by substantially limiting 
training, testing, and construction activities. Furthermore, the 
commenter stated the PCE criteria described in the petition are too 
vague for a complete assessment of potential

[[Page 9685]]

impacts to Navy activities, and they requested we clarify the details 
on the sound PCE (e.g., the frequency of sounds of concern, the 
duration and type of sounds and sound producing activity that would 
likely create an adverse effect, the sound level threshold, timing, the 
certainty to which an animal would need to be present to trigger 
restrictions, and implementation and enforcement techniques), in order 
to adequately assess the impacts to national security.
    Another commenter asked us to reject the petition and argued that 
sound is not a tangible feature contemplated by the ESA, but rather is 
an element that can be introduced into the aquatic environment that has 
the potential to have a direct effect on a species. They also argued 
the effects to a species from an action should be addressed in the 
section 7 jeopardy analysis, whereas the adverse modification analysis 
needs to address the potential impacts of the action on the habitat. 
With the exception of Cook Inlet beluga whales designated critical 
habitat that includes in-water noise below levels resulting in the 
abandonment of critical habitat areas (50 CFR 226.220), they note that 
designating sound as a PCE would be a departure from NMFS' prior 
practice of not including sound, even for species that can be affected 
by in-water sound (i.e., right whales). Lastly, they claim there is no 
factual basis to designate sound as a PCE and the petition does not 
narrowly define designated critical habitat. For example, they argue 
that no information in the petition shows where the specific areas 
containing the elements of the noise PCE are found, and the biological 
needs of the whales are not well known enough to determine specific 
marine areas with sound levels essential to their conservation.

Essential Features and Special Management Considerations

    Comment 5: Several commenters argued that Southern Resident killer 
whales are susceptible to threats outside their current protected 
habitat and the proposed area for critical habitat is in need of 
protection. The commenters noted that the whales feed on salmon, breed, 
and calve while in coastal waters. They highlighted that current 
Southern Resident killer whale critical habitat only protects summer 
and fall Chinook salmon stocks. One commenter stressed that the winter 
and spring runs of Chinook salmon along the outer coast represent a 
major food source for the whales and that these runs should also be 
protected. Because the whales appear to be spending less time in inland 
waters, specifically in spring months, commenters noted that the whales 
have likely increased their reliance on coastal salmon. Several of the 
commenters also highlighted that the whales are likely giving birth in 
these coastal waters in the autumn/winter months and may require more 
food for lactating mothers. Another commenter argued that the declining 
coast-wide availability of Chinook salmon reinforces the need to 
include this area as designated critical habitat to ensure the survival 
of the salmon on which the Southern Residents depend. In general, these 
commenters supported expanding critical habitat to encompass the 
whale's year-round range, which includes coastal waters of Washington, 
Oregon, and California, to ensure the conservation of all current 
foraging grounds and that expanding critical habitat will support 
sufficient prey to help the whales recover.
    In addition to the concern over prey availability, several 
commenters were concerned that the Southern Residents have acquired 
high levels of pollutants linked to California that may affect 
reproduction and the population decline. They also highlighted that 
because the whales occupy a highly industrialized area, foraging near 
outflow of large rivers that carry pollutants can directly affect the 
whale's health and prey. Additionally, they strongly urged us to ensure 
that the use and disposal of chemicals do not conflict with the whale's 
habitat. Improving water quality in the whales' coastal winter range 
requires special management and protection, which they argue is 
provided by designating the area as critical habitat.
    Nineteen commenters mentioned the general threats to Southern 
Resident killer whales from ships, and several of those commenters 
argued that special management is needed in offshore waters to address 
the threats from increasing ship traffic within the coastal range of 
the whales because traffic likely impacts killer whale foraging habits. 
In addition, they note an increase in port size or vessel traffic could 
also have a significant risk because it will increase the risk of 
collision. They urge us to revise critical habitat to ensure that 
decisions regarding the expansion of fossil fuel transportation and 
other maritime activities do not impact the killer whale's coastal 
range. Several commenters highlighted that the increase in development 
of alternative energy sources may also pose a possible passage risk to 
the killer whales, thereby requiring special management and oversight. 
Lastly, one commenter was concerned that migration of prey species due 
to ocean acidification and climate change could impose additional 
challenges for the whales.

12-Month Determination on Revision of Critical Habitat

    Since critical habitat for Southern Resident killer whales was 
designated in 2006, new information on habitat use has become 
available. As described in the critical habitat designation in 2006, we 
have been directly engaged in research activities to fill data gaps 
about coastal habitat use. Collecting information to better understand 
coastal distribution was also identified as a top priority in 
developing the Research Plan and Recovery Plan for Southern Resident 
killer whales (NMFS, 2008). In 2011, NMFS completed a 5-year review of 
the status Southern Resident DPS under the ESA (NMFS, 2011). In the 5-
year review, one of the recommendations for future actions was to 
increase knowledge of coastal distribution, habitat use and prey 
consumption to inform critical habitat determination. As identified in 
the petition and the public comments, the NWFSC and our partners have 
employed several techniques to collect information on coastal 
distribution and behavior, some of which include land-based sightings, 
passive acoustic monitoring, coastal research cruises, and satellite 
tag studies. In 2014, we released a 10-year report on research and 
conservation for Southern Resident killer whales, which summarized some 
of the major findings of this ongoing research on coastal habitat use 
and listed almost a dozen papers and reports that have become available 
since 2006. The report and a full list of publications are available on 
our Web page at: http://www.nwfsc.noaa.gov/news/features/killer_whale_report/index.cfm.
    Additional information since the 2006 critical habitat designation 
regarding effects of anthropogenic sound on marine mammals was also 
provided in the petition. The petition references new information on 
killer whale responses to vessel noise (Erbe et al., 2012; Holt, 2008; 
Holt et al. 2009, Williams et al., 2009, Williams et al., 2014), as 
well as a review of the acoustic quality of habitats for whale 
populations, including killer whales (Williams et al., 2013). Many of 
these publications are also listed in the recent 10-year report along 
with several other articles and reports from NWFSC projects and 
partnerships investigating vessel interactions and noise effects.

How We Intend To Proceed

    Based on the new information above, we intend to proceed with the 
petitioned action to revise critical

[[Page 9686]]

habitat for Southern Resident killer whales. Below we identify the 
steps we will take to ensure that we use the best available scientific 
and commercial data to inform any revision and meet the statutory 
requirements for designating or revising critical habitat.

Step 1: Complete Data Collection and Analysis

    While data from new studies are available in our files and have 
begun to address data gaps identified in the 2006 critical habitat 
designation, considerable data collection and analysis needs to be 
conducted to refine our understanding of the whales' habitat use and 
needs. Additional time will increase sample sizes and provide the 
opportunity to conduct robust analyses. While we have been actively 
working on gathering and analyzing data on coastal habitat use, these 
data and analyses are not yet sufficiently developed to inform and 
propose revisions to critical habitat as requested in the petition. 
Additional data and analyses will contribute to identification of 
biological and physical features--as well as areas in the Pacific Ocean 
that contain these features--to inform the identification of specific 
areas. In the petition, the Center for Biological Diversity recognized 
that we are continuing to gather and analyze data describing the 
Southern Residents' use of coastal and offshore waters and requested we 
refine the proposed revisions, as necessary, to include additional 
inhabited zones or to focus specifically on areas of concentrated use.
    There are several ongoing studies that will inform any revisions to 
critical habitat. The NWFSC and our partners are currently engaged in 
the following projects and we anticipate new data, analyses, reports 
and papers regarding coastal habitat use available over the next 2 
years. Below are descriptions of several ongoing data analysis 
projects, plans for collecting additional data, and projects that bring 
together and analyze data from a number of sources.
    Sighting networks: For many years, NMFS, the Center for Whale 
Research, and other partners have solicited sightings of killer whales, 
including the Southern Residents, along the coast. Prior to 2003, data 
on the whales' winter distribution and movement patterns were limited 
to a handful of sightings reported by a diverse group of ocean users. 
We will continue to solicit coastal sightings from the public and ocean 
users, and will also follow up on sighting information presented in the 
public comments on the 90-day finding. Although this work continues, in 
recent years we have used a variety of new technologies described below 
to supplement and expand the sighting network information.
    Acoustic recorders: The NWFSC has been deploying passive acoustic 
recorders in coastal waters to capture acoustic calls of marine 
mammals, and Southern Resident killer whales in particular, to better 
understand distribution and habitat use. Hanson et al. (2013) analyzed 
and reported results on coastal occurrence of Southern Residents using 
these recorders deployed in 2006 through 2011; however, there are 
additional years of data from 2012-2014 now available and undergoing 
analysis. In addition, this project will be expanded with new recorder 
deployments in 2015 to expand sample sizes with new data and a 
comprehensive analysis is expected in 2016.
    Satellite tagging: Since 2012, the NWFSC has deployed satellite 
tags on five Southern Resident killer whales, including one extended 
deployment on K25 that lasted for 93 days. The information gathered 
from satellite tagging will address the data gap in winter distribution 
identified in the Recovery Plan, as well as provide further information 
on habitat use. This technique has been identified as an important 
approach for obtaining information on habitat use by an independent 
science panel that assessed the impact of salmon fisheries on Southern 
Resident killer whales (Hilborn et al., 2012). Analysis of the existing 
data is currently underway and the program will continue with 
additional tag deployments planned for 2015-2016.
    Research cruises: NMFS' NWFSC has located Southern Resident killer 
whales off the Washington and Oregon coasts on six of seven NOAA 
cruises to study the whales since 2004. In 2013, researchers used 
satellite tagging information to follow the whales along the coast for 
eight days, allowing nearly continuous investigations of behavior and 
habitat use. Scientists also collected numerous prey and fecal samples 
to learn more about winter diet as well as oceanographic data to 
improve our understanding of important features of the whales' 
environment along the coast. The NWFSC has a research cruise planned 
for February 2015 and also plans to request ship time for a cruise in 
2016. In addition to further analysis of existing cruise data, cruise 
reports and additional analysis from 2015 and 2016 will be available in 
the next 2 years.
    Prey mapping: The NWFSC and Southwest Fisheries Science Center 
(SWFSC) are working together to investigate salmon distributions along 
the West Coast. This project will analyze coded wire tag data and other 
available data sources to build prey maps of spring, summer and fall 
distribution of salmon. Results from this analysis are anticipated in 
summer of 2015 and will inform consideration of prey as a potential 
essential feature of the whales' coastal habitat. In addition, results 
from this study will inform other projects, such as the individual 
based bioenergetics model described below.
    Individual based model: The SWFSC, NWFSC and other partners are in 
the process of developing a spatially-explicit individual based model 
(IBM) to explore the effects of variation in the abundance and 
distribution of salmon stocks and other coastal fishes on the net 
energy gain of Southern Resident killer whales during the non-summer 
months. The initial purpose of the IBM is to integrate available data 
within a single analytical framework, and support development of a 
research strategy for identifying critical habitat for Southern 
Resident killer whales off the coasts of Washington, Oregon, and 
California. Ultimately, the IBM will be used to investigate whether and 
how modeling critical habitat and prey resource management could be 
effective at minimizing the risk of energy balances falling below 
critical thresholds. Phase I of the project will include a literature 
review and a model framework vetted by the project partners. Completion 
of this phase is anticipated in July 2015. Pending continued funding, a 
second phase of the project will include a second generation model to 
investigate one or more specific hypotheses on the relationship between 
habitat/prey attributes and whale vital rates, which would be available 
in 2016.

Step 2: Identify Areas Meeting the Definition of Critical Habitat

    Pursuant to ESA section 3(5)(A), we must determine ``the 
geographical area occupied by the species at the time of listing.'' 
Next we identify physical or biological features essential to the 
conservation of the species. Agency regulations at 50 CFR 424.12(b) 
interpret the statutory phrase ``physical or biological features 
essential to the conservation of the species.'' The regulations state 
that these features include, but are not limited to, space for 
individual and population growth and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, and 
rearing of offspring; and habitats that are protected from disturbance 
or

[[Page 9687]]

are representative of the historical geographical and ecological 
distribution of a species. After determining the geographical area 
occupied by the Southern Residents, and the physical and biological 
features essential to their conservation, we would next identify the 
specific areas within the geographical area occupied by the species 
that contain the essential features. Specific areas meet the definition 
of critical habitat if they contain physical or biological features 
that ``may require special management considerations or protection.'' 
Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define ``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.''
    For the 2006 designation we reviewed the natural history, habitat 
use and habitat features in a Biological Report to assist with 
identifying areas that meet the definition of critical habitat. We will 
consider the previous designation and new information that has become 
available to evaluate areas eligible for critical habitat designation. 
An additional part of this evaluation is considering military areas 
that are precluded from designation because they are subject to 
Integrated Natural Resource Management Plans under the Sikes Act and 
provide benefits to the listed species.

Step 3: Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA requires us to use the best available 
data in designating critical habitat. It also requires that before we 
designate any particular area, we must consider the economic impact, 
impact on national security, and any other relevant impact. To 
determine the impact of designation, we can examine what the state of 
things would be with and without a critical habitat designation. For 
the 2006 designation we conducted an Economic Analysis to identify 
economic impacts and also coordinated with the Department of Defence to 
evaluate impacts of designation on national security.
    Under section 4(b)(2) we also identify the conservation benefits to 
the species of designating particular areas. The principal benefit of 
designating critical habitat is that ESA section 7 requires every 
Federal agency to ensure that any action it authorizes, funds, or 
carries out is not likely to result in the destruction or adverse 
modification of designated critical habitat. This complements the 
section 7 provision that Federal agencies ensure their actions are not 
likely to jeopardize the continued existence of a listed species. 
Another possible benefit is that the designation of critical habitat 
can serve to educate the public regarding the potential conservation 
value of an area.
    The next step in the 4(b)(2) analysis is to balance the benefits of 
designation against the benefits of exclusion and recommend any 
exclusions, if appropriate. We must also determine whether any 
exclusion will result in extinction of the species. For the 2006 
designation we completed a 4(b)(2) report that considered the benefits 
of designation and benefits of exclusions and we did exclude military 
areas based on national security impacts.

Step 4: Develop Proposed Rule for Public Comment

    Steps 1-3 will inform any proposal for revision of critical 
habitat. The underlying science of the decision would be required to 
undergo peer review according to the Office of Management and Budget 
Bulletin for Peer Review, implemented under the Information Quality Act 
(Public Law 106-554). Any proposed rule we develop will be published in 
the Federal Register and we will seek public comment. To allow for 
sufficient time to incorporate anticipated research results and new 
analysis and to conduct economic and 4(b)(2) analyses, we anticipate 
developing a proposed rule for publication in the Federal Register in 
2017.

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/esa_status.html

    Authority:  16 U.S.C. 1531 et seq.

    Dated: February 11, 2015.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-03378 Filed 2-23-15; 8:45 am]
BILLING CODE 3510-22-P