Endangered and Threatened Wildlife and Plants; Revision of Critical Habitat for the Southern Resident Killer Whale Distinct Population Segment, 41668-41698 [2021-16094]
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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 226
[Docket No. 210719–0149]
RIN 0648–BH95
Endangered and Threatened Wildlife
and Plants; Revision of Critical Habitat
for the Southern Resident Killer Whale
Distinct Population Segment
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
We, NMFS, issue a final rule
to revise the critical habitat designation
for the Southern Resident killer whale
(Orcinus orca) distinct population
segment (DPS) under the Endangered
Species Act (ESA) by designating six
additional coastal critical habitat areas
along the U.S. West Coast. Specific
newly designated areas along the U.S.
West Coast include 15,910 square miles
(mi2) (41,207 square kilometers (km2))
of marine waters between the 20-feet (ft)
(6.1-meter (m)) depth contour and the
656.2-ft (200-m) depth contour from the
U.S. international border with Canada
south to Point Sur, California. We have
excluded one area, the Quinault Range
Site (including a 10-km buffer around a
portion of the site), comprising 1,400.4
mi2 (3627 km2), from the critical habitat
designation because we have
determined that the benefits of
exclusion outweigh the benefits of
inclusion, and exclusion will not result
in extinction of the species.
DATES: This rule is effective September
1, 2021.
ADDRESSES: The final rule, maps, and
other supporting documents (Economic
Report, ESA Section 4(b)(2) Report, and
Biological Report) can be found on the
NMFS website at https://
www.fisheries.noaa.gov/action/criticalhabitat-southern-resident-killer-whale.
FOR FURTHER INFORMATION CONTACT:
Lynne Barre, NMFS West Coast Region,
206–526–4745; or Lisa Manning, NMFS,
Office of Protected Resources, 301–427–
8466.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
NMFS listed the Southern Resident
killer whale DPS as endangered under
the ESA in 2005 (70 FR 69903;
November 18, 2005). In 2006, NMFS
designated critical habitat for the
Southern Resident killer whale DPS in
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inland waters of Washington State (71
FR 69054; November 29, 2006). The
designated critical habitat consists of
three areas: (1) The Summer Core Area
in Haro Strait and waters around the
San Juan Islands, (2) Puget Sound Area,
and (3) the Strait of Juan de Fuca Area.
Together, these areas comprise
approximately 2,560 mi2 (6,630 km2) of
marine habitat.
The 2006 final rule designating
critical habitat identified three habitat
features essential to the conservation of
the DPS: (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.
On January 21, 2014, we received a
petition from the Center for Biological
Diversity (CBD) requesting revisions to
the critical habitat designation for the
Southern Resident killer whale DPS.
CBD requested we revise critical habitat
to include ‘‘inhabited marine waters
along the West Coast of the United
States that constitute essential foraging
and wintering areas,’’ specifically the
region between Cape Flattery,
Washington, and Point Reyes,
California, extending from the coast to
a distance of 47.2 mi (76 km) offshore.
On April 25, 2014, we announced in
our 90-day finding that the petition
presented substantial scientific
information indicating that a revision to
the current critical habitat designation
may be warranted and requested public
comments (79 FR 22933). Due to new
information available regarding habitat
use by Southern Resident killer whales,
we decided a revision to critical habitat
was warranted, and we announced our
intention to proceed toward a proposed
rule in the 12-month finding (80 FR
9682; February 24, 2015).
CBD filed a complaint in August 2018
with the U. S. District Court for the
Western District of Washington at
Seattle seeking an order from the Court
establishing deadlines for NMFS to
revise the Southern Resident killer
whale critical habitat designation. A
court-approved settlement agreement
was filed on April 17, 2019 (Center for
Biological Diversity v. National Marine
Fisheries Service, 2:18–cv–01201–RSM
(W.D. Wash.)). The settlement
agreement stipulated that NMFS must
submit a proposed rule revising critical
habitat to the Office of the Federal
Register by September 6, 2019.
Based on the recommendations
provided in the Draft Biological Report,
the Initial Regulatory Flexibility
Analysis (IRFA) and ESA section 4(b)(2)
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analysis (which considers exclusions to
critical habitat based on economic,
national security and other relevant
impacts), we published a proposed rule
on September 19, 2019 (84 FR 49214),
to designate marine waters between the
20-ft (6.1-m) depth contour and the
656.2-ft (200-m) depth contour from the
U.S. international border with Canada
south to Point Sur, California, as
Southern Resident killer whale critical
habitat. In accordance with the
definition of critical habitat under the
ESA, this area contained physical or
biological features essential to the
conservation of the species and which
may require special management
considerations or protections. The
proposed rule included background
information on Southern Resident killer
whale biology and habitat use. That
background information is not included
here but can be accessed by referring to
the proposed rule (84 FR 49214;
September 19, 2019) and supporting
documents (at https://
www.fisheries.noaa.gov/west-coast/
endangered-species-conservation/
critical-habitat-southern-resident-killerwhales).
In the proposed rule, we described the
physical or biological features essential
to the conservation of Southern
Resident killer whales 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. We
requested public comments through
December 18, 2019, and held three
public hearings. For a complete
description of our proposed action, we
refer the reader to the proposed rule (84
FR 49214; September 19, 2019). The
proposed rule and supporting
documents included information on the
natural history of Southern Resident
killer whales, which has been updated
in the Final Biological Report (NMFS
2021a).
Statutory and Regulatory Background
for Critical Habitat Designations
The ESA defines critical habitat under
section 3(5)(A) as the (1) specific areas
within the geographical area occupied
by the species at the time it is listed, on
which are found those physical or
biological features essential to the
conservation of the species and which
may require special management
considerations or protection; and (2)
specific areas outside the geographical
area occupied by the species at the time
it is listed, upon a determination by the
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Secretary of Commerce (Secretary) that
such areas are essential for the
conservation of the species (16 U.S.C.
1532(5)(A)). Conservation is defined in
section 3(3) of the ESA as to use, and
the use of, all methods and procedures
which are necessary to bring any
endangered species or threatened
species to the point at which the
measures provided pursuant to this Act
are no longer necessary (16 U.S.C.
1532(3)). Section 3(5)(C) of the ESA
provides that, except in those
circumstances determined by the
Secretary, critical habitat shall not
include the entire geographical area
which can be occupied by the
threatened or endangered species. Our
regulations provide that critical habitat
shall not be designated within foreign
countries or in other areas outside U.S.
jurisdiction (50 CFR 424.12(g)).
Section 4(a)(3)(B) prohibits
designating as critical habitat any lands
or other geographical areas owned or
controlled by the Department of Defense
(DOD) or designated for its use, that are
subject to an Integrated Natural
Resources Management Plan (INRMP)
prepared under section 101 of the Sikes
Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan
provides a benefit to the species for
which critical habitat is designated.
Section 4(b)(2) of the ESA requires us
to designate critical habitat for
threatened and endangered species on
the basis of the best scientific data
available and after taking into
consideration the economic impact, the
impact on national security, and any
other relevant impact, of specifying any
particular area as critical habitat.
Pursuant to this section, the Secretary
may exclude any area from critical
habitat upon determining that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat. However, the
Secretary may not exclude areas if this
will result in the extinction of the
species.
Once critical habitat is designated,
section 7(a)(2) of the ESA requires
Federal agencies to ensure that actions
they fund, authorize, or carry out are not
likely to destroy or adversely modify
that habitat (16 U.S.C. 1536(a)(2)). This
requirement is in addition to the section
7(a)(2) requirement that Federal
agencies ensure their actions are not
likely to jeopardize the continued
existence of ESA-listed species.
Specifying the geographic location of
critical habitat also facilitates
implementation of section 7(a)(1) of the
ESA by identifying areas where Federal
agencies can focus their conservation
programs and use their authorities to
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further the purposes of the ESA. Critical
habitat requirements do not apply to
citizens engaged in actions on private
land that do not involve a Federal
agency. However, designating critical
habitat can help focus the efforts of
other conservation partners (e.g., state
and local governments, individuals, and
non-governmental organizations).
Summary of Changes From the
Proposed Rule
We evaluated the comments and
information received from the public
during the public comment period and
at public hearings. Based on our
consideration of these comments and
information and our reconsideration of
issues discussed in the proposed rule,
the final rule and supporting documents
include one substantive change to the
exclusions for national security impacts,
as well as inclusion of clarifications and
new information and references in
response to public comments. Below we
briefly summarize these changes and
clarifications, which are discussed in
further detail in the relevant responses
to comments and other sections of this
final rule.
After considering public comments
received and the best scientific
information available, the final rule
reduces the extent of the excluded 10km buffer around the Quinault Range
Site (QRS) where the QRS overlaps with
the Olympic Coast National Marine
Sanctuary (OCNMS).
In accordance with section 4(b)(2) of
the ESA, our proposed rule excluded
the QRS based on national security
impacts. It also excluded a 10-km buffer
around the site, calculated by the Navy
based on the full extent to which noiserelated impacts on fish species are
estimated to occur from the use of the
largest explosives the Navy foresees
testing within the QRS. We received
numerous public comments opposing
the exclusion and one comment
pointing out that part of the QRS
overlaps with the OCNMS.
After considering these comments and
requesting additional information from
the Navy regarding planned activities in
the OCNMS, we have reduced the extent
of the 10-km buffer being excluded,
where the QRS overlaps with the
OCNMS. As detailed in the Section
4(b)(2) Report (NMFS 2021b), we found
the benefits of designating critical
habitat for Southern Resident killer
whales within this portion of the buffer
are not outweighed by national security
impacts of including that portion. This
change represents a reduction in the
size of the area being excluded from
critical habitat compared to the
proposed rule. The proposed exclusion
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area encompassed approximately
1,687.9 mi2 (4,371.5 km2) of potential
critical habitat, and the final exclusion
area encompasses 1,400.4 mi2 (3627
km2) of potential critical habitat.
In addition to the one substantive
change in the final rule, we also
updated our supporting documents with
additional information and
clarifications based on the public
comments, including updates related to
sound, inclusion of newly available
references, and clarifications related to
our economic analysis. A number of
comments requested that we include
sound as a fourth essential feature or
more explicitly describe how
communication space is encompassed
within the prey and passage essential
features. After carefully considering the
studies cited by commenters seeking to
include sound as a fourth essential
feature, we are still not able to identify
specific in-water sound levels or
thresholds for communication,
behavioral or displacement impacts on
Southern Resident killer whales (as
requested by CBD) so we consider
effects of sound qualitatively (see
further explanation in section ‘Physical
and Biological Features Essential to
Conservation’ and in the Biological
Report, NMFS 2021a, section V.B.4).
Because potential impacts of sound are
already addressed through qualitative
section 7 analyses of the prey and
passage features, as well as analyses of
effects of sound on individual whales
themselves, we have not included
sound as a separate feature. However, in
response to the concerns expressed in
the comments, we have added more
detail to the Final Biological Report
(NMFS 2021a, sections V.B.2, V.B.3, and
V.B.4) to clarify that the effects of
anthropogenic noise on communication
and social behavior are and will
continue to be evaluated through the
prey and passage essential features, as
well as analyses of effects to individual
whales. Activities producing sound that
impact Southern Resident prey
availability (including access to prey
and impacts to communication for prey
sharing) or safe and unrestricted passage
(including passage necessary for social
behavior) are considered activities that
may require special management
considerations under section 7 of the
ESA. Finally, we also updated the Final
Biological Report to include information
on how this approach is compatible
with the approaches used to address
sound for other listed species: Cook
Inlet beluga whale DPS, the Main
Hawaiian Islands insular false killer
whale DPS, and listed humpback whale
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DPSs. Also, see the response to
comment 8 regarding sound.
Multiple commenters provided
information and citations for recent
scientific studies not included in the
proposed rule. In response, we have
added to the Final Biological Report
(NMFS 2021a) descriptions of and
reference to multiple new studies that
were published since the publication of
the proposed critical habitat rule.
The Final Economic Analysis (FEA)
in the Final Economic Report (IEc 2021)
includes updates and clarifications from
the draft version in response to public
comments. Specifically, the analysis
incorporates new information made
available after development of the Draft
Economic Analysis (DEA) on the Pacific
Fishery Management Council (PFMC)’s
ad-hoc Southern Resident Killer Whale
Working Group, and publication of its
Final Draft Risk Assessment for Salmon
Fishery Management Plan (FMP)
Impacts to Southern Resident Killer
Whales (PFMC 2020). In response to
public comment, the Sacramento
District has been added to the list of
United States Army Corps of Engineers
(USACE) districts that manage activities
that may be affected by the expansion
(section 2.10, IEc 2021). The FEA (IEc
2021) also incorporates a Final
Regulatory Flexibility Analysis (FRFA)
and updates the timeframe and dollar
year of the analysis to reflect the present
schedule of the final rule. Therefore,
differences in anticipated costs between
the DEA and the FEA reflect an update
to the timeframe of the analysis and the
dollar year, as opposed to changes in the
costs of consultation. No substantive
changes were made between the IRFA
and the Final Regulatory Flexibility
Analysis (FRFA) as changes
incorporated in the final rule do not
affect the economic analysis and
conclusions.
Summary of Comments and Responses
We solicited comments on the
proposed designations and exclusions
as well as the documents supporting the
proposed rulemaking. To facilitate
public participation, the proposed rule
was made available on our website and
comments were accepted via standard
mail and through the Federal
eRulemaking portal. We also solicited
public comments at three public
hearings, which were held on November
4, 2019, in Santa Cruz, CA; November
5, 2019, in Newport, OR; and November
6, 2019, in Seattle, WA. The public
comment period closed on December
18, 2019.
We received 218 unique comments,
including 180 in support, 22 opposed,
and 16 that provided information and/
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or requested changes to the rule without
stating support or opposition. We have
considered all public comments, and
provide responses to all substantive
issues raised by commenters that are
relevant to the proposed revision of
Southern Resident killer whale critical
habitat. We have not responded to
comments or concerns outside the scope
of this rulemaking. Comments were
received from a range of sources
including: Global and local
environmental non-profit groups,
fishing industry associations, local and
state government, state agencies, other
Federal agencies (e.g., the Marine
Mammal Commission, NOAA’s National
Ocean Service National Marine
Sanctuaries Program, USACE), merchant
shipping associations, trade
associations, scientists and scientific
groups, university students, elementary
school students, educational groups,
aquariums, legal groups, and individual
citizens. The majority of individual
concerned citizens were in support of
the expanded critical habitat
designation. The Marine Mammal
Commission generally agreed with
NMFS’s determinations and supports
the geographic boundaries we proposed.
Criteria for Designating Critical Habitat
Comment 1: One commenter felt that
the revised critical habitat was not
prudent, stating that it would not result
in any new conservation measures or
protections and, therefore, would not
provide benefits to the species. The
commenter referred to 16 U.S.C.
1533(a)(3) to argue that NMFS must
demonstrate that designation of critical
habitat designation is prudent, and cited
50 CFR 424.12(a)(1)(ii) (subsequently
revised in 2019) to argue that
designation is not prudent when it
‘‘would not be beneficial to the
species.’’
Response: The ESA requires that
NMFS designate critical habitat to the
maximum extent prudent and
determinable (16 U.S.C. 1533(a)(3)).
Contrary to the interpretation of the
commenter, it does not require that
NMFS demonstrate prudence as a
condition for designating critical
habitat.
The proposed and final rules to revise
critical habitat for Southern Resident
killer whales follow previous ESA
implementing regulations, as the most
recent revisions to the implementing
regulations, which became effective on
September 26, 2019, only apply to
classification and critical habitat rules
for which a proposed rule was
published after September 26, 2019 (see
84 FR 45020; August 27, 2019). The
proposed rule for the revision to
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Southern Resident killer whale critical
habitat (84 FR 49214) was published on
September 19, 2019. With respect to
critical habitat designations, the
previous ESA implementing regulations
at 50 CFR 424.12(a)(1)(ii) stated that a
designation of critical habitat is not
prudent when such a designation is not
beneficial to the species. In determining
if designation would not be beneficial,
NMFS may consider, among other
factors, whether the present or
threatened destruction, modification, or
curtailment of the habitat or range of a
species is not a threat to the species, or
if any areas meet the definition of
critical habitat.
In general, ‘‘not prudent’’
determinations are uncommon, because
most species are listed under ESA, at
least in part, due to impacts to their
habitat or curtailment of their range (see
81 FR 7413; February 11, 2016 response
to Comment 61), and because there is an
inherent benefit of critical habitat
designation. Most ‘‘not prudent’’
findings are a result of a determination
that designating habitat would increase
harm or threats to the species, such as
species highly prized for collection
where identifying locations would
render the species vulnerable to
collection. Southern Residents killer
whales were listed as endangered, in
part, due to modification to their habitat
from vessel traffic, contaminants, and
changes to prey availability (see 70 FR
69903; November 18, 2005). If areas do
not meet the definition of critical
habitat, it is also permissible to not
designate critical habitat; however,
specific areas within the geographical
area occupied by Southern Resident
killer whales that we are designating, do
meet the definition of critical habitat
(i.e., they contain the essential features
and may require special management
considerations or protection).
The commenter’s statement that the
proposed critical habitat would not
result in any new conservation
measures or protections refers to our
findings in the DEA (IEc 2019) that there
are no particular projects or activities
for which NMFS considers it likely that
section 7 consultation on coastal critical
habitat for the killer whales would
result in different conservation efforts
than section 7 consultation without the
revised critical habitat. However, this
finding does not mean the critical
habitat designation provides no benefits
to the species. We find there are benefits
and disagree with the commenter. First,
although we do not consider additional
conservation efforts from section 7
consultations to be likely, we cannot
rule out that some modifications may
result from section 7 consultations, and
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such potential modifications would
provide conservation value to the
species. Secondly, although the direct
benefit that the statute provides is
through section 7 consultation,
designating critical habitat may carry
additional benefits to the species
beyond the protections from section
7(a)(2) consultation. Specifically, these
additional benefits, outlined in the Final
ESA Section 4(b)(2) Report (NMFS
2021b), include facilitating
implementation of section 7(a)(1) of the
ESA by identifying areas where Federal
agencies can focus their conservation
programs and use their authorities to
further the purposes of the ESA.
Furthermore, other additional benefits
include the generation of more detailed
information about the status of Southern
Resident killer whales, increasing
education and awareness of parties
involved in section 7 consultations and
the public, which can lead to activities
that benefit the killer whales or their
habitat.
We continue to find that the
expanded critical habitat is prudent.
Geographical Areas Occupied by the
Species
Comment 2: We received several
comments regarding the proposal to
designate critical habitat in waters
deeper than 20 ft (6.1 m) based on
extreme high water. Some commenters
felt that we should include waters
shallower than 20 ft (6.1 m) because
nearshore areas support killer whale
prey, making them essential to the
conservation of Southern Resident killer
whales. The importance of these
habitats for salmon and forage fish was
the predominant argument by
commenters for including shallow
waters as critical habitat for Southern
Resident killer whales.
Commenters generally acknowledged
that many nearshore areas are outside
the geographical area occupied by the
species, but viewed them as essential for
the conservation of the species because
they provide critical habitat to the
Southern Resident food chain, including
juvenile salmon and their forage fish
prey. Two commenters argued the
unoccupied nearshore areas should be
designated as critical habitat because
they contain the essential feature of prey
species (of sufficient quantity, quality
and availability to support individual
growth, reproduction and development,
as well as overall population growth).
One believed that limiting critical
habitat to occupied areas is not adequate
to ensure the conservation of the
species, while another felt that
designating these areas as critical
habitat would help support salmon and
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killer whale resilience to climate change
impacts. While most comments on this
topic requested the inclusion of all
nearshore areas in the critical habitat
designation, a few requested the
inclusion of just those nearshore, as
well as estuarine, and freshwater areas
associated with Chinook salmon rivers
for stocks identified by NMFS and the
Washington Department of Fish and
Wildlife (WDFW) as priority stocks for
Southern Resident killer whales.
One commenter argued that killer
whales do occupy the waters shallower
than 20 ft in depth, citing observational
data from shore-based sightings of
Southern Resident killer whales in the
San Juan Islands foraging and
socializing in shallow waters when
transiting the area. The commenter
argued that these waters are accessible
to the killer whales at high tide, and that
the shallow waters may constitute
‘‘active space’’ around individual
whales in which they can interact with
each other and their prey. They argued
that nearshore waters should be
designated as critical habitat because
activities taking place in nearshore
waters could adversely modify adjacent
deeper waters within the proposed
critical habitat. Lastly, for the purposes
of regulatory simplicity, one commenter
sought to align the critical habitat
boundary with the high water line
regulatory boundary used by the
USACE.
Response: The final critical habitat
designation is consistent with the
proposed rule and does not include
waters shallower than 20 ft (6.1 m)
based on mean high water. Similar to
the critical habitat for inland waters,
there are little to no data to support that
the whales use the shallow areas
regularly, or could physically access
some areas, even during high tide
conditions.
The limited information providing
new observations of Southern Resident
killer whale use of shallow waters in the
San Juan Islands we received is not
sufficient to consider all shallow areas
as occupied or essential to the
conservation of Southern Resident killer
whales. The observations provided
represent rare occurrences and were
located in inland waters rather than
outer coastal waters. Also, based on data
from four satellite-tagged Southern
Resident killer whales, only less than 1
percent of the whales’ outer coastal
locations were in depths less than 6 m
(Northwest Fisheries Science Center
(NWFSC) unpubl. data, see the
Biological Report, NMFS 2021a).
Satellite-based locations are not exact,
and we don’t know the tidal conditions
for these observations. We are not
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revising the inland waters critical
habitat designation at this time, and
neither the bathymetry of the San Juan
Islands nearshore areas nor the unique
observations of Southern Resident killer
whales in these areas would be
representative of outer coastal areas.
Regulatory alignment with USACE or
other management boundaries is not a
basis for designating critical habitat in
unoccupied areas. Additionally,
extreme high water data for delineating
boundaries within geographic
information system (GIS) software along
the coast was not readily available for
many locations. Therefore, similar to the
proposed rule, we continue to use the
20-ft (6.1-m) depth relative to mean high
water as the eastern boundary of coastal
critical habitat.
Not designating waters shallower than
20 ft (6.1 m) (based on mean high water)
as critical habitat does not preclude
consultation on activities that occur in
these shallow nearshore or inland
freshwater areas. ESA section 7
requirements that Federal agencies
ensure their actions are not likely to
destroy or adversely modify critical
habitat applies equally to actions
occurring outside of designated critical
habitat as to actions occurring within
designated critical habitat. Furthermore,
specific inland freshwater areas are
designated as critical habitat for ESAlisted salmon runs (70 FR 52487;
September 2, 2005 and 70 FR 52629;
September 2, 2005), including certain
priority Chinook runs (NMFS and
WDFW 2018), and are, therefore, subject
to section 7 consultations.
Specific Areas
Comment 3: Many commenters
expressed support for the proposed
geographic extent of the revised critical
habitat in U.S. ocean waters from Cape
Flattery, Washington, south to Point
Sur, California. Two commenters felt
that the coastwide designation of critical
habitat was too broad, and sought to
limit the spatial extent of the
designation to areas of regular or
consistent use. They disputed the
southern and western boundaries and
proposed alternative limitations to the
boundaries of the specific areas,
including by time and by the locations
of primary essential features. Other
commenters requested inclusion of
additional areas because they felt the
current proposed areas were not
sufficient to conserve the whales.
One commenter referred to 16 U.S.C.
1532(5)(C), noting ESA directives that
critical habitat not include the entire
geographical area which can be
occupied by the listed species, except in
special circumstances. They referred to
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the 1978 amendments to the ESA,
stating that congressional intent was to
curtail the practice of designating
critical habitat throughout the entire
range of a species. They contended that
the proposed critical habitat revision for
Southern Resident killer whales is
overly expansive because it includes
most of the geographic area occupied by
the species.
Two commenters felt that critical
habitat for Southern Resident killer
whales should only include those areas
within the species’ range that are
occupied on a regularly occurring or
consistent basis. They contested the
western and southern boundaries on the
basis that areas more than 150 m deep
and south of Cape Falcon are not used
frequently enough by the Southern
Resident killer whales to justify the
designation.
Commenters expressed concerns that
critical habitat designation would result
in fisheries closures year-round to
protect areas occupied by the Southern
Resident killer whales only at certain
times. They requested that the
designation be temporally limited to
specific periods when Southern
Resident killer whales are present in the
area, and that adverse modification only
be considered for activities that affect
the whales during the time that they
occupy the areas.
One commenter sought to limit the
boundaries of the specific areas based
on the spatial extent of each area’s
primary essential feature. The
commenter maintained that because we
identified a primary essential feature in
each specific area, the designation of
critical habitat should be limited to only
those spaces within each specific area
where the primary essential feature is
found.
Response: This critical habitat
designation is consistent with our
obligations under the ESA. We are not
designating the entire geographical area
that can be occupied by this species, nor
are we designating all areas in which
Southern Resident killer whales occur.
In regards to designation of unoccupied
habitat areas, we considered the best
available information, and we are not
aware of any unoccupied areas that
meet conservation needs of Southern
Residents or are essential for
conservation (see also response to
Comment 2 regarding depth and
response to Comment 5 regarding Hood
Canal for additional information on
areas that commenters requested
including). Therefore, we have not
included any unoccupied areas in the
critical habitat designation. Some
Alaskan waters are considered to be
within the geographic area occupied by
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Southern Resident killer whales (see
‘‘Distribution’’ section in the Final
Biological Report, NMFS 2021a), but we
are not designating any areas in Alaska
because there is only one sighting in
this region and there is insufficient
information about the whales’
distribution, behavior, and habitat use
in these areas. Also, there are limited
sightings of Southern Resident killer
whales at shallow depths, outside of the
eastern, nearshore critical habitat
boundaries or beyond the 200-m shelf
isobath, outside of the western, offshore
critical habitat boundaries (see Specific
Areas within the Geographical Area
Occupied by the Species and in NMFS
2021a), so the species is able to occupy
some areas closer to or farther from
shore than we are designating. Finally,
Southern Resident killer whales can and
do occupy Canadian waters. However,
those areas are not included in the
designation because they are outside of
U.S. jurisdiction. Therefore, this revised
critical habitat does not include all areas
that can be occupied by Southern
Resident killer whales.
Joint NMFS–U.S. Fish and Wildlife
Service (USFWS) implementing
regulations clarify that the geographical
area occupied by the species may
include those areas used throughout all
or part of the species’ life cycle, even if
not used on a regular basis (e.g.
migratory corridors, seasonal habitats,
and habitats used periodically, but not
solely by vagrant individuals; 50 CFR
424.02). They also provide that we
determine specific areas that contain the
physical or biological features essential
to the conservation of the species within
the geographical area occupied by the
species (50 CFR 424.12(b)(1)(iii)). In
accordance with these regulations, the
areas we are designating as critical
habitat, including the waters beyond
150 m in depth and at the southern end
of the range in California, are both
occupied and contain physical or
biological features that are essential to
the conservation of the species.
In our satellite tracking data, 7
percent of occurrences were beyond 150
m in depth (NMFS unpublished data,
see the Biological Report, NMFS 2021a).
These data indicate short duration but
regular use of the area by the whales.
We acknowledge that satellite-tagged
whales swam within a narrower northsouth corridor off the coast of California
compared to the broader corridor when
they were off the coasts of Washington
or Oregon (Final Biological Report,
NMFS 2021a, section VI.E.). However,
using the 200 m depth contour
consistently along the West Coast
reflects the majority of the whale habitat
use data and likely reflects the
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bathymetric conditions important to
conservation including supporting life
functions, such as foraging. In addition,
establishing different contour lines as
boundaries for different specific areas
would make implementation
unnecessarily complex. As in the
proposed rule, we delineate the western
boundary of critical habitat in coastal
waters at the 200 m depth contour.
With regards to the southern extent of
critical habitat in California, we
provided scientific data on Southern
Resident sightings in this region in the
Draft Biological Report (NMFS 2019a,
section IV.A.). The sightings in Area 6
(southernmost coastal critical habitat
area) around Monterey Bay have been
periodic across multiple years (nearly
annual from 2007–2011), indicating
consistent use of the area from year to
year (Hanson et al. 2017, Draft and Final
Biological Reports, section VI.F.).
Furthermore, given the effort it takes for
the Southern Resident killer whales to
get to this extreme end of their range,
recurring use of the area suggests it has
special value to the whales and that
accessing the area is important to meet
their needs. Therefore, the final rule is
consistent with the proposed rule and
delineates the southern boundary of
critical habitat in coastal waters at Point
Sur (36°18′00″ N).
Designation of critical habitat does
not establish a refuge or sanctuary for
the species or automatically close areas
to specific activities, but rather it guides
Federal agencies to consult with NMFS
if their actions may affect critical
habitat. In the case of commercial
fisheries, as we explain in our responses
to Comments 15–17 regarding Economic
Impacts and in the FEA (IEc 2021), we
consider it unlikely that the designation
of critical habitat would result in
different fishery management measures
than would already be implemented for
the protection of Southern Resident
killer whales, endangered salmon, and
other listed species.
Critical habitat is designated by area,
based on where features are present in
occupied areas (50 CFR 424.12(b)),
rather than time, so we cannot assign a
season or other temporal boundary to
the designation. However, we can
consider the timing of the whales
presence in an action area in our section
7 consultations. In these consultations,
our analysis of a Federal action’s effects
on critical habitat will consider the
timing of a Federal action and its
overlap with time periods in which
Southern Resident killer whales are
likely to be in the area in order to
determine how conservation value of
the habitat would be impacted by the
Federal action.
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In accordance with ESA section
3(5)(A), we delineated specific areas
within the geographical area occupied
by the species where the essential
physical or biological features (PBFs)
are found. Although we identify a
primary essential feature in each
specific area, all three PBFs are essential
and present in all specific areas.
Potential effects to all three habitat
features are subject to evaluation
through section 7 consultations. As
such, we are not reconsidering the
boundaries of specific areas based only
on the primary PBFs.
Comment 4: One commenter noted
that the proposed critical habitat
includes areas of Juan de Fuca Canyon
that are deeper than the 200 m depth
contour, and felt that these areas should
be excluded from the designation
because they are outside of the depth
band used to define critical habitat.
Response: As detailed in the Draft and
Final Biological Reports (NMFS 2019a,
2021a), the 656.2-ft (200-m) isobath was
chosen as the western (offshore)
boundary of the proposed critical
habitat. The narrow Juan de Fuca
canyon runs roughly southeast to
northwest, bisecting the newly
designated critical habitat. Here, the
western boundary of the critical habitat
aligns with the 200-m isobath to the
north and south of the canyon, crossing
the deeper mouth of the canyon. The
canyon’s complex bathymetry, with
many islands and inlets where the
seafloor is shallower than 200 m, makes
strict adherence to a 200-m cutoff
impractical. More importantly, as noted
in the Draft and Final Biological
Reports, the Strait of Juan de Fuca
(including the deeper waters of the
canyon) is a high use area for the
Southern Resident killer whales.
Portions of the canyon below 200 m in
depth are included in the existing
critical habitat designation for inland
waters, making the new critical habitat
consistent with the previous
designation. Therefore, the entire area is
included in the designated critical
habitat.
Comment 5: One commenter
requested that we include Hood Canal
in the critical habitat designation. The
commenter acknowledged that Southern
Resident killer whales have not been
documented in Hood Canal since 1995,
but argued that the canal could be
considered either previously occupied
habitat essential to recovery of the
species or occupied habitat on the basis
that whales alive at the time of listing
had been documented in the canal. The
commenter also contended that the
currently occupied habitat is inadequate
for conservation, making it necessary to
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protect and restore areas that were
previously occupied but are now
unoccupied areas (even those
unoccupied at the time of listing). Also,
the commenter felt that efforts to
improve salmon abundance in the canal
would improve the quality of the habitat
and result in conservation benefits
when or if Southern Resident killer
whales re-enter the canal.
Response: Similar comments were
submitted in response to the 2006
proposed rule to designate critical
habitat for inland waters (71 FR 34571;
June 15, 2006). As described in the 2006
final rule’s response to comments (71
FR 69054; November 29, 2006), at that
time we considered the best available
data and concluded that we lacked
sufficient information to either consider
Hood Canal as occupied at the time of
listing, or to determine that additional
unoccupied habitat in Hood Canal was
essential for the conservation of the
species. With respect to the proposed
revision to the critical habitat, the
commenter did not provide new
information beyond what was
previously available, and we have found
no additional evidence to consider
Hood Canal as either occupied at the
time of listing or essential for the
conservation of the species.
Section 3(5)(A) of the ESA defines
critical habitat as areas either occupied
or not occupied by the species at the
time that it is listed. For this revision to
critical habitat we considered the best
available information on killer whale
distribution and, similar to our
conclusion in 2006, we do not have
sufficient data to consider Hood Canal
as occupied by the species at the time
of listing, nor are there available data
supporting that this area is currently
occupied by the species. In regards to
designation of unoccupied habitat areas,
we considered the best available
information, and we are not aware of
any unoccupied areas, including Hood
Canal, that meet conservation needs of
Southern Residents or are essential for
their conservation. Therefore, we are not
designating Hood Canal as either
occupied or unoccupied critical habitat.
If the whales do return to Hood Canal
in response to increasing populations of
prey species, we will continue to work
with the local community to gather
information and reevaluate the
importance of Hood Canal as Southern
Resident killer whale habitat.
Comment 6: Two commenters
opposed the designation of Southern
Resident killer whale critical habitat in
Southeast Alaska. Another commenter
urged NMFS to continue gathering
information about the Southern
Resident killer whale’s use of Alaskan
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waters to inform potential expansion of
critical habitat in the future.
Response: We did not propose and are
not designating areas in Southeast
Alaskan waters because of the limited
information about the whales’
distribution, behavior, and habitat use
in these areas. NMFS continues to
evaluate any reported sightings of killer
whales in Alaska for matches to the
Southern Resident killer whale DPS.
Unoccupied Areas
Comment 7: One commenter
requested that we consider further
expanding the area designated as critical
habitat to account for potential impacts
from climate change. The commenter
felt that we had not analyzed the best
available science on potential climate
change impacts before concluding that
insufficient evidence exists to designate
unoccupied areas as critical habitat.
Response: Contrary to the
commenter’s claims, we thoroughly
considered all available evidence
regarding the potential impacts of
climate change on Southern Resident
killer whales and presented these
findings in the Draft Biological Report
(NMFS 2019a). Our guidance provides
that ‘‘when designating critical habitat,
NMFS will consider proactive
designation of unoccupied habitat when
there is adequate data to support a
reasonable inference that the habitat is
essential for the conservation of the
species because of the function(s) it is
likely to serve as climate changes’’
(NMFS 2016). At this time, there exists
very little information regarding the
potential impacts of climate change on
the distribution and habitat use of
Southern Resident killer whales over
the longer-term, including whether or
how the geographic areas occupied by
the species might change. The
commenter did not cite any additional
research or information that would
improve our understanding of
unoccupied areas that would likely
become essential for the conservation of
the Southern Resident killer whales as
climate changes. Thus, there remains
insufficient evidence to identify
unoccupied areas based on potential
impacts from climate change. As noted
in the Biological Report, it will be
important to continue monitoring
Southern Resident killer whales and
their prey to evaluate responses to
climate change and ensure appropriate
habitat protections.
We also note that we have the
authority to revise critical habitat
designations as appropriate and in light
of new information, which provides a
mechanism for addressing and
incorporating changing understandings
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of the species’ use of new areas over
time (16 U.S.C. 1533(a)(3)(A)(ii)).
Essential Features
Comment 8: A number of
commenters, including those from the
Marine Mammal Commission and the
state of Washington, requested that we
include sound as a fourth essential
feature. These commenters pointed out
that killer whales rely on sound to
navigate, forage, mate, avoid predators,
and communicate with one another, and
emphasized the impacts of
anthropogenic noise on the whales.
Several commenters argued that there
now exists sufficient information to
support including sound as an essential
feature, and suggested we consider new
science that has emerged since the 2006
designation, and were concerned that
considering sound via the prey and
passage essential features does not
sufficiently address communication
space for social behavior, which they
pointed out is fundamental to motheroffspring bonding, pod cohesion, and
ultimately the health and recovery
potential of the DPS. One commenter
maintained that by excluding sound as
an essential feature, we fail to determine
whether sound may require special
management considerations or
protections. Others were concerned that
military activities, specifically would
not be adequately addressed. Several
commenters emphasized that if sound is
not included as an essential feature,
then the rule should describe more
explicitly how communication space is
encompassed within the prey and
passage essential features.
Some commenters felt that we did not
adequately justify the apparent
inconsistency between the approach for
Southern Resident killer whales and the
approach we took in the critical habitat
designations for two other ESA-listed
odontocetes in U.S. waters: The Cook
Inlet beluga whale DPS and the Main
Hawaiian Islands insular false killer
whale DPS, which include sound as a
feature or a characteristic of a feature.
Several of these commenters also
mentioned Canada’s inclusion of sound
as an element of critical habitat for
Southern Resident killer whales in
Canadian waters. They felt the
approaches were contradictory, and
asked for clarification to reconcile the
differences.
One commenter stated their support
for our determination in the proposed
rule not to include sound as a fourth
essential feature, noting the lack of data
to support quantitative thresholds. The
commenter felt that the effects of sound
on the whales are more appropriately
considered through the existing
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procedures for section 7 consultations
and Marine Mammal Protection Act
(MMPA) incidental take authorizations.
Response: As stated in the proposed
rule, we considered the new
information on killer whale responses to
anthropogenic noise and the acoustic
quality of habitats for whale populations
that has become available since
publication of the 2006 critical habitat
designation for Southern Resident killer
whales. Much of this new research was
presented in the Draft Biological Report
supporting the critical habitat proposal
and we have incorporated additional
publications submitted through the
comment period or that have become
available in the last year in the Final
Biological Report (NMFS 2021a)
supporting the final rule. Contrary to the
concerns of some commenters, we did
not ignore the new research, which
enhances our ability to consider the
effects of sound on the whales’ habitat
through the prey and passage essential
features, as well as impacts of sound in
our analyses of effects to individual
whales through section 7 consultations.
After carefully considering the studies
cited by commenters seeking to include
sound as a fourth essential feature, we
are still not able to identify specific
quantitative in-water sound levels or
thresholds for communication,
behavioral or displacement impacts on
Southern Resident killer whales (as
requested by CBD) and we consider
effects of sound qualitatively (see
further explanation in this comment
response, in the section ‘Physical and
Biological Features Essential to
Conservation’, and in the Biological
Report, NMFS 2021a, section V.B.4).
Because potential impacts of sound are
already addressed through qualitative
section 7 analyses of the prey and
passage features, as well as analyses of
effects of sound on individual whales
themselves, we have not included
sound as a separate feature. We will,
however, consider results of ongoing
and future studies and will review and
reconsider this conclusion as our
scientific understanding of the acoustic
ecology of Southern Resident killer
whales advances.
We agree with commenters that
communication space for social
behavior is important for killer whales,
and in the existing inland waters critical
habitat, and as expected for the coastal
areas designated in this final rule, we
will continue to consider the effects of
sound on these aspects of the Southern
Resident killer whales’ life history
through the passage and prey essential
features as well as in section 7 analyses
considering the impacts of noise on the
whales themselves. In response to the
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concerns expressed in the comments,
however, we have added more detail to
the Final Biological Report (NMFS
2021a, sections V.B.2., V.B.3, and V.B.4)
to clarify that the effects of
anthropogenic noise on communication
and social behavior are and will
continue to be evaluated through the
prey and passage essential features, as
well as analyses of effects to individual
whales. Specifically, indirect impacts of
anthropogenic noise on communication
and social behavior are addressed in
section 7 consultations when we
consider and address impacts of
anthropogenic noise on the whales
themselves, which would also take into
consideration elements including
communication and social behavior as
they can relate to the health and fitness
of individual whales. Specifically,
effects of anthropogenic noise that result
in ‘‘take’’ (including harm) to individual
whales are currently addressed under
section 7 of the ESA (pursuant to the
standard for considering whether a
proposed action would jeopardize the
continued existence of the species). For
example, the effects of military noise on
Southern Resident killer whales and
other marine mammals, including on
their communication space, are
addressed through ongoing NMFS
permitting of U.S. Navy Northwest
Training and Testing activities (85 FR
33914; June 2, 2020). In addition, if data
indicate that anthropogenic noise from
a particular Federal action is preventing
or impeding access to prey or
preventing or impeding successful
feeding within designated critical
habitat, then such effects could
constitute an adverse effect on the prey
essential feature and thus the designated
critical habitat itself and for that reason
would likely also be addressed under
section 7 of the ESA (pursuant to the
standard for considering whether an
action poses destruction or adverse
modification to critical habitat). Thus,
the critical habitat and essential features
as defined in this rule will provide a
measure of protection from noise
degradation to the extent that an action
might cause such noise that would
interfere with the whales’ ability to use
(e.g., move through for foraging,
migrating, social behavior, or access
prey) and successfully feed (including
social communication for prey sharing)
within the critical habitat. Furthermore,
the critical habitat designations as
finalized in this rule will result in the
added requirement that Federal agencies
explicitly analyze any relevant impacts
of noise on Southern Resident prey
species.
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There are several reasons why the
approach to sound for Southern
Resident killer whales is compatible
with the approaches for the other two
species, Cook Inlet beluga whale DPS
and the Main Hawaiian Islands insular
false killer whale (MHI IFKW) DPS,
which include sound qualitatively as a
feature or a characteristic of a feature.
The MHI IFKW designation considered
the effects of sound on navigation,
communication, and foraging by
including sound as a characteristic of
the habitat feature. Similarly, we are
able to analyze the equivalent effects for
Southern Resident killer whales through
the passage and prey features as these
similarly address navigation for access
to areas, communication for prey
sharing, and movement for foraging
(access to prey). For Cook Inlet beluga
whale critical habitat, the sound feature
focuses on identifying noise levels that
do not lead to abandonment of the area,
providing a level of protection that is
equivalent to our consideration of
acoustic barriers in the passage feature
for Southern Resident killer whales
(passage feature addresses access to
areas). Therefore, descriptions of both
sound essential features for false killer
whales and beluga whales inform the
qualitative assessment of habitat-related
impacts from anthropogenic sound,
specifically on passage, access to critical
habitat, and use of critical habitat,
similar to passage and prey features for
Southern Residents killer whales that
equally address access and use of
critical habitat. Likewise, the critical
habitat (Habitat of Special Importance)
established by Canada in Canadian
waters includes an acoustic
environment feature that addresses the
effects of anthropogenic underwater
noise on life history functions, but all
the life history functions that the feature
includes are captured in the prey and
passage features of critical habitat in
U.S. waters, making the two approaches
consistent in the level of protection they
provide for the species. Finally, no
qualitative sound-related feature has
been identified for other whale species
with larger ranges (like Southern
Resident killer whales) such as
humpback whales (84 FR 54354;
October 9, 2019), North Atlantic right
whales (81 FR 4838, January 27, 2016),
and north Pacific right whales (68 FR
19000, April 8, 2008).
Consistent with the proposed rule,
this final rule does not include sound as
an essential feature for Southern
Resident killer whale critical habitat.
We will continue to consider the
habitat-related effects of anthropogenic
sound on the whales via the prey and
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passage essential features, as detailed
above.
Comment 9: Many commenters
discussed the importance of prey
availability for the recovery of Southern
Resident killer whales, noting the value
of the coastal critical habitat for
supporting the whales’ access to prey.
One commenter felt that our description
of the prey feature should provide
greater specificity by specifying prey
species and priority Chinook salmon
runs that constitute essential features,
and identifying quantitative thresholds
for prey quantity, quality, and
availability.
Response: We agree with the
commenters’ view that prey availability
is important to Southern Resident
recovery, and we will continue to carry
out section 7 consultations to evaluate
potential jeopardy to killer whales from
fisheries and other activities with a
Federal nexus that may impact the
whales’ prey species. In addition,
certain priority Chinook salmon runs
consumed by Southern Resident killer
whales are also ESA-listed, and we will
continue to carry out section 7
consultations on Federal activities that
may jeopardize ESA-listed salmon. As
stated in the proposed rule and
supported by the subsequent Final Draft
Risk Assessment for Salmon FMP
Impacts to Southern Resident Killer
Whales (PFMC 2020) and our recent
Biological Opinions on Implementation
of the PFMC Salmon FMP (NMFS 2020,
NMFS 2021c), we continue to find that
there is not sufficient information to
establish a specific threshold level of
prey abundance and accessibility for
ensuring recovery of the whales. While
we have used thresholds of low Chinook
salmon abundance to describe high risk
conditions for the whales, we have not
been able to identify a quantitative
threshold for a critical habitat prey
feature. Even without such a threshold
for critical habitat, however, the final
rule and Final Biological Report
highlight the rigorous scientific
information available that supports our
evaluation of prey availability as a
feature. That supporting information
also includes our current understanding
of the different prey species important
to the whales.
There is extensive evidence that
Southern Resident killer whales have a
preference for Chinook salmon prey in
inland waters in the summer and fall, as
well as other species of salmonids at
particular times and locations (Final
Biological Report, NMFS 2021a). There
is emerging scientific information
supporting a similar preference for
Chinook salmon in coastal waters as
longer term studies have documented
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for inland waters, though the studies in
coastal waters have also documented a
wider range of prey species in the diet
compared to the diet in inland waters.
The coastal data, however, are limited
(small sample size from limited areas
and seasons compared to data for inland
waters) and still emerging as research
continues. Therefore, we have not
specified prey species in the description
of the prey feature at this time.
However, we will continue to use the
best available information on prey
species in the diet of the whales and
incorporate new information on prey as
our understanding evolves, as we have
in consultations on the inland waters
critical habitat.
Comment 10: One commenter
disputed the proposed rule’s analysis
regarding the relationship between
Chinook salmon abundance on the outer
coast and the availability of prey for
Southern Resident killer whales. The
commenter felt that NMFS did not use
the best available data in concluding
that Chinook salmon abundance on the
outer coast may pose a risk to the killer
whales, citing several studies for
additional consideration. The
commenter emphasized the
uncertainties that still exist in our
understanding of the relationship
between Southern Resident killer
whales population dynamics and
Chinook salmon. They noted the new
information available in the Risk
Assessment produced by the PFMC’s
Southern Resident Killer Whale
Working Group, and requested that
these findings be incorporated into the
final rule.
Response: The Draft Biological Report
(NMFS 2019a) provided a
comprehensive review of the scientific
literature on prey availability as a
potential threat to Southern Resident
killer whales. The Draft Biological
Report included studies noted by the
commenter for consideration, and
acknowledged the limitations and
uncertainties of the currently available
information. Since the publication of
the proposed rule on August 27, 2019,
new research has been published in the
Final Draft Risk Assessment for Salmon
FMP Impacts to Southern Resident
Killer Whales (PFMC 2020) and our
recent Biological Opinions on
Implementation of the PFMC Salmon
FMP (NMFS 2020, NMFS 2021c). The
Final Biological Report (NMFS 2021a)
and FEA (IEc 2021) have been updated
to include these new analyses.
Special Management Considerations
Comment 11: Several commenters
mentioned the importance of addressing
upstream threats to Southern Resident
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killer whales’ prey, such as sea lion
predation, dams, land-based water
pollution, and liquefied natural gas
terminals. Some of these commenters
felt the proposed rule did not go far
enough to address these threats, while
others felt NMFS should focus on
addressing these threats instead of
designating critical habitat. Alternative
solutions proposed by commenters
included increased hatchery
production; salmon habitat
management, protection, and
restoration; dam removal; and sea lion
predation management. Commenters
emphasized the need to consider
activities outside the critical habitat
with downstream impacts that could
adversely impact essential features of
the critical habitat. One commenter
requested that NMFS produce a map of
areas outside the critical habitat where
activities could trigger section 7
consultation.
Response: NMFS leads and supports a
wide range of activities that aim to
recover Southern Resident killer whales
and their prey, including efforts to
address upstream threats highlighted by
commenters. As one of many tools to
support recovery efforts, designating
critical habitat provides additional
conservation protections for the whales
and their habitat. ESA section 7 requires
that Federal agencies ensure their
actions are not likely to destroy or
adversely modify critical habitat. This
requirement applies to actions occurring
both within and outside of designated
critical habitat areas which can impact
the features of the critical habitat. For
example, consultation would be
required on activities that occur in
upstream freshwater locations if those
actions may affect essential habitat
features in designated critical habitat.
However, as described in the DEA and
FEA (section 1.3, IEc 2019, 2021), no
distance threshold can be
predetermined for how far upstream
from the critical habitat consultation
may occur. Therefore, it is not possible
to produce a map of areas where certain
activities would trigger section 7
consultation.
Comment 12: Several commenters
expressed concern about the impacts of
vessel traffic on Southern Resident
killer whales. One commenter requested
that we consider including additional
management measures for vessel traffic
in the critical habitat final rule, and
another requested that we not exclude
the San Francisco Bay shipping lanes.
Additionally, several commenters
expressed concern about potential
changes to vessel traffic management in
response to the designation of critical
habitat. They were concerned that the
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critical habitat designation could result
in modifications to routing, voyage
planning, and navigation restrictions
that would adversely impact maritime
shipping and towing industries.
Response: The proposed rule
identified vessel traffic as one of twelve
types of human activities that have the
potential to affect the habitat features
essential to the conservation of
Southern Resident killer whales. The
Final Biological Report describes the
potential impacts of vessel traffic on,
and existing regulations and procedures
in place to protect, the whales and their
habitat. Vessel traffic has a Federal
nexus through the shipping lanes
established by the U.S. Coast Guard
(USCG) under the Ports and Waterways
Safety Act, and the USCG consults with
NMFS to evaluate impacts on whales
and their critical habitat for the
regulatory codification of Traffic
Separation Schemes (TSS).
We did not propose to exclude and
are not excluding the San Francisco Bay
shipping lanes from critical habitat
designation, nor do we anticipate that
designation will result in changes to the
San Francisco Bay TSS. As described in
section 2.9 of the DEA and FEA (IEc
2019, 2021), based on our experience
with section 7 and informal
consultations with USCG regarding
codification of TSS, NMFS does not
anticipate the expanded critical habitat
will generate additional conservation
efforts for killer whales associated with
vessel traffic management beyond the
existing need to avoid jeopardy to the
whales.
Comment 13: Two commenters stated
that scientific research should be
included in the economic analysis as an
activity that may be affected by the
critical habitat designation. One
commenter stated that it was unclear if
scientific research activities were
considered in the economic analysis,
and mentioned that basic marine
research supported by the National
Science Foundation (NSF) occurs
within the proposed critical habitat
(e.g., NSF Ocean Observatories
Initiative). One commenter
recommended that we list this category
of activity as part of our summary of
activities that may adversely modify the
critical habitat or be affected by the
designation as required by section
4(b)(8) of the ESA.
Response: The effects of certain
scientific research activities on
Southern Resident killer whale critical
habitat and potential for changes in
management of those activities
following critical habitat expansion
were considered within the discussion
of other related activities in the DEA
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and are still considered in the FEA (IEc
2019, 2021) These activities are directly
related to other categories of activities
that may affect critical habitat and are,
therefore, grouped within those
activities instead of as a separate
category of activity. For example,
seismic-based research is discussed in
section 2.12 Geologic Surveys
(Including Seismic Surveys), and
research related to renewable energy
development is discussed in section 2.6.
Alternative Energy Development.
Fisheries-related scientific research is
included under the category of Fisheries
in section 2.3. Other types of scientific
research were not identified as posing a
specific threat to the essential features
of Southern Resident killer whale
critical habitat, but future consultations
on these activities will need to include
an analysis of potential effects on
critical habitat. In all cases, NMFS has
not identified any conservation efforts
that will change management of any
scientific research activity following the
critical habitat expansion. The DEA and
FEA do consider the administrative
costs to NMFS, the action agency, and
third parties relative to this activity
associated with future section 7
consultations. These costs are reported
in Exhibit 3–9 in the categories of
‘‘Fisheries’’ (for fisheries-related
research), ‘‘Renewable Energy
Development’’ (for wind and wave
energy research), ‘‘Seismic Surveying’’
(for seismic research), and ‘‘Other’’ (for
other types of research).
Application of ESA Section 4(b)(2)
Economic Impacts
Comment 14: A representative from
the USACE Sacramento District
commented that consultations in the
Sacramento District will need to
consider the effects of their permitted
activities on Southern Resident killer
whale critical habitat, and thus those
activities may be affected by the critical
habitat expansion. Additionally, costs
associated with future section 7
consultations will be incurred by the
District.
Response: We thank the commenter
for pointing out the oversight in the
DEA’s exclusion of the Sacramento
District from the list of USACE Districts
that manage and conduct activities
potentially affected by the expansion of
critical habitat for Southern Resident
killer whales. We agree that because the
range of the prey species, which is an
essential feature of Southern Resident
killer whale critical habitat, extends into
the Sacramento District’s area of
authority, activities in that district may
be affected. Consistent with the
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comment, we agree that those costs
identified in the report as potentially
resulting from the critical habitat
expansion relative to USACE projects
may include projects in the Sacramento
District. Because NMFS does not
anticipate any changes to the
management of USACE permitted or
implemented activities, these costs are
limited to the administrative costs to
NMFS, the USACE, and third party
permit applicants of participating in
future section 7 consultations. Section
2.10 of the FEA (IEc 2021) includes the
Sacramento District in the list of USACE
districts that manage activities that may
be affected by the expansion (may have
administrative costs associated with
potential future consultations).
Comment 15: Multiple commenters
stated that the economic analysis did
not adequately consider the potential
costs of the proposed critical habitat
designation on fisheries. One
commenter noted that nearly all costs
identified in the economic analysis are
internal costs to NMFS instead of thirdparty costs to the fishing industry.
Commenters acknowledged that NMFS
considers additional conservation
efforts as a result of critical habitat
designation to be unlikely but noted that
if this assumption proves false, there
could be significant economic impacts
to fisheries. The commenters suggested
that the economic analysis should
provide a full range of potential
economic impacts to fisheries, including
an analysis of potential fisheries
closures. The commenters suggested
that such analysis would better inform
the fishing industry, as well as better
allow NMFS to weigh potential costs
versus benefits of the designation.
Response: The DEA considered the
potential for the expansion of critical
habitat to result in additional
conservation efforts, including fishery
closures, for commercial and
recreational fisheries (see section 2.3).
At the time of DEA development, NMFS
was not able to envision a scenario in
which the expansion of critical habitat
for Southern Resident killer whales
would result in changes to management
of salmon fisheries or fisheries with
incidental catch of salmon. This
conclusion was due to a number of
factors including the ESA listing and
consequent need for recovery of many
salmon populations themselves, existing
consideration of fishery impacts and
prey availability relative to the potential
for jeopardy to Southern Resident killer
whales even absent critical habitat
expansion, and experience over the past
15 years implementing the inland
waters critical habitat for Southern
Resident killer whales, which has not
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resulted in fishery management changes
beyond those considered during ESA
consultation on prey effects relative to
jeopardy. Since that time, there has been
substantial attention to Southern
Resident killer whale conservation and
recognition of the link between their
recovery and salmon abundance,
suggesting that numerous factors
outside of the potential critical habitat
expansion will continue to drive policy
decisions related to management of
salmon fisheries. As a result, NMFS is
unable to envision a scenario in which
the expanded designation of critical
habitat will result in changes to fishery
management. Given this, we have not
quantified costs associated with
hypothetical management actions that
are not anticipated outcomes of this
critical habitat rule. Quantified costs are
thus limited to those administrative
costs incurred as a result of section 7
consultation on fishery management
plans.
The administrative costs quantified in
the DEA and FEA are not exclusive to
NMFS. As shown in Exhibit 1–3 of the
FEA, the analysis estimates
administrative costs for each forecasted
consultation to NMFS, a Federal action
agency, and a third party (IEc 2021). A
third party to consultation could be a
private company (e.g., an applicant for
a Federal permit), a local or state
government, or some other entity. In the
case of fisheries, administrative costs
are incurred through the process of
consultation on fishery management
plans. Although private third parties
such as individual fishermen are not
generally involved in this process,
administrative effort on the part of one
or more third parties associated with
participation in that process is included
in the estimated costs of consultation.
Comment 16: Numerous commenters
stressed the need for the economic
analysis to consider the value of and
potential impacts to fisheries and
associated communities in California,
Oregon, and Washington. These
commenters stated that the critical
habitat designation could harm the
livelihoods of fishermen and coastal
communities all along the West Coast.
Response: The FEA (IEc 2021)
recognizes the economic value of
fisheries to communities in Washington,
Oregon, and California (IEc 2021,
section 2.3.1). However, the critical
habitat designation is unlikely to result
in additional conservation efforts due to
baseline protections associated with the
ESA-listing status of both the killer
whales and salmon, i.e., due to the need
to consider the potential for fisheries to
jeopardize the species even without a
critical habitat designation. As a result,
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we conclude that the rule will not have
economic impacts on fishing activity
beyond administrative costs associated
with section 7 consultation on fishery
management plans.
Comment 17: One commenter
expressed the opinion that the economic
analysis does not account for certain
types of economic costs of the
designation to the fishing industry,
including delays associated with
consultation and litigation. The
commenter describes that additional
consultations and/or litigation
associated with the final rule will result
in costs to NMFS that have not been
accounted for such as staff resources
that are required to administer
consultations and/or litigation
associated with the final rule.
Consultation requirements and litigation
could result in costs to the industry,
particularly if it results in other
important actions being delayed because
of this rule.
Response: The administrative time
and resources associated with NMFS’
participation in consultations resulting
from the critical habitat expansion, as
well as participation of other Federal
agencies and third parties to
consultations, are explicitly included in
the administrative costs quantified in
the FEA (IEc 2021). It would be
speculative to estimate costs associated
with delays in management actions due
to consultation requirements absent data
that specifies the nature, extent, and
duration of these types of delays,
particularly in light of the fact that
NMFS does not anticipate that the
outcome of consultations would change
as a result of the critical habitat
expansion.
While potential exists for third party
lawsuits to result from critical habitat
designation, the likelihood, timing, and
outcome of such lawsuits are uncertain.
While critical habitat designation may
stimulate additional legal actions, data
do not exist to reliably estimate impacts.
That is, estimating the number, scope,
and timing of potential legal challenges
would require significant speculation.
Furthermore, litigation risk exists
regardless of the critical habitat
designation given the existing
protections already afforded the whales
under the MMPA and ESA.
National Security Impacts
Comment 18: Multiple commenters,
including the Washington Department
of Fish and Wildlife, expressed
opposition to the proposed exclusions
of the QRS off the coast of Washington
and the associated 10-km buffer around
this area. Several commenters stated
that the proposed exclusion was overly
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broad and not adequately justified.
Several commenters stated that planned
activities, such as use of sonar and
explosives, can impact the whales and
their prey, and additional mitigation
measures or restrictions on the
Department of the Navy’s (‘‘Navy’’)
activities within the QRS should be
implemented. One commenter noted
that the QRS overlaps with the OCNMS,
an area that requires a higher standard
of resource protection. Several
commenters noted that the QRS area
was within a high use foraging and
passage area for Southern Resident
killer whales. Some commenters noted
that the 10-km buffer overlaps and is
adjacent to priority Chinook salmon
rivers and expressed concern that the
exclusion may impact their ability to
access prey. Several commenters
suggested not excluding from the
critical habitat designation a northsouth nearshore corridor for passage
through the QRS. Commenters
requested we reconsider the Navy’s
request for this exclusion given the
importance of the area for Southern
Resident killer whales.
Acknowledging the requirement to
balance military readiness needs when
designating critical habitat, one
commenter made several points in favor
of the exclusion, noting the low number
of training and testing events that the
Navy expected to carry out within the
QRS and that those activities would be
subject to review under section
101(a)(5)(A) of the MMPA and section 7
of the ESA.
Response: As discussed in the Draft
and Final ESA Section 4(b)(2) Report
(NMFS 2019b, 2021b), to weigh the
national security impacts against
conservation benefits of a potential
critical habitat designation, we
considered the size of the requested
exclusion and the amount of overlap
with the specific critical habitat area;
the relative conservation value of the
particular area for the Southern
Resident killer whales; the importance
of the site to the Navy mission and
military readiness; the likelihood that
the Navy’s activities would destroy or
adversely modify critical habitat, and
the likelihood that NMFS would require
project modifications to reduce or avoid
these impacts; and, the likelihood that
other Federal actions may occur in the
site that would no longer be subject to
the critical habitat provision if the
particular area were excluded from the
designation. In response to the public
comments, we reconsidered these
factors, information provided by the
Navy, and also requested additional
information from the Navy regarding
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their activities in the portion of the QRS
that also falls within the OCNMS.
In making our decision with respect
to this particular area, we did so within
the framework of our joint NMFS/
USFWS policy on implementation of
section 4(b)(2) (81 FR 7226, February 11,
2016) (‘‘Section 4(b)(2) Policy’’).
Specifically, when a DOD agency
requests an exclusion on the basis of
national-security or homeland security
impacts, it must provide a ‘‘reasonably
specific justification’’ of a probable
incremental impact on national security
that would result from the designation
of that specific area as critical habitat
(81 FR 7226; February 11, 2016). Where
the request is substantiated with such a
reasonably specific justification, we give
‘‘great weight’’ to those concerns in
analyzing the benefits of exclusion.
The QRS and proposed 10-km buffer
comprise about 39 percent of Area 1
(Coastal Washington/Northern Oregon
Inshore) and about 25 percent of Area 2
(Coastal Washington/Northern Oregon
Offshore), and about 28 percent of Areas
1 and 2 combined, but a very small
portion of the total critical habitat
designations for the Southern Resident
killer whale (8.5 percent). The QRS and
associated buffer also have a significant
degree of overlap with the OCNMS,
where certain activities are prohibited
or not authorized, including oil, gas, or
mineral exploration, development, or
production; discharging or depositing
any material or other matter; drilling
into, dredging, or otherwise altering the
seabed, with some exceptions (15 CFR
922.152). Because of these prohibitions,
the likelihood of other Federal activities
being proposed in this area of the QRS
may be limited.
In support of their request for
exclusion of this particular area, the
Navy pointed to the extensive range of
planned activities, which are described
in their Final Northwest Training and
Testing (NWTT) Supplemental
Environmental Impact Statement (SEIS)
published on September 18, 2020, and
stated that any additional, future
modifications to these activities to
minimize impacts on Southern Resident
killer whale critical habitat would
impact the Navy’s ability to meet
mission requirements. The Navy
pointed to the use of explosives, in
particular, as being likely to have
adverse effects on killer whale prey,
although not likely at the population
level for salmon prey. In their initial
request, dated December 5, 2018, the
Navy stated that if additional mitigation
requirements result in having to halt,
reduce in scope, or geographically or
seasonally constrain testing activities to
prevent adverse effects to critical
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habitat, this would in turn impact its
ability to test and field new systems and
platforms. To avoid potential,
additional, spatial restrictions on its
activities within the QRS, the Navy also
requested exclusion of an additional 10km buffer around the QRS from the
critical habitat designation. The Navy
determined the size for this buffer using
sound attenuation modeling to calculate
the farthest distance at which fish
would be expected to be injured from
the largest explosive the Navy can
reasonably foresee testing in the QRS;
and, in subsequent communications, the
Navy further clarified that the size of the
buffer also incorporated uncertainty for
updates in resource-related science,
changes in oceanographic conditions
that could reduce attenuation, and the
evolution of military technologies that
may behave differently in the
environment.
We continue to find that the Navy has
provided a reasonably specific
justification to support the requested
exclusion of the QRS, and consistent
with our Section 4(b)(2) Policy (81 FR
7226; February 11, 2016), we gave great
weight to these concerns when
analyzing the benefits of exclusion. Our
consideration of the multiple factors
discussed, coupled with the potential
delay in critical missions in order to
complete adverse modification analyses,
caused us to continue to find that the
benefits of excluding the QRS due to
national security impacts outweigh the
benefits of designating this portion of
Areas 1 and 2 as critical habitat for the
Southern Resident killer whales.
However, we are modifying our
proposed exclusion of the buffer area.
Specifically, we are not excluding a
portion of the 10 km buffer area around
the northeast corner of the QRS,
extending along the East side of the
QRS, where it overlaps with the
OCNMS. As detailed in the Section
4(b)(2) Report (NMFS 2021b), we
concluded the benefits of designating
critical habitat for Southern Resident
killer whales within this portion of the
buffer are not outweighed by national
security impacts of including that
portion at this time.
We acknowledge the concerns raised
by the commenters regarding potential
impacts to the whales and their prey as
a result of certain Navy activities, such
as sonar and explosives. The Biological
and Conference Opinion on the Navy’s
Northwest Training and Testing
Activities, issued by NMFS on October
19, 2020, addresses activities within the
QRS and analyzed the effects of the
Navy’s planned activities on Southern
Resident killer whales as well as their
prey. As discussed in that consultation,
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the Navy has adopted certain mitigation
measures within the QRS, including the
portion of the QRS that overlaps with
the OCNMS, to avoid or minimize
adverse impacts on marine mammals
and other marine resources in this area.
Exclusion of the QRS area will not
impact our ability to continue to work
closely with the Navy through the
section 7 consultation process to
minimize and mitigate impacts to the
Southern Resident killer whales as a
result of the Navy’s testing and training
activities (see 85 FR 72312; November
12, 2020, and https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navynorthwest-training-and-testing-nwtt2020).
Critical Habitat Identification
In the following sections, we describe
the relevant definitions and
requirements in the ESA and our
implementing regulations and the key
information and criteria used to prepare
this revision to the Southern Resident
killer whale critical habitat designation.
In accordance with section 4(b)(2) of the
ESA and our implementing regulations
(50 CFR 424.12), this designation is
based on the best scientific information
available.
We followed a five-step process in
order to identify the specific areas
eligible for critical habitat designation:
(1) Determine the geographical area
occupied by the species at the time of
listing, (2) identify physical or
biological habitat features essential to
the conservation of the species, (3)
delineate specific areas within the
geographical area occupied by the
species on which are found the physical
or biological features, (4) determine
whether the feature(s) in a specific area
may require special management
considerations or protection, and (5)
determine whether any unoccupied
areas are essential for conservation. Our
evaluation and determinations are
described in detail in the Final and
Draft Biological Reports (NMFS 2019a,
NMFS 2021a) and are summarized
below.
Beyond the identification and
description of the areas, the critical
habitat designation process also
includes additional steps: Identify
whether any area may be precluded
from designation because the area is
subject to an INRMP that we have
determined provides a benefit to the
species; and consider the economic,
national security, or any other relevant
impacts of designating critical habitat
and determine whether to exercise our
discretion to exclude any particular
areas. These steps are described in the
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Final ESA Section 4(b)(2) Report (NMFS
2021b) and the FEA (IEc 2021) and are
summarized in later sections of this
rule.
Geographical Area Occupied by the
Species
The term ‘‘geographical area occupied
by the species’’ is defined as an area that
may generally be delineated around a
species’ occurrences as determined by
the Secretary (i.e., range). Such areas
may include those areas used
throughout all or part of the species’ life
cycle, even if not used on a regular basis
(e.g., migratory corridors, seasonal
habitats, and habitats used periodically,
but not solely by vagrant individuals)
(50 CFR 424.02).
Southern Resident killer whale
summer inland habitat use was
previously described in the 2006 critical
habitat designation (71 FR 69054,
November 29, 2006). At that time, few
data were available on Southern
Resident distribution and habitat use of
coastal and offshore areas in the Pacific
Ocean. While it was known that the
whales occupied these waters for a
portion of the year, only 28 sightings of
Southern Resident killer whales were
available to describe their coastal range
(Krahn et al. 2004, NMFS 2006). In the
2006 designation, these coastal areas
were included in the identified
geographical area occupied by the
species, but the lack of data precluded
the agency from designating specific
areas within the coastal range as critical
habitat.
Since the 2006 designation,
considerable effort has been made to
better understand the range and
movements of Southern Resident killer
whales once they leave inland waters.
Land- and vessel-based opportunistic
and survey-based visual sightings,
satellite tracking, and passive acoustic
research conducted since 2006 have
provided an updated estimate of the
whales’ coastal range that extends from
the Monterey Bay area in California,
north to Chatham Strait in Southeast
Alaska. In addition, these data have
provided a better understanding of the
whales’ use of these waters, allowing us
to identify areas that meet the definition
of critical habitat under the ESA.
While the range of Southern Resident
killer whales includes coastal and
inland waters of British Columbia,
Canada, we cannot designate critical
habitat in areas outside of U.S.
jurisdiction (50 CFR 424.12(g)). The
Government of Canada has designated
critical habitat for Northern and
Southern Resident killer whales in
Canadian waters under its Species at
Risk Act. In its 2008 recovery strategy
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and 2011 amended recovery strategy,
the Government of Canada identified
the Canadian side of Haro and Juan de
Fuca Straits, as well as Boundary Pass
and adjoining areas in the Strait of
Georgia as critical habitat for Southern
Resident killer whales (Fisheries and
Oceans Canada 2011). The Government
of Canada recently designated a new
critical habitat area for Northern and
Southern Resident killer whales in
ocean waters on the continental shelf off
southwestern Vancouver Island,
including Swiftsure and La Pe´rouse
Banks (Fisheries and Oceans Canada
2018).
Some Alaskan waters are considered
to be within the geographic area
occupied by Southern Resident killer
whales, but we are not expanding
critical habitat there at this time because
there is insufficient information about
the whales’ distribution, behavior, and
habitat use in these areas. For example,
there is only one sighting of Southern
Resident killer whales in Southeast
Alaska, in Chatham Strait in 2007.
While we can infer that some of the
essential habitat features, such as prey,
are present to support the whales there,
we do not have sufficient data to
adequately describe Southern Resident
use of habitat features in this area or
identify specific areas with those
features.
Physical and Biological Features
Essential to Conservation
The ESA does not specifically define
physical or biological features.
However, court decisions and joint
NMFS and USFWS regulations at 50
CFR 424.02 (81 FR 7413; February 11,
2016) provide guidance on how
physical or biological features are
expressed. Physical and biological
features support the life-history needs of
the species, including but not limited to,
water characteristics, soil type,
geological features, sites, prey,
vegetation, symbiotic species, or other
features. A feature may be a single
habitat characteristic, or a more
complex combination of habitat
characteristics. Features may include
habitat characteristics that support
ephemeral or dynamic habitat
conditions. Features may also be
expressed in terms relating to principles
of conservation biology, such as patch
size, distribution distances, and
connectivity.
Based on the best available scientific
information regarding natural history
and habitat needs, the following features
were identified in the 2006 critical
habitat designation as essential to the
conservation of the species within
inland waters of Washington: (1) Water
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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. We
identified the same three biological and
physical features as essential for the
conservation of Southern Resident killer
whales within their coastal range, as
described below.
(1) Water quality to support growth
and development. Water quality
supports Southern Resident killer
whales’ ability to forage, grow, and
reproduce free from disease and
impairment. Southern Resident killer
whales are highly susceptible to
biomagnification of pollutants, such that
chemical pollution is considered one of
the prime impediments to their recovery
(NMFS 2008). Water quality is essential
to the whales’ conservation, given the
whales’ present contamination levels,
small population numbers, increased
extinction risk caused by any additional
mortalities, and geographic range (and
range of their primary prey) that
includes highly populated and
industrialized areas. Water quality is
especially important in high-use areas
where foraging behaviors occur and
contaminants can enter the food chain.
The absence of contaminants or other
agents of a type and/or amount that
would inhibit reproduction, impair
immune function, result in mortalities,
or otherwise impede the growth and
recovery of the Southern Resident
population is a habitat feature essential
for the species’ recovery. Exposure to oil
spills also poses additional direct
threats as well as longer-term
population level impacts. Therefore, the
absence of these chemicals is essential
to Southern Resident conservation and
survival.
(2) Prey species of sufficient quantity,
quality and availability to support
individual growth, reproduction and
development, as well as overall
population growth. Southern Resident
killer whales need to maintain their
energy balance all year long to support
daily activities (foraging, traveling,
resting, socializing) as well as gestation,
lactation, and growth. Maintaining their
energy balance and body condition is
also important because when stored fat
is metabolized, lipophilic contaminants
may become more mobilized in the
bloodstream, with potentially harmful
health effects (Mongillo et al. 2016).
Southern Resident killer whales are top
predators that show a strong preference
for salmonids in inland waters,
particularly larger, older age class
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Chinook (age class of 3 years or older)
(Ford & Ellis 2006, Hanson et al. 2010).
Samples collected during observed
feeding activities, as well as the timing
and locations of killer whales’ high-use
areas that coincide with Chinook
salmon runs, suggest the whales’
preference for Chinook salmon extends
to outer coastal habitat use as well
(Hanson et al. 2017, Shelton et al. 2018,
Hanson et al. 2021). At some low
Chinook abundance level, the prey
available to the whales will not be
sufficient to forage successfully leading
to adverse effects on body condition or
fecundity (NMFS 2020). Habitat
conditions should support the
successful growth, recruitment, and
sustainability of abundant prey to
support the individual growth,
reproduction, and development of
Southern Resident killer whales.
Age, size, and caloric content all
affect the quality of prey, as do
contaminants and pollution. The
availability of key prey is also essential
to the whales’ conservation. Availability
of prey along the coast is likely limited
at particular times of year due to the
small run sizes of some important
Chinook salmon stocks, as well as the
distribution of preferred adult Chinook
salmon that may be relatively spread out
prior to their aggregation when
returning to their natal rivers.
Availability of Chinook salmon to the
whales may also be impacted by sound
from vessels or other sound sources if
they raise average background noise
within the animal’s critical bandwidth
to a level that is expected to chronically
or regularly reduce echolocation space
(Joy et al., 2019, Veirs et al. 2016), and
by competition from other predators
including other resident killer whales,
pinnipeds, and fisheries (Chasco et al.
2017).
(3) Passage conditions to allow for
migration, resting, and foraging.
Southern Resident killer whales are
highly mobile, can cover large distances,
and range over a variety of habitats,
including inland waters and open ocean
coastal areas from the Monterey Bay
area in California north to Southeast
Alaska. The whales’ habitat utilization
is dynamic. Analyses of Southern
Resident killer whales’ movement
patterns on the outer coast from satellite
tag data have revealed preferred depth
bands and distances from shore that
suggest potential travel corridors, and
variations in travel speed or duration of
occurrence that may indicate different
behavioral states (Hanson et al. 2017).
Southern Resident killer whales
require open waterways that are free
from obstruction (e.g., physical,
acoustic) to move within and migrate
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between important habitat areas
throughout their range, find prey,
communicate, and fulfill other life
history requirements. As an example of
an ‘‘acoustic obstruction,’’ killer whale
occurrence in the Broughton
Archipelago, Canada declined
significantly when acoustic harassment
devices were in use at a salmon farm,
and returned to baseline levels once the
devices were no longer used (Morton &
Symonds 2002), indicating the
introduction of this chronic noise
source into the environment acted as an
acoustic barrier and/or deterrent to the
whales’ use of the area. The passage
feature may be less likely to be impacted
in coastal ocean waters compared to the
more geographically constricted inland
waters because the whales may be able
to more easily navigate around potential
obstructions in the open ocean, but
these passage conditions are still a
feature essential to the whales’
conservation and which may require
special management considerations or
protection.
We also considered whether to
identify sound as a fourth essential
feature. Southern Resident killer whales
produce and detect sounds for
communication, navigation, and
foraging. An acoustic environment, or
soundscape, in which the whales can
detect and interpret sounds is critical
for carrying out these basic life
functions. In recognition of this, we
previously considered identifying sound
as a potential essential feature (69 FR
76673; December 22, 2004), but
ultimately concluded that we lacked
sufficient information to do so. CBD
petitioned us to again consider
identifying in-water sound as an
essential feature of the currently
designated critical habitat and any new
designation.
We considered the request and
examined new information that has
become available since publication of
the 2006 critical habitat designation
final rule, but similar to limitations in
our knowledge in 2006, at this time we
are not able to identify specific in-water
sound levels or thresholds for
communication, behavioral or
displacement impacts as specifically
requested in the petition by CBD. More
importantly, we are able to assess
adverse habitat-related effects of
anthropogenic sound by evaluating
impacts to the prey and passage
essential features of current critical
habitat for Southern Resident killer
whales, as well as to the whales
themselves, and thus we do not
consider it necessary to identify sound
as a separate essential feature. The final
rule is consistent with the proposed rule
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(84 FR 49214, September 19, 2019) and
does not include sound as an essential
feature for Southern Resident killer
whale critical habitat. We will continue
to consider the habitat-related effects of
anthropogenic sound on the whales via
the prey and passage essential features,
as detailed in this section. Under the
ESA, we separately consider effects of
anthropogenic sound on individual
whales (which is scaled up to the listed
species unit) and habitat-related impacts
(which is scaled up to the critical
habitat designation). For the former,
NMFS has an established framework
and thresholds for considering impacts
to marine mammals’ hearing
(specifically temporary or permanent
hearing loss), as outlined in our
‘‘Technical Guidance for Assessing the
Effects of Anthropogenic Sound on
Marine Mammal Hearing’’ (NMFS
2018), and NMFS is also working to
refine our guidance on the effects of
anthropogenic sound on marine
mammal behavior. We will continue to
evaluate and manage direct and indirect
effects (including consideration of noise
interference with whale communication
and social behavior) of anthropogenic
sound on individual animals and the
population relative to the jeopardy
standard in ESA section 7 analyses and
through MMPA incidental take
authorizations.
Adverse habitat-related effects may
stem from the introduction of a chronic
noise source that degrades the value of
habitat by interfering with the soundreliant animal’s ability to gain benefits
from that habitat (i.e., altering the
conservation value of the habitat).
NMFS does not currently have a
methodology to establish quantifiable
thresholds for determining when
chronic noise reaches a level such that
it alters the conservation value in this
way. However, we can, and do, consider
these effects qualitatively.
In our experience evaluating effects to
Southern Resident killer whale critical
habitat in inland waters, we are able to
assess adverse habitat-related effects of
anthropogenic sound by evaluating
impacts to the prey and passage
essential features of current critical
habitat for Southern Resident killer
whales, and thus we do not consider it
necessary to identify sound as a separate
essential feature. For example, we
evaluate whether chronic anthropogenic
sound might alter the conservation
value of habitat by reducing the
availability of the whales’ prey in a
particular foraging area by reducing the
effective echolocation space for the
whales to forage or communicate, or
creating a barrier that restricts
movements through or within an area
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necessary for migration, resting, social
behavior, or foraging. Thus, the prey
and passage essential features as defined
in this rule will provide a measure of
protection from noise degradation to the
extent that an action might cause such
noise that would interfere with the
whales’ ability to use (e.g., move
through as in passage or access prey)
and successfully feed within the critical
habitat (prey feature, including social
communication for prey sharing). We
will use the same approach for
evaluating these effects in coastal
critical habitat, consistent with our
existing practice in inland waters
critical habitat.
In response to public comments
requesting that the final rule include
sound as an essential feature and
emphasizing the importance of
communication space for social
behavior and pod cohesion (see
Comment 8 and response), we revised
the Biological Report to clarify that the
effects of sound on communication and
social behavior are considered in the
passage and prey features (as well as
effects of sound on individual whales
themselves via section 7, outside of
critical habitat designation, see sections
V.B.2–4, Final Biological Report, NMFS
2021a). Additionally, we will continue
to consider and address impacts of
anthropogenic noise on the whales
themselves, which would also take into
consideration elements including
communication and social behavior as
they can relate to the health and fitness
of individual whales.
Specific Areas Within the Geographical
Area Occupied by the Species
The three specific areas within the
geographic area (range) occupied by the
species identified in the 2006 critical
habitat designation are carried forward
unchanged by the critical habitat
revision. We refer to them here as
Inland Waters Areas 1–3 to differentiate
them from the six newly designated
specific coastal areas (Coastal Areas 1–
6). In the 2006 designation, a lack of
data precluded us from determining
whether any specific areas within the
coastal range met the definition of
critical habitat. Research and data
collected since then have allowed us to
better characterize the whales’ habitat
use (NMFS 2021a). These data are now
sufficient to identify specific areas
within the whales’ coastal range.
CBD requested that we identify
critical habitat in areas of the Pacific
Ocean between Cape Flattery,
Washington, and Point Reyes,
California, extending approximately 47
mi (76 km) offshore. This requested area
was based mainly on the extent of the
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whales’ movements from NMFS’
satellite tag data: Tagged animals
traveled as far south as Point Reyes and
as far offshore as 47 mi. However, the
petition stated that because NMFS was
continuing to analyze data describing
the Southern Resident killer whales’ use
of coastal and offshore waters, the
petition requested we ‘‘refine this
proposal, as necessary, to include
additional inhabited zones or to focus
specifically on areas of concentrated
use’’ (CBD 2014). To delineate specific
areas, we relied on the satellite tag data
but also incorporated information on
sightings, acoustic data, and prey
sampling. As a result, our specific areas
differ in their boundaries from the
petitioner’s request. For example, there
are documented sightings of Southern
Resident killer whales south of Point
Reyes, so the boundary of the critical
habitat is farther south than the
petitioners requested.
We identified six specific areas off the
U.S. West Coast, delineated based on
their habitat features, including
variation in the primary feature, and
variation in predominant habitat use
(for example foraging versus traveling)
by Southern Resident killer whales.
They encompass most (but not all) of
the whales’ U.S. coastal range, and vary
in size. The ESA and our regulations
provide the agency discretion to
determine the scale at which specific
areas are identified (50 CFR 424.12; 81
FR 7413; February 11, 2016). We
selected the boundaries between areas
to reflect the spatial scale of the whales’
movements and behavioral changes
(e.g., where tagged whales were
primarily traveling versus observed
foraging), as well as to align with some
existing fishery management boundaries
(e.g., Pigeon Point and Point Sur are
geographic points used by the PFMC in
salmon management; PFMC 2016). Each
area contains all three essential features,
but the primary feature varies by area
and the primary feature of each area is
noted below. Identifying six areas with
varying primary features, instead of just
one comprehensive critical habitat area
containing all three features, will assist
with section 7 consultations and
analyses about how actions would affect
the conservation value of an area based
on the primary feature. In addition,
identifying six areas rather than one also
assisted in analyzing benefits and costs
in the ESA Section 4(b)(2) Report
(NMFS 2021b). More information about
each area, including descriptions of the
whales’ use of the area based on
sighting, satellite tagging, and acoustic
detection data, can be found in the Final
Biological Report (NMFS 2021a). All
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area sizes are based on best available
spatial data at the time of the final rule.
Beginning at the westernmost extent
of the previously designated Strait of
Juan de Fuca critical habitat area (Inland
Waters Area 3), the new coastal areas
span the U.S. West Coast from the U.S.
international border with Canada south
to Point Sur, California, which is just
south of the southernmost sightings of
Southern Resident killer whales in
Monterey Bay. On January 27, 2008,
Southern Resident killer whales were
sighted off Cypress Point, Carmel Bay,
just south of Monterey Bay, traveling
south (N. Black, Monterey Bay Whale
Watch, Orca Network sightings
archives). Given uncertainty in the exact
extent of the whales’ southward
movements, we elected to delineate the
southern boundary of the specific area
just south of the last sighting (by
approximately 20 mi (32.2 km)) and
align the boundary with the existing
salmon management area boundary at
Point Sur, California (PFMC 2016).
The inshore (eastern) boundary of the
areas is delineated by a continuous line
along the coast at 20-ft (6.1–m) depth
relative to mean high water. This
continuous line crosses river mouths
and entrances to semi-enclosed bays
and estuaries at the 20 ft depth contour
where available or crossing at
significant barriers (e.g., jetties). Based
on the available data, we defined the
shoreward boundary of the specific
areas as a line along the coast at 20 ft
(6.1 m) in depth relative to the mean
high water line. Southern resident killer
whales rarely occur in waters shallower
than 20 ft (6.1 m). For example, based
on data from four satellite-tagged
Southern Resident killer whales, less
than 1 percent of the whales’ outer
coastal locations were in depths less
than 6 m (approximately 20 ft) (NWFSC
unpubl. Data, see the Biological Report,
NMFS 2021a) (but locations based on
satellite tags are not exact and tidal
conditions are unknown for these
observations). In addition, there are no
data from sightings or satellite tags to
indicate that Southern Resident killer
whales enter river mouths or semienclosed bays and estuaries along the
coast, although data indicate the whales
do use the open embayment of
Monterey Bay in California. Finally, the
inward boundary is consistent with the
inshore boundary of the 2006 critical
habitat designation in inland waters
(although the inshore boundary of the
coastal critical habitat is delineated
relative to the mean high water line
instead of extreme high water, the
inshore boundary in inland waters) and
the proposed rule (84 FR 49214,
September 19, 2019).
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The offshore (western) boundary of
the areas is the 656.2 ft (200 m) depth
contour, or isobath. This was selected
because movement data from satellitetagged Southern Resident killer whales
indicate that most coastal locations were
in water depths of 200 m or less (96.5
percent) and within 21.1 mi (34 km)
from shore (95 percent) (Hanson et al.
2017). Additionally, the limited
information available on the
distribution of salmon in offshore
waters indicates Southern Resident
killer whale prey (an essential feature of
the habitat) is present in waters of 200
m or less. The two areas off the coast of
Washington share the same northern
and southern boundaries but are
separated longitudinally at the 50-m
isobath, such that Coastal Area 1 ranges
from 6.1–50 m depth while Coastal Area
2 ranges from 50–200 m depth. The 50m isobath was selected to distinguish
the areas because the majority (42 of 52,
or 76.4 percent) of prey samples from
observed Southern Resident killer whale
predation events in these two areas were
collected in water depths of 50 m or
less, and just over half of the satellite tag
locations in these two areas (54 percent)
were in water depths of 50 m or less
(NWFSC unpubl. data; Hanson et al.
2021, see the Biological Report, NMFS
2021a).
The latitudinal boundaries between
the specific coastal areas were initially
selected to coincide with some of the
coastal salmon management area
boundaries as defined in the Pacific
Salmon FMP and used for the
management of salmon harvest
(Chinook and Coho specifically) (PFMC
2016). Although the areas of highest
Southern Resident killer whale
occurrence, as indicated by a durationof-occurrence model from satellite tag
data (Hanson et al. 2017), did not
precisely match the salmon
management areas, they generally align
with the available information on
salmonid and other fish species that
may be prey to Southern Resident killer
whales. For example, the whales’
highest use areas occurred in the North
of Falcon fishery management area
between Cape Falcon, Oregon and the
Canadian border, and relatively high use
occurred within the Klamath
Management Zone. Similar to inland
waters, we assume that Southern
Resident killer whales respond to
regional and seasonal abundance of
salmon, particularly Chinook salmon
runs. We then adjusted some of the
boundaries to better reflect what we
know about the whales’ use of the areas
(e.g., areas where foraging has been
observed and/or prey samples collected,
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versus areas where whales are
considered mainly to be traveling
through). We selected Cape Meares,
Oregon, as the southern boundary of
Areas 1 and 2 instead of Cape Falcon
just to the north, because the Cape
Meares boundary encompassed all but
one of the observed predation events
and prey sample locations off the
Washington and Oregon coasts. We
selected Cape Mendocino, California, as
the boundary between Areas 4 and 5
instead of Horse Mountain just to the
south because the three predation
events observed in California occurred
off the Eel River just north of Cape
Mendocino, and that boundary better
demarcated the southern extent of a
higher-use area based on the durationof-occurrence model of satellite-tagged
whale movements (NMFS 2021a).
The six specific coastal areas are:
Coastal Area 1—Coastal Washington/
Northern Oregon Inshore Area: U.S.
marine waters west of a line connecting
Cape Flattery, Washington (48°23′10″ N/
124°43′32″ W), Tatoosh Island,
Washington (48°23′30″ N/124°44′12″
W), and Bonilla Point, British Columbia
(48°35′30″ N/124°43′00″ W), from the
U.S. international border with Canada
south to Cape Meares (45°29′12″ N),
between the 6.1–m and 50–m isobath
contours. This area covers 1,437.9 mi2
(3,724.2 km2) and includes waters off
Clallam, Jefferson, Grays Harbor, and
Pacific counties in Washington and
Clatsop and Tillamook counties in
Oregon. The primary essential feature of
this area is prey.
Coastal Area 2—Coastal Washington/
Northern Oregon Offshore Area: U.S.
marine waters west of a line connecting
Cape Flattery, Washington (48°23′10″ N/
124°43′32″ W), Tatoosh Island,
Washington (48°23′30″ N/124°44′12″
W), and Bonilla Point, British Columbia
(48°35′30″ N/124°43′00″ W), from the
U.S. international border with Canada
south to Cape Meares (45°29′12″ N),
between the 50-m and 200-m isobath
contours. This area covers 4,617.2 mi2
(11,958.6 km2), and as with Area 1,
includes waters off Clallam, Jefferson,
Grays Harbor, and Pacific counties in
Washington and Clatsop and Tillamook
counties in Oregon. The primary
essential feature of this area is prey.
Coastal Area 3—Central/Southern
Oregon Coast Area: U.S. marine waters
from Cape Meares (45°29′12″ N) south to
the OR/CA border (42°00′00″ N),
between the 6.1-m and 200-m isobath
contours. This area covers 4,962.6 mi2
(12,853.1 km2) and includes waters off
Tillamook, Lincoln, Lane, Douglas,
Coos, and Curry counties in Oregon.
The primary essential feature of this
area is passage.
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Coastal Area 4—Northern California
Coast Area: U.S. marine waters from the
OR/CA border (42°00′00″ N) south to
Cape Mendocino, CA (40°26′19″ N),
between the 6.1–m and 200-m isobath
contours. This area covers 1,606.8 mi2
(4,161.5 km2) and includes waters off
Del Norte and Humboldt counties in
California. The primary essential feature
of this area is prey.
Coastal Specific Area 5—North
Central California Coast Area: U.S.
marine waters from Cape Mendocino,
CA (40°26′19″ N) south to Pigeon Point,
CA (37°11′00″ N), between the 6.1-m
and 200-m isobath contours. This area
covers 3,976.2 mi2 (10,298.4 km2) and
includes waters off Humboldt,
Mendocino, Sonoma, Marin, San
Francisco, and San Mateo counties in
California. The primary essential feature
of this area is passage.
Coastal Specific Area 6—Monterey
Bay Area: U.S. marine waters from
Pigeon Point, CA (37°11′00″ N) south to
Point Sur, CA (36°18′00″ N), between
the 6.1-m and 200-m isobath contours.
This area covers 709.7 mi2 (1,838.2 km2)
and includes waters off San Mateo,
Santa Cruz, and Monterey counties in
California. The primary essential feature
of this area is prey.
Need for Special Management
Considerations or Protection
Joint NMFS and USFWS regulations
at 50 CFR 424.02 define special
management considerations or
protection to mean methods or
procedures useful in protecting physical
and biological features essential to the
conservation of listed species.
Human activities managed under a
variety of legal mandates have the
potential to affect the habitat features
essential to the conservation of
Southern Resident killer whales,
including those that could increase
water contamination and/or chemical
exposure, decrease the quantity or
quality of prey, or could inhibit safe,
unrestricted passage between important
habitat areas to find prey and fulfill
other life history requirements.
Examples of these types of activities
include (but are not limited to): (1)
Salmon fisheries and fisheries that take
salmon as bycatch; (2) salmon
hatcheries; (3) offshore aquaculture/
mariculture; (4) alternative energy
development; (5) oil spills and response;
(6) military activities; (7) vessel traffic;
(8) dredging and dredge material
disposal; (9) oil and gas exploration and
production; (10) mineral mining
(including sand and gravel mining); (11)
geologic surveys (including seismic
surveys); and (12) activities occurring
adjacent to or upstream of critical
habitat that may affect essential features,
that we refer to as ‘‘upstream’’ activities
(including activities contributing to
point-source water pollution, power
plant operations, liquefied natural gas
terminals, desalinization plants). We
identified these activities based on our
ESA section 7 consultation history since
41683
2006 for existing Southern Resident
killer whale critical habitat, along with
additional information that has become
available since the original designation.
This is not an exhaustive or complete
list of potential activities; rather, these
activities are of primary concern
because of their potential effects that we
are aware of at this time and that should
be considered in accordance with
section 7 of the ESA when Federal
agencies authorize, fund, or carry out
these activities. The ESA section 7
requirement that Federal agencies
ensure their actions are not likely to
destroy or adversely modify critical
habitat applies not only to actions
occurring within designated critical
habitat, but also to actions occurring
outside of designated areas which may
impact the features of the critical
habitat. For example, consultation
would be required on activities that
occur in waters shallower than 20 ft (6.1
m) or in upstream freshwater locations
if those actions are likely to adversely
affect essential habitat features in
designated critical habitat.
Table 1 lists the activities that may
affect the essential features in each of
the six specific coastal areas such that
the essential features may require
special management or consideration.
The Final Biological Report (NMFS
2021a) and FEA (IEc 2021) provide a
more detailed description of the
potential effects of these activities on
the essential features.
TABLE 1—SIZE OF EACH SPECIFIC AREA AND ACTIVITIES THAT MAY AFFECT THE ESSENTIAL FEATURES AND NECESSITATE
THE NEED FOR SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTION WITHIN EACH AREA ARE LISTED. SOME
ACTIVITIES OCCUR UPSTREAM BUT MAY AFFECT FEATURES IN THE SPECIFIC AREA
Size
(mi2) *
Specific area
1—Coastal Washington/Northern Oregon Inshore Area ........
2 —Coastal Washington/Northern Oregon Offshore Area .....
3—Central/Southern Oregon Coast Area ...............................
4—Northern California Coast Area .........................................
5—North Central California Coast Area ..................................
6—Monterey Bay Area ............................................................
1,437.9
4,617.2
4,962.6
1,606.8
3,976.2
709.7
Activities
FISH,
FISH,
FISH,
FISH,
FISH,
FISH,
HAT,
HAT,
HAT,
HAT,
HAT,
HAT,
SPILL, MIL, VESS, DR, POLL, PP.
SPILL, MIL, VESS, DR, POLL, PP.
EN, SPILL, MIL, VESS, DR, GEO, POLL, PP, LNG.
SPILL, MIL, VESS, DR, POLL, PP.
SPILL, MIL, VESS, DR, MIN, POLL, PP.
SPILL, VESS, DR, POLL, PP, DESAL.
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Activities: FISH = fisheries, HAT = hatcheries, EN = alternative energy projects, SPILL = oil spills and response, MIL = military activities, VES
= vessel traffic, DR = dredging and dredge material disposal, MIN = mineral mining, GEO = geologic surveys, POLL = point-source water pollution, PP = power plants, LNG = LNG terminals, DESAL = desalinization plants.
* Revisions to area size from proposed are based on best available spatial data at the time of the final rule.
Unoccupied Areas
The ESA section 3(5)(A)(ii) definition
of critical habitat includes unoccupied
areas, which are defined as specific
areas outside the geographical area
occupied by the species at the time it is
listed if such areas are determined to be
essential to the conservation of the
species. At the present time, we have
not identified additional specific areas
outside the geographic area occupied by
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Southern Resident killer whales that
may be essential for the conservation of
the species. We considered potential
future impacts that climate change
might have on the geographical area
occupied by the whales, particularly
with respect to shifts in distribution of
their salmon prey. In accordance with
NMFS guidance on the treatment of
climate change in NMFS ESA decisions
(NMFS 2016), we determined that there
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is insufficient evidence to identify
unoccupied areas that are essential to
the conservation of Southern resident
killer whales based on potential impacts
from climate change.
Application of ESA Section 4(a)(3)(B)(i)
(Military Lands)
Section 4(a)(3)(B) of the ESA prohibits
designating as critical habitat any lands
or other geographical areas owned or
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controlled by DOD, or designated for its
use, that are subject to an INRMP
prepared under section 101 of the Sikes
Act (16 U.S.C. 670a), if the Secretary of
Commerce determines in writing that
such a plan provides a benefit to the
species for which critical habitat is
being designated.
DOD (Army, Navy, and Air Force)
helped us identify military lands that
may overlap with areas under
consideration for critical habitat. The
Navy identified two military
installations adjacent to these areas,
both of which have INRMPs in place for
land-based installation activities: Pacific
Beach Annex, Naval Station Everett,
Washington, and Naval Support
Activity (NSA) Monterey, California.
Based on our review of these plans,
these two shore-based military areas
covered by INRMPs do not overlap the
critical habitat areas, and thus the
critical habitat areas are not subject to
the INRMPs or ineligible for designation
(see section III.F of the Final ESA
Section 4(b)(2) Report, NMFS 2021b).
Application of ESA Section 4(b)(2)
The foregoing discussion describes
those areas that are eligible for
designation as critical habitat. Specific
areas eligible for designation are not
automatically designated as critical
habitat. As described previously, section
4(b)(2) of the ESA requires that the
Secretary consider the economic impact,
impact on national security, and any
other relevant impacts. The Secretary
may exclude an area from designation if
he determines the benefits of exclusion
outweigh the benefits of designation
based on the best available scientific
and commercial data. The Secretary
may not exclude an area from
designation if exclusion of that area will
result in the extinction of the species.
The first step in conducting an ESA
section 4(b)(2) analysis is to identify the
‘‘particular areas’’ to be analyzed.
Section 3(5)(A) of the ESA defines
critical habitat as ‘‘specific areas,’’ while
section 4(b)(2) of the ESA requires the
agency to consider certain factors before
designating any ‘‘particular area.’’ The
ESA and regulations provide the agency
discretion to determine the scale at
which specific areas (50 CFR 424.12)
and impacts (50 CFR 424.19) are
identified. For this revision to the
designation of Southern Resident killer
whale critical habitat, we identified six
‘‘specific’’ areas off the coasts of
Washington, Oregon, and California, as
described above. For our economic
impact analysis, we defined the
‘‘particular areas’’ to be equivalent to
the ‘‘specific areas.’’ This approach and
scale allowed us to most effectively
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consider the conservation value of the
different areas when balancing
conservation benefit of designation
against economic benefits of exclusion.
Where we considered impacts on
national security or impacts on tribes,
we based the ‘‘particular areas’’ on land
ownership or control (e.g., land
controlled by the DOD within which
national security impacts may exist, or
Indian lands). This approach and scale
allowed us to consider impacts and
benefits associated with management by
the military or land ownership and
management by Indian tribes.
Identify and Determine Impacts of
Designation
The primary impact of a critical
habitat designation stems from the
requirement under section 7(a)(2) of the
ESA that Federal agencies ensure that
their actions are not likely to result in
the destruction or adverse modification
of critical habitat. Determining this
impact is complicated by the fact that
section 7(a)(2) contains the associated
requirement that Federal agencies must
also ensure their actions are not likely
to jeopardize the species’ (in this case
the DPS’) continued existence. The true
impact of this designation is the extent
to which Federal agencies modify their
actions to ensure their actions are not
likely to destroy or adversely modify the
critical habitat of the DPS, beyond any
modifications they would make because
of the DPS’ listing and the jeopardy
provision, and the associated increase in
consultation costs. Additional, indirect
impacts of designation include state and
local protections that may be triggered
as a result of the designation.
In determining the impacts of
designation, consistent with our
regulations (50 CFR 424.19) and policy
(81 FR 7226; February 11, 2016), we
focused on identifying the incremental
impacts. To determine the incremental
impacts of the revised designation, we
examined what the state of the world
would be with and without the addition
of coastal critical habitat for Southern
Resident killer whales. The ‘‘without
the coastal critical habitat’’ scenario
represents the baseline for the analysis.
It includes process requirements and
habitat protections already afforded
Southern Resident killer whales under
their Federal listing or under other
Federal, state, and local regulations. The
‘‘with coastal critical habitat’’ scenario
describes the incremental impacts
associated specifically with the
designation of coastal critical habitat for
Southern Resident killer whales. The
primary potential impacts of critical
habitat designation we identified were:
(1) The economic costs associated with
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additional administrative effort of
including a coastal critical habitat
analysis in section 7 consultations for
Southern Resident killer whales, (2)
impacts to national security, and (3) the
possible harm to our working
relationship with Indian tribes and
possible overlap with tribal lands or
impacts to tribal usual and accustomed
(U&A) areas.
Economic Impacts
The FEA (IEc 2021) prepared by
Industrial Economics, Incorporated
(IEc), sought to determine the impacts
on economic activities due to the
designation of the additional critical
habitat, above and beyond—or
incremental to—those ‘‘baseline’’
impacts due to existing required or
voluntary conservation efforts being
undertaken due to other Federal, State,
and local regulations or guidelines (IEc
2021). Incremental impacts may include
the direct costs associated with
additional effort for section 7
consultations (including consultations
that otherwise would have been limited
to jeopardy issues, reinitiated
consultations, or new consultations
occurring specifically because of the
designation) as well as the direct costs
associated with conservation efforts or
project modifications that would not
have been required under the jeopardy
standard. Incremental impacts may also
include indirect impacts resulting from
reaction to the potential designation of
critical habitat and triggering of
additional requirements under State or
local laws intended to protect sensitive
habitat.
To quantify the economic impact of
designation, the FEA (IEc 2021)
employed the following steps:
(1) Identify the baseline of economic
activity and the statutes and regulations
that constrain that activity in the
absence of the critical habitat
designation in the additional areas;
(2) Identify the types of activities that
are likely to be affected by the critical
habitat designation;
(3) Project the projects and activities
identified in Step 2 over space and time
based on the best available information
on planned projects, permitting
schedules, or average annual levels of
activity;
(4) Estimate the costs of
administrative effort and, where
applicable, conservation efforts or
project modifications recommended for
the activity to comply with the ESA’s
critical habitat provisions;
(5) Apply well-accepted discounting
methods to calculate the present value
cost in each year of the analysis and
sum over time to calculate the total
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present value and annualized impacts;
and
(6) Aggregate the costs at the
particular area level. (Impacts are
reported at the particular area level;
particular areas for the analysis are the
same as the six specific areas.)
The first step in the analysis was to
identify the baseline level of protection
already afforded Southern Resident
killer whales in the additional areas
being proposed as critical habitat. The
baseline for this analysis is the existing
state of regulation prior to the revision
of critical habitat, including the listing
of the species under the ESA (and
protections under ESA sections 7, 9, and
10); ESA protections for listed salmon
given that salmon are included as part
of the prey essential feature of critical
habitat for the whales; protections due
to other co-occurring ESA listings and
critical habitat designations, such as
those for the Southern DPS of North
American green sturgeon (50 CFR
226.219) and leatherback sea turtles (50
CFR 226.207); and other Federal, state
and local laws and guidelines, such as
the MMPA, Clean Water Act, and state
environmental quality laws (IEc 2021).
In step 2, the NMFS West Coast
Region’s record of section 7
consultations and NMFS’ experience
and professional judgment in
conducting section 7 consultations were
used to identify Federal activities that
occur within the areas being considered
for Southern Resident killer whale
critical habitat and that may affect the
critical habitat features. Activities
occurring adjacent to or upstream of
those areas that may affect the water
quality and prey availability essential
features within the critical habitat areas
were also identified. These activities
included salmon fisheries and other
fisheries that have incidental bycatch of
salmon, salmon hatcheries, offshore
aquaculture/mariculture, alternative
energy development, oil spills and
response, military activities, vessel
traffic, dredging and dredge material
disposal, oil and gas exploration and
production, geologic surveys (including
seismic surveys), activities contributing
to point-source water pollution, power
plant operations, liquefied natural gas
terminals, and desalinization plants.
The FEA (IEc 2021) assumes that future
occurrences of these activities within or
affecting critical habitat for the whales
will result in consultation. The
identification of these activities and the
associated threats are further discussed
in the Final Biological Report (NMFS
2021a) and the FEA (IEc 2021).
In steps 3 and 4, the incremental
administrative costs of including
analysis of Southern Resident killer
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whale coastal critical habitat in future
section 7 consultations were estimated.
The occurrence of the projects and
activities identified in step 2 and the
estimated number and type of
consultations were projected over space
and time using the best available
information on planned projects,
permitting schedules, or average annual
level of activities from NMFS’
consultation history for 2006–2016 and
other information sources (e.g., USACE
permit and project data, and interviews
with Federal action agencies). The
administrative costs of a given
consultation vary depending on the type
(i.e., informal, formal, programmatic)
and specifics of the project, and it may
not be possible to predict the level of
effort required for each future
consultation. The analysis accordingly
employed estimated average
incremental administrative costs per
consultation, which were based on the
expected amount of time spent
considering adverse modification as part
of future section 7 consultations.
As described in Chapter 2 of the FEA
(IEc 2021), there are no particular
projects or activities for which NMFS
considers it likely that section 7
consultation on coastal critical habitat
for the killer whales would result in
different conservation efforts than
section 7 consultation without coastal
critical habitat. This analysis refers to
‘‘conservation efforts’’ as a generic term
for recommendations NMFS may make
to modify projects or activities for the
benefit of Southern Resident killer
whales and/or their habitat, required
actions to minimize impacts, or other
efforts that action agencies or other
entities may otherwise undertake to
avoid adverse effects of projects or
activities on Southern Resident killer
whales and/or their habitat.
We regularly consult on the types of
activities relevant to this analysis to
consider the potential for jeopardy to
the listed killer whales, their listed prey,
and other listed species with
overlapping ranges, as well as to
consider the potential for adverse
modification to the critical habitat of
other listed species, and we include
conservation efforts accordingly. This
includes considerations of critical
habitat for other listed species which
have similar essential features as
Southern Resident killer whale critical
habitat. For example, the Southern DPS
of North American green sturgeon, for
which the essential features within
nearshore coastal marine critical habitat
include, among others, a migratory
corridor within marine habitat and
water quality with acceptably low levels
of contaminants. We anticipate that it is
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most likely that these baseline
conservation efforts would involve
measures that would avoid adverse
modification of Southern Resident killer
whale critical habitat because they
directly or indirectly address impacts to
the essential features of the whales’
critical habitat (water quality, prey, and
passage).
In steps 5 and 6, well-accepted
discounting methods were used to
calculate the present value cost in each
year of the analysis, summed over time
to calculate the total present value and
annualized impact, and then aggregated
at the particular area level. As noted
above, for the economic analysis,
‘‘particular areas’’ were defined to be
equivalent to the six ‘‘specific areas’’
occupied by Southern Resident killer
whales off the coasts of Washington,
Oregon, and California. However, due to
the difficulty in determining precise
locations of future consultations
occurring in Areas 1 and 2 off the coast
of Washington (because assignment of
the consultation to Area 1 or 2 would
require specific information about the
activity such as its latitude/longitude or
depth), the FEA (IEc 2021) presents
economic impacts collectively for these
two areas.
Additionally, administrative costs of
consultations on upstream activities
were not assigned to a particular critical
habitat area as there is no information
available to inform the connection
between the particular locations of
upstream activities with the
downstream effects on particular critical
habitat areas. Accordingly, the
incremental economic impacts
associated with consultations on
upstream activities do not reflect the
economic impact of designating any
given area, but rather the expanded
critical habitat as a whole.
The FEA (IEc 2021) estimates the total
present value of the quantified
incremental impacts to be
approximately $710,000 over the next
10 years, assuming a 7 percent discount
rate. Total annualized impacts are
estimated to be $80,000. The increase in
costs between the DEA (IEc 2019) that
accompanied the proposed rule and the
FEA (IEc 2021) that supports this final
rule reflects updates to the timeframe of
the analysis and the dollar year, as
opposed to changes in the costs of
consultations. The evaluation of costs
associated with each particular area is
complicated by the fact that many
activities and consultations span more
than one area, and because costs to
Areas 1 and 2 could not be estimated
separately. However, annualized
impacts from projects occurring in only
one area (or two in the case of Areas 1
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and 2) ranged from a low of $1,300 for
area 6 to $10,000 for Areas 1/2. Over 40
percent of estimated impacts occur
upstream (or outside of) of critical
habitat areas. The largest share of
estimated present value economic
impacts are associated with dredging
and in-water construction and ‘‘other’’
activities (see IEc 2021 for more details).
National Security Impacts
During preparations for the proposed
revision to Southern Resident killer
whale critical habitat, we provided DOD
(Navy, Army, and Air Force) with
information regarding the areas under
consideration for Southern Resident
killer whale critical habitat, and
requested they identify any impacts to
national security that might arise from
the proposed designation of critical
habitat. In addition, we considered
information regarding potential national
security impacts provided by the USCG
(Department of Homeland Security) in
their response to our 90-day finding on
the petition to revise critical habitat.
The Army did not provide a response.
The Air Force stated that it had not
identified any significant concerns with
the proposed revision of Southern
Resident killer whale critical habitat to
include coastal waters along the U.S.
West Coast. The Navy stated that it
conducts training and testing activities,
collectively referred to as ‘‘military
readiness activities,’’ within the coastal
areas being considered for designation
as critical habitat. Specifically, military
readiness activities occur in the offshore
Pacific Northwest Ocean Surface/
Subsurface Operating Area (OPAREA),
Warning Area 237 (W–237), and the
Olympic A and B Military Operation
Areas (MOA), which are all considered
at-sea components of the Northwest
Training Range Complex (NWTRC), as
well as in the QRS, which is a
component of the Keyport Range
Complex. The Navy refers to all the atsea areas used for training and testing as
the Northwest Training and Testing
(NWTT) study area. The Navy believes
there would be national security
impacts where specific coastal areas 1
and 2 proposed for designation overlap
with the QRS. The Navy requested
exclusion of the QRS (including its
associated surf zone off the coast of
Pacific Beach, Washington) from the
proposed critical habitat based on
national security impacts arising from
additional mitigation requirements that
have the potential to impact the
effectiveness of ongoing and future
testing activities (NMFS 2021b). During
the pre-publication inter-agency review
process for the proposed rule (84 FR
49214, September 19, 2019), the Navy
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also requested exclusion of a 10-km
(6.2-mi) buffer around the QRS. The
Navy stated that they used site-specific
oceanographic conditions and the best
available science establishing fish injury
thresholds (Popper et al. 2014) to
determine that sound and energy levels
from the largest explosives that could be
used in the QRS may cause injuries to
fish (i.e., prey species) out to 10 km
beyond the boundary of the QRS. If the
QRS alone were excluded (without the
buffer), the largest explosives in the
QRS may affect the prey feature within
proposed critical habitat (in the buffer
area). The Navy argued that there would
be national security impacts if NMFS
required additional mitigation that
resulted in the Navy having to halt,
reduce in scope, or geographically/
seasonally constrain testing activities to
prevent adverse effects or adverse
modification of critical habitat.
The USCG also provided information
on potential impacts to national security
and maritime safety. The USCG stated
that expanded critical habitat might
impair its ability to safely conduct
defense readiness and additional
missions if the designation results in
restrictions to the ability of USCG
maritime assets to transit, deploy, train,
and/or conduct gunnery exercises
within the critical habitat areas. These
additional missions include emergency
response, search and rescue, law
enforcement, conservation activities,
and training operations. With respect to
gunnery exercises, it noted that USCG
Section/Station/Maritime Force
Protection Unit boats are limited to
going a maximum of 10 to 50 mi (16–
80.5 km) offshore depending on vessel
type, and requiring them to go over 50
mi would be unsafe and provide
unrealistic training/gunnery scenarios to
effectively become proficient with
meeting mission objectives. In general,
USCG Sector/Station assets conduct
gunnery exercises with small arms and
ammunition, pistols, and up to .50
caliber machine guns. Major afloat
cutters conduct exercises with small
arms and ammunition, in addition to
more sophisticated systems (i.e., 25
millimeter (mm), 57 mm, and 76 mm
guns, close-in weapon systems), but
rarely conduct exercises in the areas
under consideration for critical habitat,
with the exception of the NWTRC.
Although we have not conducted a
section 7 analysis on a particular
proposed action and we are not
predetermining any future ESA
conclusions now, as a general matter,
and based on the information currently
available, we consider it unlikely that
the USCG’s routine operations in
support of emergency response,
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homeland security, law enforcement,
and conservation affect the essential
features of Southern Resident killer
whale critical habitat, and, as such, we
do not expect designation of critical
habitat will have a national security
impact on these activities. Separately,
we consider the USCG’s concerns
regarding potential national security
impacts to their defense readiness
activities to be generally overlapping
with those of the Navy, given the
similarities in some of the USCG’s
activities (i.e., gunnery exercises
involving small- and large-caliber
projectiles, similar to the Navy’s
surface-to-surface gunnery exercises)
and area of operations (i.e., generally the
NWTRC). The USCG does not use these
types of explosives in their defense
readiness activities, and thus we
consider it unlikely that the USCG
would have national security concerns
beyond those conveyed by the Navy.
As documented in our Final ESA
Section 4(b)(2) Report (NMFS 2021b),
we assessed several factors to evaluate
the potential impacts of designating
critical habitat within the QRS and a 10km buffer around it, such as the size and
percentage of the QRS and buffer that
would be designated; the importance of
the area to the Navy mission and
military readiness; the likelihood that
Navy activities would destroy or
adversely modify critical habitat and
that NMFS would require project
modification to avoid adverse effects or
modification of critical habitat, thus
potentially negatively impacting the
effectiveness of the Navy’s training and
testing activities); the level of protection
provided to one or more essential
features by existing DOD safeguards
(e.g., management or protection already
in place); and the likelihood that other
Federal actions may occur in the site
that would no longer be subject to the
critical habitat provision if the
particular area were excluded from the
designation.
Other Relevant Impacts—Impacts to
Tribal Sovereignty and Self-Governance
The longstanding and distinctive
relationship between the Federal and
tribal governments is defined by
treaties, statutes, executive orders,
judicial decisions, and agreements,
which differentiate tribal governments
from other entities that interact with, or
are affected by, the Federal Government.
This relationship has given rise to a
special Federal trust responsibility
involving the legal responsibilities and
obligations of the United States toward
Indian tribes and with respect to Indian
lands, tribal trust resources, and the
exercise of tribal rights. Pursuant to
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these authorities, lands have been
retained by Indian tribes or have been
set aside for tribal use. These lands are
managed by Indian tribes in accordance
with tribal goals and objectives within
the framework of applicable treaties and
laws. Executive Order (E.O.) 13175,
Consultation and Coordination with
Indian Tribal Governments, outlines the
responsibilities of the Federal
Government in matters affecting tribal
interests.
There is a broad array of activities on
Indian lands that may trigger ESA
section 7 consultations. Indian lands are
those defined in the Secretarial Order
American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the
ESA (June 5, 1997), including: (1) Lands
held in trust by the United States for the
benefit of any Indian tribe; (2) land held
in trust by the United States for any
Indian tribe or individual subject to
restrictions by the United States against
alienation; (3) fee lands, either within or
outside the reservation boundaries,
owned by the tribal government; and (4)
fee lands within the reservation
boundaries owned by individual
Indians.
In developing the proposed rule, we
reviewed maps and did not identify any
areas under consideration as coastal
critical habitat that overlap with Indian
lands, because the shoreward extent of
the areas under consideration for
designation is 20 ft (6.1 m) water depth.
Based on this, we preliminarily found
that there were no Indian lands subject
to consideration for possible exclusion.
However, our preliminary assessment
indicated that the following federally
recognized tribes (83 FR 4235; January
30, 2018) have lands that may be in
close proximity to areas under
consideration for designation as critical
habitat for Southern Resident killer
whales, have usual and accustomed
(U&A) fishing areas that overlap with
critical habitat areas, or may otherwise
be affected: Confederated Tribes of the
Chehalis Reservation, Hoh Indian Tribe,
Makah Indian Tribe, Quileute Tribe,
Quinault Indian Nation, and Shoalwater
Bay Indian Tribe in Washington;
Confederated Tribes of Coos, Lower
Umpqua, and Siuslaw Indians,
Confederated Tribes of the Siletz
Indians, and Coquille Indian Tribe in
Oregon; and Cher-Ae Heights Indian
Community of the Trinidad Rancheria,
Hoopa Valley Tribe, Karuk Tribe, Big
Valley Band of Pomo Indians, Tolowa
Dee-Ni’ Nation, Wiyot Tribe, and Yurok
Tribe in California. We also identified
the non-federally recognized Wintu
Tribe of Northern California as a tribal
entity that may be affected by critical
habitat designation.
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We contacted each of these tribes to
solicit comments regarding Indian lands
that may overlap and may warrant
exclusion from critical habitat for
Southern Resident killer whales. We
also sought information from these
tribes concerning other tribal activities
that may be affected in areas other than
tribal lands (e.g., tribal fisheries in usual
and accustomed coastal marine areas).
We received responses from two
tribes in Washington and California.
The tribes were primarily concerned
with the potential impact of the critical
habitat designation on tribal fisheries,
particularly within U&A fishing areas
located in coastal marine waters. As
described in the DEA and FEA (IEc
2019, 2021) while it is possible that the
critical habitat designation could result
in recommendations for changes in
fishery management, we consider this
unlikely, given the existing
consideration of fisheries’ impacts on
Southern Resident killer whales and
their prey (including ESA-listed salmon)
in ESA section 7 consultations in the
jeopardy analysis and the
implementation of management
strategies and actions for the
conservation and recovery of these
species (IEc 2019, 2021). However, we
will continue to coordinate and consult
with potentially affected tribes
throughout the rulemaking process.
Exclusion of Areas Under Section
4(b)(2) of the ESA
As stated previously, the Secretary
may exclude an area from designation if
he determines the benefits of exclusion
outweigh the benefits of designation
based on the best available scientific
and commercial data. This discretion is
limited, however, in that the Secretary
may not exclude an area from
designation if exclusion will result in
the extinction of the species (ESA
section 4(b)(2)).
We decided to exercise the discretion
delegated to us by the Secretary to
conduct an exclusion analysis and
balance the benefits of designation
against the benefits of exclusion.
Benefits of critical habitat designation
are those conservation benefits to the
species, while benefits of exclusion
result from avoiding the impacts of
designation identified above. Below we
describe the benefits of designation,
then further consider and weigh the
benefits of designation and exclusion
based on economic and national
security impacts. (As discussed above,
we preliminarily found that there were
no Indian lands subject to consideration
for possible exclusion). We have broad
discretion as to which factors to
consider as benefits of designation and
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benefits of exclusion, and what weight
to assign to each factor—nothing in the
ESA, its implementing regulations, or
our Policy Regarding Implementation of
Section 4(b)(2) of the ESA (‘‘4(b)(2)
Policy’’) limits this discretion (50 CFR
424.19; 81 FR 7226, February 11, 2016).
We also relied on a qualitative costbenefit analysis, as described in Office
of Management and Budget (OMB)
Circular A–4.
Benefits of Designation
The primary benefit of designation is
the protection afforded under section 7
of the ESA, requiring all Federal
agencies to ensure their actions are not
likely to destroy or adversely modify
designated critical habitat. This is in
addition to the requirement that all
Federal agencies ensure their actions are
not likely to jeopardize the continued
existence of the species. The revision to
the critical habitat designation is also
expected to provide benefits by
informing the entities engaged in
section 7 consultations and the general
public about the status of Southern
Resident killer whales, including the
coastal areas and features (or habitat)
important to whales’ conservation.
Other forms of benefits that may be
attributed to the conservation and
recovery of Southern Resident killer
whales (although not specifically
attributed to the designation of critical
habitat), include use benefits (e.g., for
wildlife viewing), non-use or passive
use benefits (e.g., existence, option, and
bequest values), and ancillary ecosystem
service benefits (e.g., water quality
improvements and enhanced habitat
conditions for other marine and coastal
species). Some species, including
Southern Resident killer whales, also
have significant spiritual and cultural
value to particular communities, such as
tribes. Such values are generally not
expressed in monetary terms.
These benefits are not directly
comparable to the costs of designation
for purposes of conducting the section
4(b)(2) analysis. Ideally, benefits and
costs should be compared on equal
terms in the same units. However, there
is insufficient information regarding the
extent of the benefits and the associated
values to monetize all of these benefits.
Because we could not quantify or
monetize all of the benefits of revising
the critical habitat designation for
Southern Resident killer whale
discussed above, we qualitatively
described the conservation value of the
areas to the DPS.
As discussed in Appendix B of the
Final ESA Section 4(b)(2) Report (NMFS
2021b), we considered categories of
information to characterize Southern
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Resident killer whales’ relative use of
the particular areas and the importance
of physical and biological features in the
areas. However, gaps in or limitations of
existing data made an evaluation across
all of the areas using any sort of
quantitative scoring system challenging.
For example, the proportion of prey
samples collected from each area might
be used to characterize the areas’
relative importance for foraging, where
a higher proportion of samples might
indicate greater foraging or prey
resources. However, nearly all (93
percent) of the prey samples were
collected during field efforts directed by
the locations of satellite-tagged whales,
and satellite-tagged whales did not go
into Area 6, so this metric would
underestimate the conservation value of
Area 6. (Predation has been observed
but not sampled in Area 6; Black et al.
2001). Any spatial bias in NMFS’ and
partners’ ability to conduct on-water
response in particular locations to
collect prey samples would also limit
the usefulness of this factor for
comparing relative importance of the
critical habitat areas. Another potential
metric we considered was the
proportion of confirmed opportunistic
sightings of Southern Resident killer
whales observed in the area, or number
of sightings per unit area. However,
while opportunistic sightings data
provide information on when and where
whales occur along the coast, they are
less useful for informing a relative
ranking of the whales’ use of the
specific areas due to their spatial bias
(e.g., sightings may be influenced by
locations of population centers or whale
watching operations). Therefore, we
determined that the most appropriate
approach was to qualitatively assess the
conservation value of each area using
the available data, mindful of the spatial
and temporal gaps and potential biases.
Based on the available information on
the whales’ use of the areas (and
considering gaps in information), and
the physical and biological features
essential to the whales’ conservation,
we considered the conservation value of
each coastal area to be high. However,
we considered the value of Areas 1 and
2 to be very high relative to the other
coastal areas, given the whales’
particularly high use of portions of the
areas, as indicated by models of satellite
tag data (they are the only coastal
critical habitat areas with usage in some
locations that is more than two and
three standard deviations above the
mean), acoustic data indicating higher
rates of detections than would be
expected based on monitoring effort
(Hanson et al. 2013), the documented
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use by all three pods, year-round use of
the areas, and observations of foraging
with a substantial number of prey
samples collected in portions of the
areas.
Weighing Economic Impacts
The FEA (IEc 2021) concluded that
costs attributed to the revision of the
Southern Resident killer whale critical
habitat designation are largely
administrative in nature and that a
majority of those costs are borne by
Federal agencies. Only a small cost of
consultation (total annualized impacts
of $9,000, discounted at 7 percent) are
estimated to be borne by a small number
(1–8) of non-Federal small entities
(businesses or governments).
In accordance with section 4(b)(2) of
the ESA, its implementing regulations
(50 CFR 424.19) and the 4(b)(2) Policy
(81 FR 7226; February 11, 2016), in
evaluating the exclusion of areas based
on probable economic impacts, we
considered the nature of those impacts
and not a particular threshold level.
Additionally, we considered the
following factors:
(1) Section 2 of the ESA provides that
a purpose of the act is to provide a
means whereby the ecosystems upon
which endangered species and
threatened species depend may be
conserved.
(2) In listing Southern Resident killer
whales under the ESA, we concluded
that the current and threatened
destruction or adverse modification of
the species’ habitat is likely contributing
to fluctuations in abundance and
exacerbating the risk of extinction
naturally faced by a small population
(70 FR 69903, November 18, 2005). We
identified contaminants, vessel traffic,
and changes in prey availability as
factors that have modified the whales’
habitat and considered them to be
threats to the species.
(3) As described above, the six
particular areas under consideration for
critical habitat designation are all of
high or very high conservation value.
(4) The economic impacts to Federal
agencies and non-Federal entities of
designating each of the six particular
areas are small (the largest annualized
impacts are $10,000 in Areas 1 and 2
combined), as is the annualized
economic impact of designating the
entire area ($80,000). The potential
economic impacts borne by non-Federal
entities of designating all six areas are
even smaller (total annualized impacts
of $9,000 over the next 10 years,
discounted at 7 percent), with one to
eight non-Federal entities expected to be
affected. This reflects approximately six
consultations per year that may involve
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non-Federal entities, for example,
businesses engaged coastal and in-water
construction activities, renewable
energy developments, or seismic
surveys.
For these reasons, we conclude that
the economic benefit of excluding any
of the particular areas does not
outweigh the conservation benefit of
designation. Therefore, none of the areas
are excluded based on economic
impacts.
Weighing Impacts to National Security
and Exclusion
As described above, we consulted
with the DOD regarding the activities
taking place at sites managed by DOD
and the potential impact of designating
critical habitat at these sites. A reply
from the Air Force (AF) stated: ‘‘At this
time the AF has not identified any
significant concerns with the proposed
addition of Southern Resident killer
whale critical habitat to coastal waters
along the U.S. West Coast as depicted
on the provided map.’’ The Navy stated
that it believes there would be national
security impacts where critical habitat
coastal areas 1 and 2 overlap the QRS,
including its associated surf zone off the
coast of Pacific Beach, Washington, and
a 10-km buffer around it, and requested
exclusion of this particular area from
critical habitat. The Navy provided
information on testing activities
proposed in the QRS beyond 2020 and
into the foreseeable future, and
identified national security concerns
regarding potential impacts to their
national mission and ongoing and future
Navy testing activities if critical habitat
were designated there or within a 10-km
buffer around the QRS.
We weighed the conservation benefits
of designation to Southern Resident
killer whales against the benefits of
exclusion for the combined area of the
QRS and a 10-km buffer around it. We
considered various factors relevant to
assessing the benefits of exclusion
including:
(1) The size of the DOD site, the
percentage of the DOD site that would
be designated (because only a portion of
the DOD site is within critical habitat),
and the percentage of the proposed
specific area(s) that overlaps with the
DOD site (because the DOD site overlaps
with only a portion of the critical
habitat area(s));
(2) The importance of the area to the
Navy’s national mission (e.g.,
frequency/intensity of use, complexity
of Navy actions within it, and
significance and uniqueness of the site
to the overall Navy mission);
(3) The likelihood of an ESA section
7 consultation with the DOD in this site;
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(4) The likelihood that DOD activities
would destroy or adversely modify
critical habitat; based on the DOD’s
activities at the site, and that NMFS
would require project modifications to
reduce or avoid these impacts;
(5) The level of protection provided to
one or more essential feature by existing
DOD safeguards (e.g., management or
protection already in place); and
(6) The likelihood that other Federal
actions may occur in the site that would
no longer be subject to the critical
habitat provision if the particular area
were excluded from the designation.
Depending on available information,
each of these factors may weigh either
in favor of exclusion of the area or in
favor of designation of the area. We give
great weight to the national security and
defense missions (81 FR 7226; February
11, 2016). We weighed this information
against the benefits of designating the
site, which was based on the
conservation value rating for the
specific area(s) overlapping the DOD
site, as well as more specific
information regarding Southern
Resident killer whale use of the DOD
site. As documented in the Draft ESA
Section 4(b)(2) Report (NMFS 2019b),
based on the great weight afforded
military impacts, the unique training in
support of military readiness that occurs
within the QRS, and the potential delay
in critical missions in order to complete
adverse modification analyses, in the
proposed rule (84 FR 49214, September
19, 2019) we found that the national
security impacts tip the scale and
outweigh the limited impact to
conservation values in just over onefourth of the identified critical habitat
Areas 1 and 2 where those areas overlap
with the QRS and a 10-km buffer around
it. We determined that the benefit to
national security of excluding this
particular area outweighed the
conservation benefit of designation, and
exclusion of the area would not result
in extinction of the species (DPS).
Therefore, we proposed excluding the
QRS and a 10-km buffer around it from
the critical habitat designation. The total
area proposed for exclusion was 1,687.9
mi2 (4,371.5 km2) or 9.7 percent of
potential coastal critical habitat.
As described above, we received
many public comments on the proposed
rule (84 FR 49214, September 19, 2019)
opposing the exclusion because it
would allow the Navy to conduct
activities such as sonar and testing of
explosives in the excluded area without
considering effects to critical habitat.
Comments also noted that part of the
QRS overlaps with the OCNMS.
As discussed in the Final ESA Section
4(b)(2) Report (NMFS 2021b), to weigh
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the national security impacts against
conservation benefits of a potential
critical habitat designation, we
considered the size of the requested
exclusion and the amount of overlap
with the specific critical habitat area;
the relative conservation value of the
specific area for the Southern Resident
killer whale; the importance of the site
to the Navy mission and military
readiness; the likelihood that the Navy’s
activities would destroy or adversely
modify critical habitat, and the
likelihood that NMFS would require
project modifications to reduce or avoid
these impacts; and, the likelihood that
other Federal actions may occur in the
site that would no longer be subject to
the critical habitat provision if the
particular area were excluded from the
designation. In response to the public
comments, we reconsidered these
factors, information provided by the
Navy, and requested additional
information from the Navy regarding its
activities in the portion of the QRS that
also falls within the OCNMS.
The QRS and proposed 10-km buffer
comprise about 39 percent of Area 1
(Coastal Washington/Northern Oregon
Inshore) and about 25 percent of Area 2
(Coastal Washington/Northern Oregon
Offshore), and about 28 percent of Areas
1 and 2 combined, but a very small
portion of the total critical habitat
designations for the Southern Resident
killer whale (8.5 percent). The QRS and
associated buffer also have a significant
degree of overlap with the OCNMS,
where certain activities are prohibited
or not authorized, including oil, gas, or
mineral exploration, development, or
production; discharging or depositing
any material or other matter; drilling
into, dredging, or otherwise altering the
seabed, with some exceptions (15 CFR
922.152). Because of these prohibitions,
the likelihood of other Federal activities
being proposed in this area of the QRS
may be limited.
In support of its request for exclusion
of this particular area, the Navy pointed
to the extensive range of planned
activities, which are described in its
Final Northwest Training and Testing
(NWTT) Supplemental Environmental
Impact Statement (SEIS) published on
September 18, 2020, and stated that any
additional, future modifications to these
activities to minimize impacts on
Southern Resident killer whale critical
habitat would impact the Navy’s ability
to meet mission requirements. The Navy
pointed to the use of explosives, in
particular, as being likely to have
adverse effects on killer whale prey,
although not likely at the population
level for salmon prey. In its initial
request, dated December 5, 2018, the
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Navy stated that if additional mitigation
requirements result in having to halt,
reduce in scope, or geographically or
seasonally constrain testing activities to
prevent adverse effects to critical
habitat, this would in turn impact their
ability to test and field new systems and
platforms. To avoid potential,
additional, spatial restrictions on their
activities within the QRS, the Navy also
requested exclusion of an additional 10km buffer around the QRS from the
critical habitat designation. The Navy
determined the size for this buffer using
sound attenuation modeling to calculate
the farthest distance at which fish
would be expected to be injured from
the largest explosive the Navy can
reasonably foresee testing in the QRS;
and, in subsequent communications, the
Navy further clarified that the size of the
buffer also incorporated uncertainty for
updates in resource-related science,
changes in oceanographic conditions
that could reduce attenuation, and the
evolution of military technologies that
may behave differently in the
environment. This buffer was then
added to the QRS boundaries that
overlapped with the Southern Resident
killer whale critical habitat.
We continue to find that the Navy has
provided a reasonably specific
justification to support the requested
exclusion of the QRS, and consistent
with our Section 4(b)(2) Policy (81 FR
7226, February 11, 2016), we gave great
weight to these concerns when
analyzing the benefits of exclusion. Our
consideration of the multiple factors
discussed, coupled with the potential
delay in critical missions in order to
complete adverse modification analyses,
caused us to continue to find that the
benefits of excluding the QRS due to
national security impacts outweigh the
benefits of designating this portion of
Areas 1 and 2 as critical habitat for the
Southern Resident killer whales.
However, we are modifying our
proposed exclusion of the buffer area.
Specifically, we are not excluding a
portion of the 10 km buffer area around
the northeast corner of the QRS,
extending along the East side of the
QRS, where it overlaps with the
OCNMS. As detailed in the Section
4(b)(2) Report (NMFS 2021b), we
concluded the benefits of designating
critical habitat for the Southern
Resident killer whales within this
portion of the buffer are not outweighed
by national security impacts of
including that portion at this time.
The Navy does not currently use or
currently plan to use explosives in the
northeast corner of the QRS extending
along the East side of the QRS, where it
overlaps with the OCNMS; therefore,
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potential impacts to the Southern
Resident killer whale critical habitat are
unlikely to extend into the OCNMS. The
Navy provided additional information
to NMFS clarifying the impact to
national security should the full 10 km
buffer around the QRS not be excluded
from designation as critical habitat. The
Navy noted that the current limitation
on conducting underwater explosives in
this portion of the QRS is based on
mitigation measures the Navy proposed
in its NWTT SEIS (September 2020) and
associated ESA and MMPA compliance
documentation, which preclude the use
of all underwater explosives for training
and testing within 50 nmi from shore,
with the exception of mine
countermeasures neutralization
activities which occur in the QRS where
it does not overlap with the OCNMS.
The Navy concluded it was practicable
to implement this restriction; however,
all Navy mitigation measures allow for
deviations (in consultation with NMFS)
if driven by new and immediate
national security requirements. Further,
the Navy reviews its mitigation
measures annually and can modify
those mitigation measures as driven by
evolving military readiness
requirements, also in consultation with
NMFS. The Navy stated that because
techniques and tactics needed for
national security can rapidly evolve, it
is possible that modifications to current
activities and the development of new
technologies will require testing in areas
that may not be currently utilized for
underwater explosives.
Furthermore, the portion of the buffer
that extends beyond 10 km into the
OCNMS, which we are not excluding,
comprises an area of very high
conservation value to the whales. As
described in the Final ESA section
4(b)(2) Report, we considered the
conservation value of Areas 1 and 2 to
be very high relative to the other coastal
areas, given the whales’ high use of
portions of the areas particularly for
foraging, the documented use by all
three pods, and year-round use of the
areas (NMFS 2021b). Not excluding this
portion of the buffer also creates a
corridor of critical habitat between the
coastline and the eastern boundary of
the QRS for most of the length of the
QRS exclusion, which supports whale
passage between critical habitat areas to
the north and south of the QRS
exclusion. Given the very high
conservation value of this area for the
whales, though there are national
security impacts as described by the
Navy, we found that the benefits of
excluding this portion of the buffer due
to national security impacts did not
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outweigh the conservation benefits of
designating this area (e.g., see Appendix
A Figure 4, Section 4(b)(2) Report,
NMFS 2021b) as critical habitat for the
Southern Resident killer whales. NMFS
notes that should the Navy’s
requirements change in such a manner
that materially affects how it will
conduct activities within the QRS, the
Navy will provide NMFS with an
updated explanation of impacts to
national security and NMFS will
reconsider whether those impacts
outweigh the benefits of retaining a
portion of the 10 km buffer areas as
critical habitat.
With this reduction in extent of the 10
km buffer within OCNMS, the total area
of exclusion in the final rule is 1,400.4
mi2 (3,627 km2) or 8.1 percent of
potential coastal critical habitat. This
final excluded area comprises 24.4
percent and 22.7 percent of areas 1 and
2 each, respectively, but generally not in
portions of areas 1 and 2 that have the
highest use by Southern Resident killer
whales.
Final Revised Critical Habitat
Designation
We are designating approximately
15,910 mi2 (41,207 km2) of marine
habitat within the area occupied by
Southern Resident killer whales along
the coasts of Washington, Oregon, and
California. Combined with the currently
designated critical habitat in inland
waters of Washington (2,560 mi2 (6,630
km2)), the total designation comprises
approximately 18,470 mi2 (47,837 km2).
In both the currently designated and
new critical habitat, areas with water
less than 20 ft (6.1 m) deep are not
included as critical habitat. As
described in the preamble to the final
rule designating critical habitat in
inland waters (71 FR 69054; November
29, 2006), due to a lack of bathymetry
data, we were not able to subtract the
shallow areas from the estimate of the
inland critical habitat area, so the
estimated area of this portion of the
critical habitat is an overestimate.
However, high-quality shoreline and
bathymetry data were available for the
outer coastal areas, so we were able to
interpolate a 20-ft depth contour as the
inshore boundary and include only the
designated areas in the coastal area
calculations. However, the coastal
shoreline product we used to delineate
the coastal areas, NOAA’s Continually
Updated Shoreline Product, uses mean
high water as the vertical datum (the
surface of zero elevation to which
heights are referenced), so the inshore
boundary of coastal critical habitat is 20
ft of water depth relative to mean high
water and, therefore, our estimates of
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area are more accurate. This is in
contrast to the inshore boundary for
critical habitat in inland waters, which
uses 20 ft water depth relative to
extreme high water, which
overestimates total area.
The designated areas are occupied
and contain physical or biological
features that are essential to the
conservation of the species and that may
require special management
considerations or protection. The Navy’s
QRS and a modified 10-km buffer
around it is not included in the
designation (and is not included in the
area calculations above) because we
determined the benefits to national
security of exclusion (that is, avoiding
the impact that would result from
designation) outweigh the benefits of
designation. We determined that the
economic benefits of excluding any of
the areas do not outweigh the benefits
of designation. Therefore, we are not
excluding any areas based on economic
impacts. Section 4(b)(2) does not allow
the agency to exclude areas if exclusion
will result in extinction of the species.
We are excluding only a small
percentage of the whales’ habitat (8.1
percent of coastal habitat; 7.0 percent of
coastal and inland habitat combined)
because of impacts to national security.
The exclusion does represent a larger
portion of the two specific critical
habitat areas off the coast of Washington
(around 23–24 percent of each of these
two coastal areas), which are considered
high-use and important foraging areas
for Southern Resident killer whales.
But, the highest use areas for foraging
are just south of the QRS, and only a
small portion of the highest use areas
are within the 10-km buffer or the QRS.
Given the small percentage of total
coastal habitat and that most of the
highest use by Southern Resident of
Washington areas is not in the QRS, we
conclude that the exclusion of these
areas will not result in extinction of the
Southern Resident killer whale DPS. No
unoccupied areas are included in this
designation.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires
Federal agencies, including NMFS, to
ensure that any action authorized,
funded or carried out by the agency
(agency action) is not likely to
jeopardize the continued existence of
any threatened or endangered species or
destroy or adversely modify designated
critical habitat. When a species is listed
or critical habitat is designated, Federal
agencies must consult with us on any
agency action that may affect the listed
species or its critical habitat. During the
consultation, we evaluate the agency
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action to determine whether the action
may adversely affect listed species or
critical habitat and issue our findings in
a biological opinion. If we conclude in
the biological opinion that the agency
action would likely result in the
destruction or adverse modification of
critical habitat, we would also
recommend any reasonable and prudent
alternatives to the action. Reasonable
and prudent alternatives are defined in
50 CFR 402.02 as alternative actions
identified during formal consultation
that can be implemented in a manner
consistent with the intended purpose of
the action, that are consistent with the
scope of the Federal agency’s legal
authority and jurisdiction, that are
economically and technologically
feasible, and that would avoid the
destruction or adverse modification of
critical habitat.
Regulations at 50 CFR 402.16 require
Federal agencies that have retained
discretionary involvement or control
over an action, or where such
discretionary involvement or control is
authorized by law, to reinitiate
consultation on previously reviewed
actions in instances where: (1) Critical
habitat is subsequently designated; or
(2) new information or changes to the
action may result in effects to critical
habitat not previously considered in the
biological opinion. Consequently, some
Federal agencies may request
reinitiation of consultation with NMFS
on actions for which formal
consultation has been completed, if
those actions may affect designated
critical habitat. Activities subject to the
ESA section 7 consultation process
include activities on Federal lands, as
well as activities requiring a permit or
other authorization from a Federal
agency (e.g., a section 10(a)(1)(B) permit
from NMFS), or some other Federal
action, including funding (e.g., Federal
Highway Administration (FHA) or
Federal Emergency Management Agency
(FEMA) funding). ESA section 7
consultation would not be required for
Federal actions that do not affect listed
species or critical habitat, and would
not be required for actions on nonFederal and private lands that are not
carried out, funded, or authorized by a
Federal agency.
Activities That May Be Affected
ESA section 4(b)(8) requires, to the
maximum extent practicable, in any
regulation to designate critical habitat,
an evaluation and brief description of
those activities (whether public or
private) that may adversely modify such
habitat or that may be affected by such
designation. A wide variety of activities
may affect Southern Resident killer
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whale critical habitat and may be
subject to the ESA section 7
consultation processes when carried
out, funded, or authorized by a Federal
agency. These include: (1) Salmon
fisheries and other fisheries that have
incidental bycatch of salmon; (2) salmon
hatcheries; (3) offshore aquaculture/
mariculture; (4) alternative energy
development; (5) oil spills and response;
(6) military activities; (7) vessel traffic;
(8) dredging and dredge material
disposal; (9) oil and gas exploration and
production; (10) mineral mining
(including sand and gravel mining); (11)
geologic surveys (including seismic
surveys); and (12) activities occurring
adjacent to or upstream of critical
habitat that may affect essential features,
that we refer to as ‘‘upstream’’ activities
(including activities contributing to
point-source water pollution, power
plant operations, liquefied natural gas
terminals, desalinization plants).
Section 7 consultations must be based
on the best scientific and commercial
information available when they are
undertaken, and outcomes are casespecific. Inclusion (or exclusion) from
this list, therefore, does not
predetermine the occurrence or outcome
of any consultation.
Private or non-Federal entities may
also be affected by this critical habitat
designation if a Federal permit is
required, Federal funding is received, or
the entity is involved in or receives
benefits from a Federal project. These
activities would need to be evaluated
with respect to their potential to destroy
or adversely modify Southern Resident
killer whale critical habitat. For ongoing
activities, this designation of critical
habitat may trigger reinitiation of past
consultations. Although we cannot
predetermine the outcome of section 7
consultations, we do not anticipate at
this time that the outcome of reinitiated
consultations would likely require
additional conservation efforts, because
effects to Southern Resident killer
whales and their prey species would in
most instances have been assessed in
the original consultation. We are
committed to working closely with
other Federal agencies to conduct any
reinitiated consultations in an efficient
and streamlined manner to the
maximum extent possible and
consistent with our statutory and
regulatory requirements. Questions
regarding whether specific activities
would constitute destruction or adverse
modification of critical habitat should
be directed to NMFS (see ADDRESSES
and FOR FURTHER INFORMATION CONTACT).
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Technical Changes to the Southern
Resident Killer Whale Critical Habitat
Regulations
In addition to designating coastal
critical habitat, we are making three
technical changes to the existing
Southern Resident killer whale critical
habitat regulations in 50 CFR 226.206.
First, the introductory paragraph of the
existing regulations states that the
textual descriptions of critical habitat
are the definitive source for determining
the critical habitat boundaries and the
overview map is provided for general
guidance purposes only. In 2012, NMFS
and the USFWS revised the ESA
implementing regulations to specify that
the boundaries of critical habitat as
mapped or otherwise described in the
regulations will be the official
delineation of the designation (77 FR
25611; May 1, 2012). To comply with
this revision, we are deleting the second
and third sentences of the introductory
paragraph of 50 CFR 226.206, and
replacing them with the following: The
maps, clarified by the textual
descriptions in this section, are the
definitive source for determining the
critical habitat boundaries.
Second, the existing regulations
specify primary constituent elements
(PCE) essential for conservation of
Southern Resident killer whales. In
2016, NMFS and the USFWS revised the
ESA implementing regulations to
remove the term PCE and replaced it
with the statutory term ‘‘physical or
biological features’’ (81 FR 7226;
February 11, 2016). These are also
referred to as ‘‘essential features.’’ To
comply with this revision, we are
revising 50 CFR 226.206(c) by replacing
the term PCE with the term ‘‘essential
features.’’
Third, we are moving the map(s) to
the end of the section to accommodate
the additional text necessary to describe
the newly added critical habitat areas.
References Cited
A complete list of all references cited
in this final rule can be found on our
website at
www.westcoast.fisheries.noaa.gov/
protected_species/marine_mammals/
killer_whale/critical_habitat.html or the
Federal e-Rulemaking Portal at
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20140041, and is available upon request from
the NMFS West Coast Region office in
Seattle, Washington (see ADDRESSES).
Classification
Executive Order 12630, Takings
Under E.O. 12630, Federal agencies
must consider the effects of their actions
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on constitutionally protected private
property rights and avoid unnecessary
takings of property. A taking of property
includes actions that result in physical
invasion or occupancy of private
property, and regulations imposed on
private property that substantially affect
its value or use. In accordance with E.O.
12630, the final rule does not have
significant takings implications. A
takings implication assessment is not
required. The designation of critical
habitat affects only Federal agency
actions (i.e., those actions authorized,
funded, or carried out by Federal
agencies). Therefore, the critical habitat
designation does not affect landowner
actions that do not require Federal
funding or permits. This designation
would not increase or decrease the
current restrictions on private property
concerning take of Southern Resident
killer whales, nor do we expect the final
critical habitat designation to impose
substantial additional burdens on land
use or substantially affect property
values. Additionally, a final critical
habitat designation would not preclude
the development of Habitat
Conservation Plans and issuance of
incidental take permits for non-Federal
actions. Owners of areas included
within the critical habitat designation
would continue to have the opportunity
to use their property in ways consistent
with the survival of listed Southern
Resident killer whales.
Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
(OMB) has determined that this final
rule is significant for purposes of E.O.
12866 review. The FEA (IEc 2021) and
Final ESA Section 4(b)(2) Report (NMFS
2021b) have been prepared to support
the exclusion process under section
4(b)(2) of the ESA and our consideration
of alternatives to this rulemaking as
required under E.O. 12866. To review
these documents, see the ADDRESSES
section above.
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Executive Order 12988, Civil Justice
Reform
In accordance with E.O. 12988, we
have determined that this rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the E.O. We are
designating critical habitat in
accordance with the provisions of the
ESA. This rule uses standard property
descriptions and identifies the essential
features within the designated areas to
assist the public in understanding the
habitat needs of Southern Resident
killer whales.
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Executive Order 13132, Federalism
The E.O. on Federalism, Executive
Order 13132, requires agencies to take
into account any federalism impacts of
regulations under development. It
includes specific consultation directives
for situations in which a regulation may
preempt state law or impose substantial
direct compliance costs on state and
local governments (unless required by
statute). Pursuant to E.O. 13132, we
determined that this final rule does not
have significant federalism effects and
that a federalism assessment is not
required. In keeping with Department of
Commerce policies and consistent with
ESA regulations at 50 CFR
424.16(c)(1)(ii), we requested
information for this rule from the
appropriate state resources agencies in
Washington, Oregon, and California.
The designation may have some benefit
to state and local resource agencies in
that the rule more clearly defines the
physical and biological features
essential to the conservation of the
species and the coastal areas in which
those features are found. While this
designation would not alter where and
what non-federally sponsored activities
may occur, it may assist local
governments in long-range planning
(rather than waiting for case-by-case
ESA section 7 consultations to occur).
Where state and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) would be required.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests only on the Federal
agency.
Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
The long-standing and distinctive
relationship between the Federal and
tribal governments is defined by
treaties, statutes, executive orders,
judicial decisions, and agreements,
which differentiate tribal governments
from the other entities that deal with, or
are affected by, the Federal Government.
This relationship has given rise to a
special Federal trust responsibility
involving the legal responsibilities and
obligations of the United States toward
Indian Tribes and with respect to Indian
lands, tribal trust resources, and the
exercise of tribal rights. Pursuant to
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these authorities, lands have been
retained by Indian Tribes or have been
set aside for tribal use. These lands are
managed by Indian Tribes in accordance
with tribal goals and objectives within
the framework of applicable treaties and
laws. E.O. 13175, Consultation and
Coordination with Indian Tribal
Governments, outlines the
responsibilities of the Federal
Government in matters affecting tribal
interests.
There is a broad array of activities on
Indian lands that may trigger ESA
section 7 consultations. In developing
this rule to revise Southern Resident
killer whale critical habitat, we
reviewed maps and did not identify any
areas under consideration for critical
habitat along the coast that overlap with
Indian lands, because the shoreward
extent of the areas under consideration
for designation is 6.1 m (20 ft) water
depth. Based on this, we preliminarily
found that there were no Indian lands
subject to consideration for possible
exclusion. However, as discussed above,
our preliminary assessment indicated
that some federally-recognized tribes (83
FR 4235; January 30, 2018) have lands
that may be in close proximity to areas
under consideration for designation as
critical habitat for Southern Resident
killer whales, have usual and
accustomed fishing areas that overlap
with critical habitat areas, or may
otherwise be affected. These include:
Confederated Tribes of the Chehalis
Reservation, Hoh Indian Tribe, Makah
Indian Tribe, Quileute Tribe, Quinault
Indian Nation, and Shoalwater Bay
Indian Tribe in Washington;
Confederated Tribes of Coos, Lower
Umpqua, and Siuslaw Indians,
Confederated Tribes of the Siletz
Indians, and Coquille Indian Tribe in
Oregon; and Cher-Ae Heights Indian
Community of the Trinidad Rancheria,
Hoopa Valley Tribe, Karuk Tribe, Big
Valley Band of Pomo Indians, Tolowa
Dee-Ni’ Nation, Wiyot Tribe, and Yurok
Tribe in California. We also identified
the non-federally recognized Wintu
Tribe of Northern California as a tribal
entity that may be affected by critical
habitat designation.
As discussed previously we contacted
each of these tribes to solicit comments
regarding Indian lands that may overlap
and may warrant exclusion from critical
habitat for Southern Resident killer
whales. We also sought information
from these tribes concerning other tribal
activities that may be affected in areas
other than tribal lands (e.g., tribal
fisheries in usual and accustomed
coastal marine areas). We will continue
to consult with affected tribes regarding
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the implementation of this critical
habitat designation.
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Executive Order 13211, Energy Supply,
Distribution, and Use
E.O. 13211 requires agencies to
prepare a Statement of Energy Effects
when undertaking a ‘‘significant energy
action.’’ According to Executive Order
13211, ‘‘significant energy action’’
means any action by an agency that is
expected to lead to the promulgation of
a final rule or regulation that is a
significant regulatory action under
Executive Order 12866 and is likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
We have considered the potential
impacts of this action on the supply,
distribution, or use of energy and find
the revision to the designation of critical
habitat will not have impacts that
exceed the thresholds identified in
OMB’s memorandum M–01–27,
Guidance for Implementing E.O. 13211
(See IEc 2021).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996, whenever an agency publishes a
notice of rulemaking for any proposed
or final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the effects of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). We prepared a final
regulatory flexibility analysis (FRFA),
which is part of the FEA (Chapter 5, IEc
2021). This document is available upon
request and online (see ADDRESSES).
Results of the FRFA are summarized
below.
NMFS listed the Southern Resident
killer whale Distinct Population
Segment as endangered under the ESA
on November 18, 2005 (70 FR 69903),
and on November 29, 2006, issued a
final rule designating critical habitat for
the whales in inland waters of
Washington (71 FR 69054). NMFS is
now expanding the critical habitat
designation by adding waters along the
Pacific Coast between Cape Flattery,
Washington, and Point Sur, California.
The objective of the rule is to utilize the
best scientific and commercial
information available to expand critical
habitat for the Southern Resident killer
whale to best meet the conservation
needs of the species in order to meet
recovery goals. Section 4(a)(3)(A)(ii) of
the ESA allows NMFS to revise
designations to critical habitat as
appropriate and is the legal basis for this
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rule. This final rule will not impose any
recordkeeping or reporting requirements
on small entities and will not duplicate,
overlap, or conflict with any other laws
or regulations.
The expansion of critical habitat for
the Southern Resident killer whales is
expected to have a limited economic
impact, on the order of $80,000
annualized over 10 years. The nature of
these costs are administrative efforts to
consider potential for adverse
modification part of future ESA section
7 consultations. Primarily, consultations
are between NMFS and Federal action
agencies to evaluate the potential for
projects and activities to result in
adverse modification of critical habitat.
Therefore, most incremental impacts are
borne by NMFS and other Federal
agencies and not by private entities or
small governmental jurisdictions.
However, some consultations may
include third parties (e.g., project
proponents or landowners) that may be
small entities. These third parties may
bear some portion of the administrative
consultation costs.
Of the activities for which future
consultations are forecast and expected
to result in incremental economic
impacts due to the expanded critical
habitat designation, only a subset
involve third parties that may be small
entities. Specifically, consultations on
renewable energy development,
dredging and in-water construction, and
seismic surveying may involve small
entities, including small businesses or
governments. The analysis anticipates
approximately six consultations on inwater and coastal construction activities
per year, 0.5 consultations on renewable
energy development, and 0.1
consultations on seismic surveys. While
the activity forecast includes less than
one consultation annually on renewable
energy development and seismic
surveying, the FRFA evaluates the
impacts associated with one
consultation on each of these activities
to reflect a high-end estimate for a single
year. Administrative costs of
consultations on fisheries, military
activities, and hatchery operations are
unlikely to involve third parties beyond
NMFS and the Federal action agency.
Because consultations on fisheries
activities are conducted on fishery
management plans, rather than on
individual fishing activities or permits,
individual fishermen and fishing
entities that would be considered small
businesses are not parities to those
consultations. As such, they would only
incur costs if additional conservation
efforts resulted from this critical habitat
designation. NMFS was not able to
envision a scenario in which the
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expansion of critical habitat for
Southern Resident killer whales would
result in changes to management of
salmon fisheries and potential
associated costs to small fishing
businesses. This conclusion was due to
a number of factors including strong
existing baseline protections stemming
from the ESA listing and consequent
need for recovery of many salmon
populations themselves, existing
consideration of fishery impacts and
prey availability relative to the potential
for jeopardy to Southern Resident killer
whales even absent critical habitat, as
well as NMFS’s experience over the past
15 years implementing the inland
waters critical habitat for Southern
Resident killer whales, which has not
resulted in fishery management changes
beyond those already considered as a
result of ESA consultation on prey
effects relative to jeopardy. Costs of this
rule associated with fishing activities
would be limited to administrative costs
for future consultations, which are
borne by NMFS as both the consulting
and action agency, and do not include
third parties.
For the consultations that may
involve third parties, it is not known
whether the third parties bearing
administrative costs are likely to be
large or small entities. The analysis
conservatively assumes all third parties
involved in these consultations are
small entities. The number of small
entities bearing these incremental
administrative costs in a given year is
uncertain. To provide information on
the range of potential entities affected
and the potential costs borne by these
entities, the analysis presents two
scenarios reflecting the extremes:
(1) Scenario 1 identifies the maximum
number of future consultations
involving small entities and assumes
that each consultation involves one
unique small entity. We estimate the
maximum number of future
consultations, and accordingly number
of potentially affected entities, to be
eight. This represents the total number
of annual consultations that occur
across all critical habitat units involved
with in-water construction, renewable
energy development, and seismic
surveying. Scenario 1 accordingly
provides a high-end estimate of the
number of potentially affected small
entities (assuming each consultation
involves a unique third party and all
third parties are small entities), and a
low-end estimate of the potential effect
in terms of the economic effects (i.e.,
percent of annual revenues) for each
entity (total third party costs of the
consultations are divided across the
high-end number of small entities). This
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scenario may overstate the number of
small entities likely to be affected by the
rule and may understate the potential
impact per entity. Under Scenario 1, we
estimate that eight small entities have
the potential to bear an impact of $1,000
to $1,800 per entity.
(2) Scenario 2 assumes all future costs
to an industry are borne by a single
small entity within that industry. This
scenario may understate the number of
small entities affected and overstate the
per-entity impacts. As such, this
scenario arrives at a low-end estimate of
potentially affected entities and a highend estimate of potential economic cost
effects. Under this scenario, one small
entity in the in-water construction
industry would bear costs of $6,000.
Because the analysis assumes a
maximum of one consultation on both
renewable energy development and
seismic surveying in a single year, the
cost estimates for these activities are
identical under both scenarios ($1,200
for one small entity in the renewable
energy development industry and
$1,800 for one small entity in the
seismic survey industry). However, for
in-water construction and dredging,
these scenarios reflect a range of
potentially affected entities and
associated revenue effects. The actual
number of small in-water construction
entities affected, and the per-entity
revenue effects are likely to be
somewhere in the middle. In other
words, some subset greater than one and
less than 6 of the in-water construction
small entities may participate in the
section 7 consultations and bear the
associated impacts.
Under both scenarios, potential costs
borne by small entities are expected to
be minor. Ultimately, up to eight small
entities per year may bear costs
associated with participation in
consultation regarding the proposed
expansion of critical habitat for
Southern Resident killer whale. The
total annualized administrative costs
that may be borne by these small
entities (businesses or governments) is
$9,000 (discounted at 7 percent).
The RFA, as amended by SBREFA,
requires us to consider alternatives to
the proposed regulation that will reduce
the impacts to small entities. We
considered an alternative of not
expanding critical habitat for Southern
Resident killer whales within their
coastal range because it would impose
none of the additional economic,
national security, or other relevant
impacts described in the FEA (IEc 2021)
or the Final ESA Section 4(b)(2) Report.
Under this alternative, Southern
Resident killer whales would continue
to receive protections provided under
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the ESA, the existing critical habitat, as
well as other Federal, state, and local
laws. We rejected this alternative
because we determined that the
expanded critical habitat is prudent and
determinable, and the ESA requires
critical habitat designation in that
circumstance. We also considered
alternatives in which we designated all
six of the identified ‘‘specific areas’’
(i.e., no area excluded), or designated
some subset of the ‘‘specific areas’’ (i.e.,
some ‘‘particular areas’’ within the
identified ‘‘specific areas’’ would be
excluded). As described in our Final
ESA Section 4(b)(2) Report, we
considered the economic impacts,
impacts to national security, and other
relevant impacts that would result from
designation, and weighed the benefits of
designation against the benefits of
exclusion. Ultimately, we selected an
alternative in which one particular area
was excluded from the designation, the
Navy’s Quinault Range Site off the coast
of Washington and a 10-km buffer
around a portion of it, because we
considered impacts to national security
outweighed the benefits of designating
critical habitat there.
Coastal Zone Management Act
Under section 307(c)(1)(A) of the
Coastal Zone Management Act (CZMA)
(16 U.S.C. 1456(c)(1)(A)) and its
implementing regulations, each Federal
activity within or outside the coastal
zone that has reasonably foreseeable
effects on any land or water use or
natural resource of the coastal zone
shall be carried out in a manner which
is consistent to the maximum extent
practicable with the enforceable policies
of approved State coastal management
programs. We have determined that this
revision of the critical habitat
designation for Southern Resident killer
whales is consistent to the maximum
extent practicable with the enforceable
policies of the approved Coastal Zone
Management Programs of Washington,
Oregon, and California. This
determination was submitted to the
responsible agencies in the
aforementioned states for review. The
Washington Department of Ecology and
California Coastal Commission
responded to confirm consistency with
their coastal management programs.
Paperwork Reduction Act
The purpose of the Paperwork
Reduction Act is to minimize the
paperwork burden for individuals, small
businesses, educational and nonprofit
institutions, and other persons resulting
from the collection of information by or
for the Federal Government. This final
rule does not contain any new or
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revised collection of information. This
rule would not impose recordkeeping or
reporting requirements on State or local
governments, individuals, businesses, or
organizations.
Unfunded Mandates Reform Act
In accordance with the Unfunded
Mandates Reform Act, we make the
following findings:
(a) This final rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute or regulation that would impose
an enforceable duty upon State, local,
tribal governments, or the private sector
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’ The
designation of critical habitat does not
impose an enforceable duty on nonFederal government entities or private
parties. The only regulatory effect of a
critical habitat designation is that
Federal agencies must ensure that their
actions are not likely to destroy or
adversely modify critical habitat under
ESA section 7. Non-Federal entities that
receive funding, assistance, or permits
from Federal agencies or otherwise
require approval or authorization from a
Federal agency for an action may be
indirectly impacted by the designation
of critical habitat, but the legally
binding duty to avoid destruction or
adverse modification of critical habitat
rests squarely on the Federal agency.
Furthermore, to the extent that nonFederal entities are indirectly impacted
because they receive Federal assistance
or participate in a voluntary Federal aid
program, the Unfunded Mandates
Reform Act would not apply. Nor would
critical habitat shift the costs of the large
entitlement programs listed above to
state governments.
(b) Due to the prohibition against take
of Southern Resident killer whales both
within and outside of the designated
areas, we do not anticipate that this rule
will significantly or uniquely affect
small governments. As such, a Small
Government Agency Plan is not
required.
Information Quality Act and Peer
Review
Pursuant to the Information Quality
Act (section 515 of Pub. L. 106–554),
this information product has undergone
a pre-dissemination review by NMFS.
The signed Pre-dissemination Review
and Documentation Form is on file with
the NMFS West Coast Regional Office in
Seattle, Washington (see FOR FURTHER
INFORMATION CONTACT).
On December 16, 2004, OMB issued
its Final Information Quality Bulletin
for Peer Review (Bulletin). The Bulletin
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was published in the Federal Register
on January 14, 2005 (70 FR 2664), and
went into effect on June 16, 2005. The
primary purpose of the Bulletin is to
improve the quality and credibility of
scientific information disseminated by
the Federal Government by requiring
peer review of ‘‘influential scientific
information’’ and ‘‘highly influential
scientific information’’ prior to public
dissemination. Influential scientific
information is defined as information
the agency reasonably can determine
will have or does have a clear and
substantial impact on important public
policies or private sector decisions. The
Bulletin provides agencies broad
discretion in determining the
appropriate process and level of peer
review. Stricter standards were
established for the peer review of
‘‘highly influential scientific
assessments,’’ defined as information
whose dissemination could have a
potential impact of more than $500
million in any one year on either the
public or private sector or that the
dissemination is novel, controversial, or
precedent-setting, or has significant
interagency interest. The Draft
Biological Report (NMFS 2019a) and
DEA (IEc 2019) supporting the proposed
rule are considered influential scientific
information and subject to peer review.
These two reports were distributed to
five independent reviewers for review
before the publication date of the
proposed rule, and peer review
comments were incorporated prior to
their dissemination in support of the
proposed rulemaking. The peer reviewer
comments were compiled into peer
review reports that are available at the
following website: https://
www.cio.noaa.gov/services_programs/
prplans/ID402.html.
Final reports with updates based on
comments were reviewed by NOAA
NMFS Science Center experts.
On April 24, 2019, OMB issued
memorandum M–19–15 to reinforce,
clarify, and interpret agency
responsibilities under the Information
Quality Act. The memorandum directs
agencies to update their agency-specific
guidelines within 90 days to be
consistent with certain parameters.
NOAA has not yet issued revised
guidance.
National Environmental Policy Act
(NEPA)
NMFS has determined that an
environmental analysis as provided for
under NEPA is not required for critical
habitat designations made pursuant to
the ESA. See Douglas County v. Babbitt,
48 F.3d 1495 (9th Cir. 1995), cert.
denied, 116 S.Ct. 698 (1996).
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List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: July 22, 2021.
Carrie Robinson,
Acting Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 226 is amended
as follows:
PART 226—DESIGNATED CRITICAL
HABITAT
1. The authority citation of part 226
continues to read as follows:
■
Authority: 16 U.S.C. 1533.
■
2. Revise § 226.206 to read as follows:
§ 226.206 Critical habitat for the Southern
Resident killer whale (Orcinus orca).
Critical habitat is designated for the
Southern Resident killer whale as
described in this section. The maps,
clarified by the textual descriptions in
this section, are the definitive source for
determining the critical habitat
boundaries.
(a) Critical habitat boundaries.
Critical habitat is designated to include
all areas in paragraphs (a)(1) and (2) of
this section.
(1) Inland waters of Washington State.
Critical habitat includes three specific
marine areas of Puget Sound,
Washington, within the following
counties: Clallam, Jefferson, King,
Kitsap, Island, Mason, Pierce, San Juan,
Skagit, Snohomish, Thurston, and
Whatcom. Critical habitat includes all
waters relative to a contiguous shoreline
delimited by the line at a depth of 20
ft (6.1 m) relative to extreme high water
in each of the following areas:
(i) Summer Core Area. All U.S.
marine waters in Whatcom and San
Juan counties; and all marine waters in
Skagit County west and north of the
Deception Pass Bridge (Highway 20)
(48°24′25″ N/122°38′35″ W).
(ii) Puget Sound Area. All marine
waters in Island County east and south
of the Deception Pass Bridge (Highway
20) (48°24′25″ N/122°38′35″ W), and
east of a line connecting the Point
Wilson Lighthouse (48°8′39″ N/
122°45′12″ W) and a point on Whidbey
Island located at 48°12′30″ N/122°44′26″
W; all marine waters in Skagit County
east of the Deception Pass Bridge
(Highway 20) (48°24′25″ N/122°38′35″
W); all marine waters of Jefferson
County east of a line connecting the
Point Wilson Lighthouse (48°8′39″ N/
122°45′12″ W) and a point on Whidbey
Island located at latitude 48°12′30″ N/
122°44′26″ W, and north of the Hood
Canal Bridge (Highway 104) (47°51′36″
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N/122°37′23″ W); all marine waters in
eastern Kitsap County east of the Hood
Canal Bridge (Highway 104) (47°51′36″
N/122°37′23″ W); all marine waters
(excluding Hood Canal) in Mason
County; and all marine waters in King,
Pierce, Snohomish, and Thurston
counties.
(iii) Strait of Juan de Fuca Area. All
U.S. marine waters in Clallam County
east of a line connecting Cape Flattery,
Washington (48°23′10″ N/124°43′32″
W), Tatoosh Island, Washington
(48°23′30″ N/124°44′12″ W), and Bonilla
Point, British Columbia (48°35′30″ N/
124°43′00″ W); all marine waters in
Jefferson and Island counties west of the
Deception Pass Bridge (Highway 20)
(48°24′25″ N/122°38′35″ W), and west of
a line connecting the Point Wilson
Lighthouse (48°8′39″ N/122°45′12″ W)
and a point on Whidbey Island located
at 48°12′30″ N/122°44′26″ W.
(2) Coastal marine waters along the
U.S. West Coast. Critical habitat
includes six specific marine areas along
the coasts of Washington, Oregon, and
California. Critical habitat includes all
waters relative to a contiguous shoreline
delimited by the line at a depth of 20
ft (6.1 m) relative to mean high water in
each of the following areas:
(i) Coastal Washington/Northern
Oregon Inshore Area. U.S. marine
waters west of a line connecting Cape
Flattery, Washington (48°23′10″ N/
124°43′32″ W), Tatoosh Island,
Washington (48°23″ N/124°44′12″ W),
and Bonilla Point, British Columbia
(48°35′30″ N/124°43′00″ W), from the
U.S. international border with Canada
south to Cape Meares, Oregon
(45°29′12″ N), between the 6.1-m and
50-m isobath contours. This includes
waters off Clallam, Jefferson, Grays
Harbor, and Pacific counties in
Washington and Clatsop and Tillamook
counties in Oregon.
(ii) Coastal Washington/Northern
Oregon Offshore Area. U.S. marine
waters west of a line connecting Cape
Flattery, Washington (48°23′10″ N/
124°43′32″ W), Tatoosh Island,
Washington (48°23′30″ N/124°44′12″
W), and Bonilla Point, British Columbia
(48°35′30″ N/124°43′00″ W) south to
Cape Meares, Oregon (45°29′12″ N),
between the 50-m and 200-m isobath
contours. This includes waters off
Clallam, Jefferson, Grays Harbor, and
Pacific counties in Washington and
Clatsop and Tillamook counties in
Oregon.
(iii) Central/Southern Oregon Coast
Area. U.S. marine waters from Cape
Meares, Oregon (45°29′12″ N) south to
the border between Oregon and
California (42°00′00″ N), between the
6.1-m and 200-m isobath contours. This
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includes waters off Tillamook, Lincoln,
Lane, Douglas, Coos, and Curry counties
in Oregon.
(iv) Northern California Coast Area.
U.S. marine waters from the border
between Oregon and California
(42°00′00″ N) south to Cape Mendocino,
California (40°26′19″ N), between the
6.1-m and 200-m isobath contours. This
includes waters off Del Norte and
Humboldt counties in California.
(v) North Central California Coast
Area. U.S. marine waters from Cape
Mendocino, California (40°26′19″ N)
south to Pigeon Point, California
(37°11′00″ N), between the 6.1-m and
200-m isobath contours. This includes
waters off Humboldt, Mendocino,
Sonoma, Marin, San Francisco, and San
Mateo counties in California.
(vi) Monterey Bay Area. U.S. marine
waters from Pigeon Point, California
(37°11′00″ N) south to Point Sur,
California (36°18′00″ N), between the
6.1-m and 200-m isobath contours. This
includes waters off San Mateo, Santa
Cruz, and Monterey counties in
California.
(b) Essential features. The essential
features for the conservation of
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Southern Resident killer whales are the
following:
(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.
(c) Sites owned or controlled by the
Department of Defense. Critical habitat
does not include the following
particular areas owned or controlled by
the Department of Defense, or
designated for its use, in the State of
Washington, including shoreline,
nearshore areas around structures such
as docks and piers, and marine areas
where they overlap with the areas
described in paragraph (a) of this
section:
(1) Naval Undersea Warfare Center,
Keyport;
(2) Naval Ordnance Center, Port
Hadlock (Indian Island);
(3) Naval Fuel Depot, Manchester;
(4) Naval Air Station, Whidbey Island;
(5) Naval Station, Everett;
(6) Naval Hospital Bremerton;
PO 00000
Frm 00030
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(7) Fort Lewis (Army);
(8) Pier 23 (Army);
(9) Puget Sound Naval Ship Yard;
(10) Strait of Juan de Fuca naval airto-surface weapon range, restricted area;
(11) Strait of Juan de Fuca and
Whidbey Island naval restricted areas;
(12) Admiralty Inlet naval restricted
area;
(13) Port Gardner Naval Base
restricted area;
(14) Port Orchard Passage naval
restricted area;
(15) Sinclair Inlet naval restricted
area;
(16) Carr Inlet naval restricted area;
(17) Port Townsend/Indian Island/
Walan Point naval restricted area;
(18) Crescent Harbor Explosive
Ordnance Units Training Area; and
(19) Quinault Range (including the
surf zone at Pacific Beach) and a 10-km
buffer around most of the Quinault
Range, not including the portion of this
buffer that extends beyond 10 km into
the Olympic Coast National Marine
Sanctuary (OCNMS).
(d) Maps of Southern Resident killer
whale critical habitat.
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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
41697
Figure 1 to Paragraph (d) - Existing and Revised Critical Habitat for Southern
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41698
Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
Figure 2 to paragraph (d) - Existing and Revised Critical Habitat for Southern
Resident Killer Whales - Detail
Existing and Revised Critical Habitat for
Southern Resident Killer Whales - Detail
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[FR Doc. 2021–16094 Filed 7–30–21; 8:45 am]
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]]>Agencies
[Federal Register Volume 86, Number 145 (Monday, August 2, 2021)]
[Rules and Regulations]
[Pages 41668-41698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16094]
[[Page 41667]]
Vol. 86
Monday,
No. 145
August 2, 2021
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Wildlife and Plants; Revision of Critical
Habitat for the Southern Resident Killer Whale Distinct Population
Segment; Final Rule
Federal Register / Vol. 86 , No. 145 / Monday, August 2, 2021 / Rules
and Regulations
[[Page 41668]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 210719-0149]
RIN 0648-BH95
Endangered and Threatened Wildlife and Plants; Revision of
Critical Habitat for the Southern Resident Killer Whale Distinct
Population Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, issue a final rule to revise the critical habitat
designation for the Southern Resident killer whale (Orcinus orca)
distinct population segment (DPS) under the Endangered Species Act
(ESA) by designating six additional coastal critical habitat areas
along the U.S. West Coast. Specific newly designated areas along the
U.S. West Coast include 15,910 square miles (mi\2\) (41,207 square
kilometers (km\2\)) of marine waters between the 20-feet (ft) (6.1-
meter (m)) depth contour and the 656.2-ft (200-m) depth contour from
the U.S. international border with Canada south to Point Sur,
California. We have excluded one area, the Quinault Range Site
(including a 10-km buffer around a portion of the site), comprising
1,400.4 mi\2\ (3627 km\2\), from the critical habitat designation
because we have determined that the benefits of exclusion outweigh the
benefits of inclusion, and exclusion will not result in extinction of
the species.
DATES: This rule is effective September 1, 2021.
ADDRESSES: The final rule, maps, and other supporting documents
(Economic Report, ESA Section 4(b)(2) Report, and Biological Report)
can be found on the NMFS website at https://www.fisheries.noaa.gov/action/critical-habitat-southern-resident-killer-whale.
FOR FURTHER INFORMATION CONTACT: Lynne Barre, NMFS West Coast Region,
206-526-4745; or Lisa Manning, NMFS, Office of Protected Resources,
301-427-8466.
SUPPLEMENTARY INFORMATION:
Background
NMFS listed the Southern Resident killer whale DPS as endangered
under the ESA in 2005 (70 FR 69903; November 18, 2005). In 2006, NMFS
designated critical habitat for the Southern Resident killer whale DPS
in inland waters of Washington State (71 FR 69054; November 29, 2006).
The designated critical habitat consists of three areas: (1) The Summer
Core Area in Haro Strait and waters around the San Juan Islands, (2)
Puget Sound Area, and (3) the Strait of Juan de Fuca Area. Together,
these areas comprise approximately 2,560 mi\2\ (6,630 km\2\) of marine
habitat.
The 2006 final rule designating critical habitat identified three
habitat features essential to the conservation of the DPS: (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.
On January 21, 2014, we received a petition from the Center for
Biological Diversity (CBD) requesting revisions to the critical habitat
designation for the Southern Resident killer whale DPS. CBD requested
we revise critical habitat to include ``inhabited marine waters along
the West Coast of the United States that constitute essential foraging
and wintering areas,'' specifically the region between Cape Flattery,
Washington, and Point Reyes, California, extending from the coast to a
distance of 47.2 mi (76 km) offshore.
On April 25, 2014, we announced in our 90-day finding that the
petition presented substantial scientific information indicating that a
revision to the current critical habitat designation may be warranted
and requested public comments (79 FR 22933). Due to new information
available regarding habitat use by Southern Resident killer whales, we
decided a revision to critical habitat was warranted, and we announced
our intention to proceed toward a proposed rule in the 12-month finding
(80 FR 9682; February 24, 2015).
CBD filed a complaint in August 2018 with the U. S. District Court
for the Western District of Washington at Seattle seeking an order from
the Court establishing deadlines for NMFS to revise the Southern
Resident killer whale critical habitat designation. A court-approved
settlement agreement was filed on April 17, 2019 (Center for Biological
Diversity v. National Marine Fisheries Service, 2:18-cv-01201-RSM (W.D.
Wash.)). The settlement agreement stipulated that NMFS must submit a
proposed rule revising critical habitat to the Office of the Federal
Register by September 6, 2019.
Based on the recommendations provided in the Draft Biological
Report, the Initial Regulatory Flexibility Analysis (IRFA) and ESA
section 4(b)(2) analysis (which considers exclusions to critical
habitat based on economic, national security and other relevant
impacts), we published a proposed rule on September 19, 2019 (84 FR
49214), to designate marine waters between the 20-ft (6.1-m) depth
contour and the 656.2-ft (200-m) depth contour from the U.S.
international border with Canada south to Point Sur, California, as
Southern Resident killer whale critical habitat. In accordance with the
definition of critical habitat under the ESA, this area contained
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protections. The proposed rule included background information on
Southern Resident killer whale biology and habitat use. That background
information is not included here but can be accessed by referring to
the proposed rule (84 FR 49214; September 19, 2019) and supporting
documents (at https://www.fisheries.noaa.gov/west-coast/endangered-species-conservation/critical-habitat-southern-resident-killer-whales).
In the proposed rule, we described the physical or biological
features essential to the conservation of Southern Resident killer
whales 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. We requested public comments through December
18, 2019, and held three public hearings. For a complete description of
our proposed action, we refer the reader to the proposed rule (84 FR
49214; September 19, 2019). The proposed rule and supporting documents
included information on the natural history of Southern Resident killer
whales, which has been updated in the Final Biological Report (NMFS
2021a).
Statutory and Regulatory Background for Critical Habitat Designations
The ESA defines critical habitat under section 3(5)(A) as the (1)
specific areas within the geographical area occupied by the species at
the time it is listed, on which are found those physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection; and (2)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the
[[Page 41669]]
Secretary of Commerce (Secretary) that such areas are essential for the
conservation of the species (16 U.S.C. 1532(5)(A)). Conservation is
defined in section 3(3) of the ESA as to use, and the use of, all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary (16 U.S.C.
1532(3)). Section 3(5)(C) of the ESA provides that, except in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species. Our regulations provide that critical
habitat shall not be designated within foreign countries or in other
areas outside U.S. jurisdiction (50 CFR 424.12(g)).
Section 4(a)(3)(B) prohibits designating as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DOD) or designated for its use, that are subject to an
Integrated Natural Resources Management Plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is designated.
Section 4(b)(2) of the ESA requires us to designate critical
habitat for threatened and endangered species on the basis of the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
Pursuant to this section, the Secretary may exclude any area from
critical habitat upon determining that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat. However, the Secretary may not exclude areas if this will
result in the extinction of the species.
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they fund, authorize,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to jeopardize the continued existence of ESA-listed species.
Specifying the geographic location of critical habitat also facilitates
implementation of section 7(a)(1) of the ESA by identifying areas where
Federal agencies can focus their conservation programs and use their
authorities to further the purposes of the ESA. Critical habitat
requirements do not apply to citizens engaged in actions on private
land that do not involve a Federal agency. However, designating
critical habitat can help focus the efforts of other conservation
partners (e.g., state and local governments, individuals, and non-
governmental organizations).
Summary of Changes From the Proposed Rule
We evaluated the comments and information received from the public
during the public comment period and at public hearings. Based on our
consideration of these comments and information and our reconsideration
of issues discussed in the proposed rule, the final rule and supporting
documents include one substantive change to the exclusions for national
security impacts, as well as inclusion of clarifications and new
information and references in response to public comments. Below we
briefly summarize these changes and clarifications, which are discussed
in further detail in the relevant responses to comments and other
sections of this final rule.
After considering public comments received and the best scientific
information available, the final rule reduces the extent of the
excluded 10-km buffer around the Quinault Range Site (QRS) where the
QRS overlaps with the Olympic Coast National Marine Sanctuary (OCNMS).
In accordance with section 4(b)(2) of the ESA, our proposed rule
excluded the QRS based on national security impacts. It also excluded a
10-km buffer around the site, calculated by the Navy based on the full
extent to which noise-related impacts on fish species are estimated to
occur from the use of the largest explosives the Navy foresees testing
within the QRS. We received numerous public comments opposing the
exclusion and one comment pointing out that part of the QRS overlaps
with the OCNMS.
After considering these comments and requesting additional
information from the Navy regarding planned activities in the OCNMS, we
have reduced the extent of the 10-km buffer being excluded, where the
QRS overlaps with the OCNMS. As detailed in the Section 4(b)(2) Report
(NMFS 2021b), we found the benefits of designating critical habitat for
Southern Resident killer whales within this portion of the buffer are
not outweighed by national security impacts of including that portion.
This change represents a reduction in the size of the area being
excluded from critical habitat compared to the proposed rule. The
proposed exclusion area encompassed approximately 1,687.9 mi\2\
(4,371.5 km\2\) of potential critical habitat, and the final exclusion
area encompasses 1,400.4 mi\2\ (3627 km\2\) of potential critical
habitat.
In addition to the one substantive change in the final rule, we
also updated our supporting documents with additional information and
clarifications based on the public comments, including updates related
to sound, inclusion of newly available references, and clarifications
related to our economic analysis. A number of comments requested that
we include sound as a fourth essential feature or more explicitly
describe how communication space is encompassed within the prey and
passage essential features. After carefully considering the studies
cited by commenters seeking to include sound as a fourth essential
feature, we are still not able to identify specific in-water sound
levels or thresholds for communication, behavioral or displacement
impacts on Southern Resident killer whales (as requested by CBD) so we
consider effects of sound qualitatively (see further explanation in
section `Physical and Biological Features Essential to Conservation'
and in the Biological Report, NMFS 2021a, section V.B.4). Because
potential impacts of sound are already addressed through qualitative
section 7 analyses of the prey and passage features, as well as
analyses of effects of sound on individual whales themselves, we have
not included sound as a separate feature. However, in response to the
concerns expressed in the comments, we have added more detail to the
Final Biological Report (NMFS 2021a, sections V.B.2, V.B.3, and V.B.4)
to clarify that the effects of anthropogenic noise on communication and
social behavior are and will continue to be evaluated through the prey
and passage essential features, as well as analyses of effects to
individual whales. Activities producing sound that impact Southern
Resident prey availability (including access to prey and impacts to
communication for prey sharing) or safe and unrestricted passage
(including passage necessary for social behavior) are considered
activities that may require special management considerations under
section 7 of the ESA. Finally, we also updated the Final Biological
Report to include information on how this approach is compatible with
the approaches used to address sound for other listed species: Cook
Inlet beluga whale DPS, the Main Hawaiian Islands insular false killer
whale DPS, and listed humpback whale
[[Page 41670]]
DPSs. Also, see the response to comment 8 regarding sound.
Multiple commenters provided information and citations for recent
scientific studies not included in the proposed rule. In response, we
have added to the Final Biological Report (NMFS 2021a) descriptions of
and reference to multiple new studies that were published since the
publication of the proposed critical habitat rule.
The Final Economic Analysis (FEA) in the Final Economic Report (IEc
2021) includes updates and clarifications from the draft version in
response to public comments. Specifically, the analysis incorporates
new information made available after development of the Draft Economic
Analysis (DEA) on the Pacific Fishery Management Council (PFMC)'s ad-
hoc Southern Resident Killer Whale Working Group, and publication of
its Final Draft Risk Assessment for Salmon Fishery Management Plan
(FMP) Impacts to Southern Resident Killer Whales (PFMC 2020). In
response to public comment, the Sacramento District has been added to
the list of United States Army Corps of Engineers (USACE) districts
that manage activities that may be affected by the expansion (section
2.10, IEc 2021). The FEA (IEc 2021) also incorporates a Final
Regulatory Flexibility Analysis (FRFA) and updates the timeframe and
dollar year of the analysis to reflect the present schedule of the
final rule. Therefore, differences in anticipated costs between the DEA
and the FEA reflect an update to the timeframe of the analysis and the
dollar year, as opposed to changes in the costs of consultation. No
substantive changes were made between the IRFA and the Final Regulatory
Flexibility Analysis (FRFA) as changes incorporated in the final rule
do not affect the economic analysis and conclusions.
Summary of Comments and Responses
We solicited comments on the proposed designations and exclusions
as well as the documents supporting the proposed rulemaking. To
facilitate public participation, the proposed rule was made available
on our website and comments were accepted via standard mail and through
the Federal eRulemaking portal. We also solicited public comments at
three public hearings, which were held on November 4, 2019, in Santa
Cruz, CA; November 5, 2019, in Newport, OR; and November 6, 2019, in
Seattle, WA. The public comment period closed on December 18, 2019.
We received 218 unique comments, including 180 in support, 22
opposed, and 16 that provided information and/or requested changes to
the rule without stating support or opposition. We have considered all
public comments, and provide responses to all substantive issues raised
by commenters that are relevant to the proposed revision of Southern
Resident killer whale critical habitat. We have not responded to
comments or concerns outside the scope of this rulemaking. Comments
were received from a range of sources including: Global and local
environmental non-profit groups, fishing industry associations, local
and state government, state agencies, other Federal agencies (e.g., the
Marine Mammal Commission, NOAA's National Ocean Service National Marine
Sanctuaries Program, USACE), merchant shipping associations, trade
associations, scientists and scientific groups, university students,
elementary school students, educational groups, aquariums, legal
groups, and individual citizens. The majority of individual concerned
citizens were in support of the expanded critical habitat designation.
The Marine Mammal Commission generally agreed with NMFS's
determinations and supports the geographic boundaries we proposed.
Criteria for Designating Critical Habitat
Comment 1: One commenter felt that the revised critical habitat was
not prudent, stating that it would not result in any new conservation
measures or protections and, therefore, would not provide benefits to
the species. The commenter referred to 16 U.S.C. 1533(a)(3) to argue
that NMFS must demonstrate that designation of critical habitat
designation is prudent, and cited 50 CFR 424.12(a)(1)(ii) (subsequently
revised in 2019) to argue that designation is not prudent when it
``would not be beneficial to the species.''
Response: The ESA requires that NMFS designate critical habitat to
the maximum extent prudent and determinable (16 U.S.C. 1533(a)(3)).
Contrary to the interpretation of the commenter, it does not require
that NMFS demonstrate prudence as a condition for designating critical
habitat.
The proposed and final rules to revise critical habitat for
Southern Resident killer whales follow previous ESA implementing
regulations, as the most recent revisions to the implementing
regulations, which became effective on September 26, 2019, only apply
to classification and critical habitat rules for which a proposed rule
was published after September 26, 2019 (see 84 FR 45020; August 27,
2019). The proposed rule for the revision to Southern Resident killer
whale critical habitat (84 FR 49214) was published on September 19,
2019. With respect to critical habitat designations, the previous ESA
implementing regulations at 50 CFR 424.12(a)(1)(ii) stated that a
designation of critical habitat is not prudent when such a designation
is not beneficial to the species. In determining if designation would
not be beneficial, NMFS may consider, among other factors, whether the
present or threatened destruction, modification, or curtailment of the
habitat or range of a species is not a threat to the species, or if any
areas meet the definition of critical habitat.
In general, ``not prudent'' determinations are uncommon, because
most species are listed under ESA, at least in part, due to impacts to
their habitat or curtailment of their range (see 81 FR 7413; February
11, 2016 response to Comment 61), and because there is an inherent
benefit of critical habitat designation. Most ``not prudent'' findings
are a result of a determination that designating habitat would increase
harm or threats to the species, such as species highly prized for
collection where identifying locations would render the species
vulnerable to collection. Southern Residents killer whales were listed
as endangered, in part, due to modification to their habitat from
vessel traffic, contaminants, and changes to prey availability (see 70
FR 69903; November 18, 2005). If areas do not meet the definition of
critical habitat, it is also permissible to not designate critical
habitat; however, specific areas within the geographical area occupied
by Southern Resident killer whales that we are designating, do meet the
definition of critical habitat (i.e., they contain the essential
features and may require special management considerations or
protection).
The commenter's statement that the proposed critical habitat would
not result in any new conservation measures or protections refers to
our findings in the DEA (IEc 2019) that there are no particular
projects or activities for which NMFS considers it likely that section
7 consultation on coastal critical habitat for the killer whales would
result in different conservation efforts than section 7 consultation
without the revised critical habitat. However, this finding does not
mean the critical habitat designation provides no benefits to the
species. We find there are benefits and disagree with the commenter.
First, although we do not consider additional conservation efforts from
section 7 consultations to be likely, we cannot rule out that some
modifications may result from section 7 consultations, and
[[Page 41671]]
such potential modifications would provide conservation value to the
species. Secondly, although the direct benefit that the statute
provides is through section 7 consultation, designating critical
habitat may carry additional benefits to the species beyond the
protections from section 7(a)(2) consultation. Specifically, these
additional benefits, outlined in the Final ESA Section 4(b)(2) Report
(NMFS 2021b), include facilitating implementation of section 7(a)(1) of
the ESA by identifying areas where Federal agencies can focus their
conservation programs and use their authorities to further the purposes
of the ESA. Furthermore, other additional benefits include the
generation of more detailed information about the status of Southern
Resident killer whales, increasing education and awareness of parties
involved in section 7 consultations and the public, which can lead to
activities that benefit the killer whales or their habitat.
We continue to find that the expanded critical habitat is prudent.
Geographical Areas Occupied by the Species
Comment 2: We received several comments regarding the proposal to
designate critical habitat in waters deeper than 20 ft (6.1 m) based on
extreme high water. Some commenters felt that we should include waters
shallower than 20 ft (6.1 m) because nearshore areas support killer
whale prey, making them essential to the conservation of Southern
Resident killer whales. The importance of these habitats for salmon and
forage fish was the predominant argument by commenters for including
shallow waters as critical habitat for Southern Resident killer whales.
Commenters generally acknowledged that many nearshore areas are
outside the geographical area occupied by the species, but viewed them
as essential for the conservation of the species because they provide
critical habitat to the Southern Resident food chain, including
juvenile salmon and their forage fish prey. Two commenters argued the
unoccupied nearshore areas should be designated as critical habitat
because they contain the essential feature of prey species (of
sufficient quantity, quality and availability to support individual
growth, reproduction and development, as well as overall population
growth). One believed that limiting critical habitat to occupied areas
is not adequate to ensure the conservation of the species, while
another felt that designating these areas as critical habitat would
help support salmon and killer whale resilience to climate change
impacts. While most comments on this topic requested the inclusion of
all nearshore areas in the critical habitat designation, a few
requested the inclusion of just those nearshore, as well as estuarine,
and freshwater areas associated with Chinook salmon rivers for stocks
identified by NMFS and the Washington Department of Fish and Wildlife
(WDFW) as priority stocks for Southern Resident killer whales.
One commenter argued that killer whales do occupy the waters
shallower than 20 ft in depth, citing observational data from shore-
based sightings of Southern Resident killer whales in the San Juan
Islands foraging and socializing in shallow waters when transiting the
area. The commenter argued that these waters are accessible to the
killer whales at high tide, and that the shallow waters may constitute
``active space'' around individual whales in which they can interact
with each other and their prey. They argued that nearshore waters
should be designated as critical habitat because activities taking
place in nearshore waters could adversely modify adjacent deeper waters
within the proposed critical habitat. Lastly, for the purposes of
regulatory simplicity, one commenter sought to align the critical
habitat boundary with the high water line regulatory boundary used by
the USACE.
Response: The final critical habitat designation is consistent with
the proposed rule and does not include waters shallower than 20 ft (6.1
m) based on mean high water. Similar to the critical habitat for inland
waters, there are little to no data to support that the whales use the
shallow areas regularly, or could physically access some areas, even
during high tide conditions.
The limited information providing new observations of Southern
Resident killer whale use of shallow waters in the San Juan Islands we
received is not sufficient to consider all shallow areas as occupied or
essential to the conservation of Southern Resident killer whales. The
observations provided represent rare occurrences and were located in
inland waters rather than outer coastal waters. Also, based on data
from four satellite-tagged Southern Resident killer whales, only less
than 1 percent of the whales' outer coastal locations were in depths
less than 6 m (Northwest Fisheries Science Center (NWFSC) unpubl. data,
see the Biological Report, NMFS 2021a). Satellite-based locations are
not exact, and we don't know the tidal conditions for these
observations. We are not revising the inland waters critical habitat
designation at this time, and neither the bathymetry of the San Juan
Islands nearshore areas nor the unique observations of Southern
Resident killer whales in these areas would be representative of outer
coastal areas.
Regulatory alignment with USACE or other management boundaries is
not a basis for designating critical habitat in unoccupied areas.
Additionally, extreme high water data for delineating boundaries within
geographic information system (GIS) software along the coast was not
readily available for many locations. Therefore, similar to the
proposed rule, we continue to use the 20-ft (6.1-m) depth relative to
mean high water as the eastern boundary of coastal critical habitat.
Not designating waters shallower than 20 ft (6.1 m) (based on mean
high water) as critical habitat does not preclude consultation on
activities that occur in these shallow nearshore or inland freshwater
areas. ESA section 7 requirements that Federal agencies ensure their
actions are not likely to destroy or adversely modify critical habitat
applies equally to actions occurring outside of designated critical
habitat as to actions occurring within designated critical habitat.
Furthermore, specific inland freshwater areas are designated as
critical habitat for ESA-listed salmon runs (70 FR 52487; September 2,
2005 and 70 FR 52629; September 2, 2005), including certain priority
Chinook runs (NMFS and WDFW 2018), and are, therefore, subject to
section 7 consultations.
Specific Areas
Comment 3: Many commenters expressed support for the proposed
geographic extent of the revised critical habitat in U.S. ocean waters
from Cape Flattery, Washington, south to Point Sur, California. Two
commenters felt that the coastwide designation of critical habitat was
too broad, and sought to limit the spatial extent of the designation to
areas of regular or consistent use. They disputed the southern and
western boundaries and proposed alternative limitations to the
boundaries of the specific areas, including by time and by the
locations of primary essential features. Other commenters requested
inclusion of additional areas because they felt the current proposed
areas were not sufficient to conserve the whales.
One commenter referred to 16 U.S.C. 1532(5)(C), noting ESA
directives that critical habitat not include the entire geographical
area which can be occupied by the listed species, except in special
circumstances. They referred to
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the 1978 amendments to the ESA, stating that congressional intent was
to curtail the practice of designating critical habitat throughout the
entire range of a species. They contended that the proposed critical
habitat revision for Southern Resident killer whales is overly
expansive because it includes most of the geographic area occupied by
the species.
Two commenters felt that critical habitat for Southern Resident
killer whales should only include those areas within the species' range
that are occupied on a regularly occurring or consistent basis. They
contested the western and southern boundaries on the basis that areas
more than 150 m deep and south of Cape Falcon are not used frequently
enough by the Southern Resident killer whales to justify the
designation.
Commenters expressed concerns that critical habitat designation
would result in fisheries closures year-round to protect areas occupied
by the Southern Resident killer whales only at certain times. They
requested that the designation be temporally limited to specific
periods when Southern Resident killer whales are present in the area,
and that adverse modification only be considered for activities that
affect the whales during the time that they occupy the areas.
One commenter sought to limit the boundaries of the specific areas
based on the spatial extent of each area's primary essential feature.
The commenter maintained that because we identified a primary essential
feature in each specific area, the designation of critical habitat
should be limited to only those spaces within each specific area where
the primary essential feature is found.
Response: This critical habitat designation is consistent with our
obligations under the ESA. We are not designating the entire
geographical area that can be occupied by this species, nor are we
designating all areas in which Southern Resident killer whales occur.
In regards to designation of unoccupied habitat areas, we considered
the best available information, and we are not aware of any unoccupied
areas that meet conservation needs of Southern Residents or are
essential for conservation (see also response to Comment 2 regarding
depth and response to Comment 5 regarding Hood Canal for additional
information on areas that commenters requested including). Therefore,
we have not included any unoccupied areas in the critical habitat
designation. Some Alaskan waters are considered to be within the
geographic area occupied by Southern Resident killer whales (see
``Distribution'' section in the Final Biological Report, NMFS 2021a),
but we are not designating any areas in Alaska because there is only
one sighting in this region and there is insufficient information about
the whales' distribution, behavior, and habitat use in these areas.
Also, there are limited sightings of Southern Resident killer whales at
shallow depths, outside of the eastern, nearshore critical habitat
boundaries or beyond the 200-m shelf isobath, outside of the western,
offshore critical habitat boundaries (see Specific Areas within the
Geographical Area Occupied by the Species and in NMFS 2021a), so the
species is able to occupy some areas closer to or farther from shore
than we are designating. Finally, Southern Resident killer whales can
and do occupy Canadian waters. However, those areas are not included in
the designation because they are outside of U.S. jurisdiction.
Therefore, this revised critical habitat does not include all areas
that can be occupied by Southern Resident killer whales.
Joint NMFS-U.S. Fish and Wildlife Service (USFWS) implementing
regulations clarify that the geographical area occupied by the species
may include those areas used throughout all or part of the species'
life cycle, even if not used on a regular basis (e.g. migratory
corridors, seasonal habitats, and habitats used periodically, but not
solely by vagrant individuals; 50 CFR 424.02). They also provide that
we determine specific areas that contain the physical or biological
features essential to the conservation of the species within the
geographical area occupied by the species (50 CFR 424.12(b)(1)(iii)).
In accordance with these regulations, the areas we are designating as
critical habitat, including the waters beyond 150 m in depth and at the
southern end of the range in California, are both occupied and contain
physical or biological features that are essential to the conservation
of the species.
In our satellite tracking data, 7 percent of occurrences were
beyond 150 m in depth (NMFS unpublished data, see the Biological
Report, NMFS 2021a). These data indicate short duration but regular use
of the area by the whales. We acknowledge that satellite-tagged whales
swam within a narrower north-south corridor off the coast of California
compared to the broader corridor when they were off the coasts of
Washington or Oregon (Final Biological Report, NMFS 2021a, section
VI.E.). However, using the 200 m depth contour consistently along the
West Coast reflects the majority of the whale habitat use data and
likely reflects the bathymetric conditions important to conservation
including supporting life functions, such as foraging. In addition,
establishing different contour lines as boundaries for different
specific areas would make implementation unnecessarily complex. As in
the proposed rule, we delineate the western boundary of critical
habitat in coastal waters at the 200 m depth contour.
With regards to the southern extent of critical habitat in
California, we provided scientific data on Southern Resident sightings
in this region in the Draft Biological Report (NMFS 2019a, section
IV.A.). The sightings in Area 6 (southernmost coastal critical habitat
area) around Monterey Bay have been periodic across multiple years
(nearly annual from 2007-2011), indicating consistent use of the area
from year to year (Hanson et al. 2017, Draft and Final Biological
Reports, section VI.F.). Furthermore, given the effort it takes for the
Southern Resident killer whales to get to this extreme end of their
range, recurring use of the area suggests it has special value to the
whales and that accessing the area is important to meet their needs.
Therefore, the final rule is consistent with the proposed rule and
delineates the southern boundary of critical habitat in coastal waters
at Point Sur (36[deg]18'00'' N).
Designation of critical habitat does not establish a refuge or
sanctuary for the species or automatically close areas to specific
activities, but rather it guides Federal agencies to consult with NMFS
if their actions may affect critical habitat. In the case of commercial
fisheries, as we explain in our responses to Comments 15-17 regarding
Economic Impacts and in the FEA (IEc 2021), we consider it unlikely
that the designation of critical habitat would result in different
fishery management measures than would already be implemented for the
protection of Southern Resident killer whales, endangered salmon, and
other listed species.
Critical habitat is designated by area, based on where features are
present in occupied areas (50 CFR 424.12(b)), rather than time, so we
cannot assign a season or other temporal boundary to the designation.
However, we can consider the timing of the whales presence in an action
area in our section 7 consultations. In these consultations, our
analysis of a Federal action's effects on critical habitat will
consider the timing of a Federal action and its overlap with time
periods in which Southern Resident killer whales are likely to be in
the area in order to determine how conservation value of the habitat
would be impacted by the Federal action.
[[Page 41673]]
In accordance with ESA section 3(5)(A), we delineated specific
areas within the geographical area occupied by the species where the
essential physical or biological features (PBFs) are found. Although we
identify a primary essential feature in each specific area, all three
PBFs are essential and present in all specific areas. Potential effects
to all three habitat features are subject to evaluation through section
7 consultations. As such, we are not reconsidering the boundaries of
specific areas based only on the primary PBFs.
Comment 4: One commenter noted that the proposed critical habitat
includes areas of Juan de Fuca Canyon that are deeper than the 200 m
depth contour, and felt that these areas should be excluded from the
designation because they are outside of the depth band used to define
critical habitat.
Response: As detailed in the Draft and Final Biological Reports
(NMFS 2019a, 2021a), the 656.2-ft (200-m) isobath was chosen as the
western (offshore) boundary of the proposed critical habitat. The
narrow Juan de Fuca canyon runs roughly southeast to northwest,
bisecting the newly designated critical habitat. Here, the western
boundary of the critical habitat aligns with the 200-m isobath to the
north and south of the canyon, crossing the deeper mouth of the canyon.
The canyon's complex bathymetry, with many islands and inlets where the
seafloor is shallower than 200 m, makes strict adherence to a 200-m
cutoff impractical. More importantly, as noted in the Draft and Final
Biological Reports, the Strait of Juan de Fuca (including the deeper
waters of the canyon) is a high use area for the Southern Resident
killer whales. Portions of the canyon below 200 m in depth are included
in the existing critical habitat designation for inland waters, making
the new critical habitat consistent with the previous designation.
Therefore, the entire area is included in the designated critical
habitat.
Comment 5: One commenter requested that we include Hood Canal in
the critical habitat designation. The commenter acknowledged that
Southern Resident killer whales have not been documented in Hood Canal
since 1995, but argued that the canal could be considered either
previously occupied habitat essential to recovery of the species or
occupied habitat on the basis that whales alive at the time of listing
had been documented in the canal. The commenter also contended that the
currently occupied habitat is inadequate for conservation, making it
necessary to protect and restore areas that were previously occupied
but are now unoccupied areas (even those unoccupied at the time of
listing). Also, the commenter felt that efforts to improve salmon
abundance in the canal would improve the quality of the habitat and
result in conservation benefits when or if Southern Resident killer
whales re-enter the canal.
Response: Similar comments were submitted in response to the 2006
proposed rule to designate critical habitat for inland waters (71 FR
34571; June 15, 2006). As described in the 2006 final rule's response
to comments (71 FR 69054; November 29, 2006), at that time we
considered the best available data and concluded that we lacked
sufficient information to either consider Hood Canal as occupied at the
time of listing, or to determine that additional unoccupied habitat in
Hood Canal was essential for the conservation of the species. With
respect to the proposed revision to the critical habitat, the commenter
did not provide new information beyond what was previously available,
and we have found no additional evidence to consider Hood Canal as
either occupied at the time of listing or essential for the
conservation of the species.
Section 3(5)(A) of the ESA defines critical habitat as areas either
occupied or not occupied by the species at the time that it is listed.
For this revision to critical habitat we considered the best available
information on killer whale distribution and, similar to our conclusion
in 2006, we do not have sufficient data to consider Hood Canal as
occupied by the species at the time of listing, nor are there available
data supporting that this area is currently occupied by the species. In
regards to designation of unoccupied habitat areas, we considered the
best available information, and we are not aware of any unoccupied
areas, including Hood Canal, that meet conservation needs of Southern
Residents or are essential for their conservation. Therefore, we are
not designating Hood Canal as either occupied or unoccupied critical
habitat. If the whales do return to Hood Canal in response to
increasing populations of prey species, we will continue to work with
the local community to gather information and reevaluate the importance
of Hood Canal as Southern Resident killer whale habitat.
Comment 6: Two commenters opposed the designation of Southern
Resident killer whale critical habitat in Southeast Alaska. Another
commenter urged NMFS to continue gathering information about the
Southern Resident killer whale's use of Alaskan waters to inform
potential expansion of critical habitat in the future.
Response: We did not propose and are not designating areas in
Southeast Alaskan waters because of the limited information about the
whales' distribution, behavior, and habitat use in these areas. NMFS
continues to evaluate any reported sightings of killer whales in Alaska
for matches to the Southern Resident killer whale DPS.
Unoccupied Areas
Comment 7: One commenter requested that we consider further
expanding the area designated as critical habitat to account for
potential impacts from climate change. The commenter felt that we had
not analyzed the best available science on potential climate change
impacts before concluding that insufficient evidence exists to
designate unoccupied areas as critical habitat.
Response: Contrary to the commenter's claims, we thoroughly
considered all available evidence regarding the potential impacts of
climate change on Southern Resident killer whales and presented these
findings in the Draft Biological Report (NMFS 2019a). Our guidance
provides that ``when designating critical habitat, NMFS will consider
proactive designation of unoccupied habitat when there is adequate data
to support a reasonable inference that the habitat is essential for the
conservation of the species because of the function(s) it is likely to
serve as climate changes'' (NMFS 2016). At this time, there exists very
little information regarding the potential impacts of climate change on
the distribution and habitat use of Southern Resident killer whales
over the longer-term, including whether or how the geographic areas
occupied by the species might change. The commenter did not cite any
additional research or information that would improve our understanding
of unoccupied areas that would likely become essential for the
conservation of the Southern Resident killer whales as climate changes.
Thus, there remains insufficient evidence to identify unoccupied areas
based on potential impacts from climate change. As noted in the
Biological Report, it will be important to continue monitoring Southern
Resident killer whales and their prey to evaluate responses to climate
change and ensure appropriate habitat protections.
We also note that we have the authority to revise critical habitat
designations as appropriate and in light of new information, which
provides a mechanism for addressing and incorporating changing
understandings
[[Page 41674]]
of the species' use of new areas over time (16 U.S.C.
1533(a)(3)(A)(ii)).
Essential Features
Comment 8: A number of commenters, including those from the Marine
Mammal Commission and the state of Washington, requested that we
include sound as a fourth essential feature. These commenters pointed
out that killer whales rely on sound to navigate, forage, mate, avoid
predators, and communicate with one another, and emphasized the impacts
of anthropogenic noise on the whales. Several commenters argued that
there now exists sufficient information to support including sound as
an essential feature, and suggested we consider new science that has
emerged since the 2006 designation, and were concerned that considering
sound via the prey and passage essential features does not sufficiently
address communication space for social behavior, which they pointed out
is fundamental to mother-offspring bonding, pod cohesion, and
ultimately the health and recovery potential of the DPS. One commenter
maintained that by excluding sound as an essential feature, we fail to
determine whether sound may require special management considerations
or protections. Others were concerned that military activities,
specifically would not be adequately addressed. Several commenters
emphasized that if sound is not included as an essential feature, then
the rule should describe more explicitly how communication space is
encompassed within the prey and passage essential features.
Some commenters felt that we did not adequately justify the
apparent inconsistency between the approach for Southern Resident
killer whales and the approach we took in the critical habitat
designations for two other ESA-listed odontocetes in U.S. waters: The
Cook Inlet beluga whale DPS and the Main Hawaiian Islands insular false
killer whale DPS, which include sound as a feature or a characteristic
of a feature. Several of these commenters also mentioned Canada's
inclusion of sound as an element of critical habitat for Southern
Resident killer whales in Canadian waters. They felt the approaches
were contradictory, and asked for clarification to reconcile the
differences.
One commenter stated their support for our determination in the
proposed rule not to include sound as a fourth essential feature,
noting the lack of data to support quantitative thresholds. The
commenter felt that the effects of sound on the whales are more
appropriately considered through the existing procedures for section 7
consultations and Marine Mammal Protection Act (MMPA) incidental take
authorizations.
Response: As stated in the proposed rule, we considered the new
information on killer whale responses to anthropogenic noise and the
acoustic quality of habitats for whale populations that has become
available since publication of the 2006 critical habitat designation
for Southern Resident killer whales. Much of this new research was
presented in the Draft Biological Report supporting the critical
habitat proposal and we have incorporated additional publications
submitted through the comment period or that have become available in
the last year in the Final Biological Report (NMFS 2021a) supporting
the final rule. Contrary to the concerns of some commenters, we did not
ignore the new research, which enhances our ability to consider the
effects of sound on the whales' habitat through the prey and passage
essential features, as well as impacts of sound in our analyses of
effects to individual whales through section 7 consultations. After
carefully considering the studies cited by commenters seeking to
include sound as a fourth essential feature, we are still not able to
identify specific quantitative in-water sound levels or thresholds for
communication, behavioral or displacement impacts on Southern Resident
killer whales (as requested by CBD) and we consider effects of sound
qualitatively (see further explanation in this comment response, in the
section `Physical and Biological Features Essential to Conservation',
and in the Biological Report, NMFS 2021a, section V.B.4). Because
potential impacts of sound are already addressed through qualitative
section 7 analyses of the prey and passage features, as well as
analyses of effects of sound on individual whales themselves, we have
not included sound as a separate feature. We will, however, consider
results of ongoing and future studies and will review and reconsider
this conclusion as our scientific understanding of the acoustic ecology
of Southern Resident killer whales advances.
We agree with commenters that communication space for social
behavior is important for killer whales, and in the existing inland
waters critical habitat, and as expected for the coastal areas
designated in this final rule, we will continue to consider the effects
of sound on these aspects of the Southern Resident killer whales' life
history through the passage and prey essential features as well as in
section 7 analyses considering the impacts of noise on the whales
themselves. In response to the concerns expressed in the comments,
however, we have added more detail to the Final Biological Report (NMFS
2021a, sections V.B.2., V.B.3, and V.B.4) to clarify that the effects
of anthropogenic noise on communication and social behavior are and
will continue to be evaluated through the prey and passage essential
features, as well as analyses of effects to individual whales.
Specifically, indirect impacts of anthropogenic noise on communication
and social behavior are addressed in section 7 consultations when we
consider and address impacts of anthropogenic noise on the whales
themselves, which would also take into consideration elements including
communication and social behavior as they can relate to the health and
fitness of individual whales. Specifically, effects of anthropogenic
noise that result in ``take'' (including harm) to individual whales are
currently addressed under section 7 of the ESA (pursuant to the
standard for considering whether a proposed action would jeopardize the
continued existence of the species). For example, the effects of
military noise on Southern Resident killer whales and other marine
mammals, including on their communication space, are addressed through
ongoing NMFS permitting of U.S. Navy Northwest Training and Testing
activities (85 FR 33914; June 2, 2020). In addition, if data indicate
that anthropogenic noise from a particular Federal action is preventing
or impeding access to prey or preventing or impeding successful feeding
within designated critical habitat, then such effects could constitute
an adverse effect on the prey essential feature and thus the designated
critical habitat itself and for that reason would likely also be
addressed under section 7 of the ESA (pursuant to the standard for
considering whether an action poses destruction or adverse modification
to critical habitat). Thus, the critical habitat and essential features
as defined in this rule will provide a measure of protection from noise
degradation to the extent that an action might cause such noise that
would interfere with the whales' ability to use (e.g., move through for
foraging, migrating, social behavior, or access prey) and successfully
feed (including social communication for prey sharing) within the
critical habitat. Furthermore, the critical habitat designations as
finalized in this rule will result in the added requirement that
Federal agencies explicitly analyze any relevant impacts of noise on
Southern Resident prey species.
[[Page 41675]]
There are several reasons why the approach to sound for Southern
Resident killer whales is compatible with the approaches for the other
two species, Cook Inlet beluga whale DPS and the Main Hawaiian Islands
insular false killer whale (MHI IFKW) DPS, which include sound
qualitatively as a feature or a characteristic of a feature. The MHI
IFKW designation considered the effects of sound on navigation,
communication, and foraging by including sound as a characteristic of
the habitat feature. Similarly, we are able to analyze the equivalent
effects for Southern Resident killer whales through the passage and
prey features as these similarly address navigation for access to
areas, communication for prey sharing, and movement for foraging
(access to prey). For Cook Inlet beluga whale critical habitat, the
sound feature focuses on identifying noise levels that do not lead to
abandonment of the area, providing a level of protection that is
equivalent to our consideration of acoustic barriers in the passage
feature for Southern Resident killer whales (passage feature addresses
access to areas). Therefore, descriptions of both sound essential
features for false killer whales and beluga whales inform the
qualitative assessment of habitat-related impacts from anthropogenic
sound, specifically on passage, access to critical habitat, and use of
critical habitat, similar to passage and prey features for Southern
Residents killer whales that equally address access and use of critical
habitat. Likewise, the critical habitat (Habitat of Special Importance)
established by Canada in Canadian waters includes an acoustic
environment feature that addresses the effects of anthropogenic
underwater noise on life history functions, but all the life history
functions that the feature includes are captured in the prey and
passage features of critical habitat in U.S. waters, making the two
approaches consistent in the level of protection they provide for the
species. Finally, no qualitative sound-related feature has been
identified for other whale species with larger ranges (like Southern
Resident killer whales) such as humpback whales (84 FR 54354; October
9, 2019), North Atlantic right whales (81 FR 4838, January 27, 2016),
and north Pacific right whales (68 FR 19000, April 8, 2008).
Consistent with the proposed rule, this final rule does not include
sound as an essential feature for Southern Resident killer whale
critical habitat. We will continue to consider the habitat-related
effects of anthropogenic sound on the whales via the prey and passage
essential features, as detailed above.
Comment 9: Many commenters discussed the importance of prey
availability for the recovery of Southern Resident killer whales,
noting the value of the coastal critical habitat for supporting the
whales' access to prey. One commenter felt that our description of the
prey feature should provide greater specificity by specifying prey
species and priority Chinook salmon runs that constitute essential
features, and identifying quantitative thresholds for prey quantity,
quality, and availability.
Response: We agree with the commenters' view that prey availability
is important to Southern Resident recovery, and we will continue to
carry out section 7 consultations to evaluate potential jeopardy to
killer whales from fisheries and other activities with a Federal nexus
that may impact the whales' prey species. In addition, certain priority
Chinook salmon runs consumed by Southern Resident killer whales are
also ESA-listed, and we will continue to carry out section 7
consultations on Federal activities that may jeopardize ESA-listed
salmon. As stated in the proposed rule and supported by the subsequent
Final Draft Risk Assessment for Salmon FMP Impacts to Southern Resident
Killer Whales (PFMC 2020) and our recent Biological Opinions on
Implementation of the PFMC Salmon FMP (NMFS 2020, NMFS 2021c), we
continue to find that there is not sufficient information to establish
a specific threshold level of prey abundance and accessibility for
ensuring recovery of the whales. While we have used thresholds of low
Chinook salmon abundance to describe high risk conditions for the
whales, we have not been able to identify a quantitative threshold for
a critical habitat prey feature. Even without such a threshold for
critical habitat, however, the final rule and Final Biological Report
highlight the rigorous scientific information available that supports
our evaluation of prey availability as a feature. That supporting
information also includes our current understanding of the different
prey species important to the whales.
There is extensive evidence that Southern Resident killer whales
have a preference for Chinook salmon prey in inland waters in the
summer and fall, as well as other species of salmonids at particular
times and locations (Final Biological Report, NMFS 2021a). There is
emerging scientific information supporting a similar preference for
Chinook salmon in coastal waters as longer term studies have documented
for inland waters, though the studies in coastal waters have also
documented a wider range of prey species in the diet compared to the
diet in inland waters. The coastal data, however, are limited (small
sample size from limited areas and seasons compared to data for inland
waters) and still emerging as research continues. Therefore, we have
not specified prey species in the description of the prey feature at
this time. However, we will continue to use the best available
information on prey species in the diet of the whales and incorporate
new information on prey as our understanding evolves, as we have in
consultations on the inland waters critical habitat.
Comment 10: One commenter disputed the proposed rule's analysis
regarding the relationship between Chinook salmon abundance on the
outer coast and the availability of prey for Southern Resident killer
whales. The commenter felt that NMFS did not use the best available
data in concluding that Chinook salmon abundance on the outer coast may
pose a risk to the killer whales, citing several studies for additional
consideration. The commenter emphasized the uncertainties that still
exist in our understanding of the relationship between Southern
Resident killer whales population dynamics and Chinook salmon. They
noted the new information available in the Risk Assessment produced by
the PFMC's Southern Resident Killer Whale Working Group, and requested
that these findings be incorporated into the final rule.
Response: The Draft Biological Report (NMFS 2019a) provided a
comprehensive review of the scientific literature on prey availability
as a potential threat to Southern Resident killer whales. The Draft
Biological Report included studies noted by the commenter for
consideration, and acknowledged the limitations and uncertainties of
the currently available information. Since the publication of the
proposed rule on August 27, 2019, new research has been published in
the Final Draft Risk Assessment for Salmon FMP Impacts to Southern
Resident Killer Whales (PFMC 2020) and our recent Biological Opinions
on Implementation of the PFMC Salmon FMP (NMFS 2020, NMFS 2021c). The
Final Biological Report (NMFS 2021a) and FEA (IEc 2021) have been
updated to include these new analyses.
Special Management Considerations
Comment 11: Several commenters mentioned the importance of
addressing upstream threats to Southern Resident
[[Page 41676]]
killer whales' prey, such as sea lion predation, dams, land-based water
pollution, and liquefied natural gas terminals. Some of these
commenters felt the proposed rule did not go far enough to address
these threats, while others felt NMFS should focus on addressing these
threats instead of designating critical habitat. Alternative solutions
proposed by commenters included increased hatchery production; salmon
habitat management, protection, and restoration; dam removal; and sea
lion predation management. Commenters emphasized the need to consider
activities outside the critical habitat with downstream impacts that
could adversely impact essential features of the critical habitat. One
commenter requested that NMFS produce a map of areas outside the
critical habitat where activities could trigger section 7 consultation.
Response: NMFS leads and supports a wide range of activities that
aim to recover Southern Resident killer whales and their prey,
including efforts to address upstream threats highlighted by
commenters. As one of many tools to support recovery efforts,
designating critical habitat provides additional conservation
protections for the whales and their habitat. ESA section 7 requires
that Federal agencies ensure their actions are not likely to destroy or
adversely modify critical habitat. This requirement applies to actions
occurring both within and outside of designated critical habitat areas
which can impact the features of the critical habitat. For example,
consultation would be required on activities that occur in upstream
freshwater locations if those actions may affect essential habitat
features in designated critical habitat. However, as described in the
DEA and FEA (section 1.3, IEc 2019, 2021), no distance threshold can be
predetermined for how far upstream from the critical habitat
consultation may occur. Therefore, it is not possible to produce a map
of areas where certain activities would trigger section 7 consultation.
Comment 12: Several commenters expressed concern about the impacts
of vessel traffic on Southern Resident killer whales. One commenter
requested that we consider including additional management measures for
vessel traffic in the critical habitat final rule, and another
requested that we not exclude the San Francisco Bay shipping lanes.
Additionally, several commenters expressed concern about potential
changes to vessel traffic management in response to the designation of
critical habitat. They were concerned that the critical habitat
designation could result in modifications to routing, voyage planning,
and navigation restrictions that would adversely impact maritime
shipping and towing industries.
Response: The proposed rule identified vessel traffic as one of
twelve types of human activities that have the potential to affect the
habitat features essential to the conservation of Southern Resident
killer whales. The Final Biological Report describes the potential
impacts of vessel traffic on, and existing regulations and procedures
in place to protect, the whales and their habitat. Vessel traffic has a
Federal nexus through the shipping lanes established by the U.S. Coast
Guard (USCG) under the Ports and Waterways Safety Act, and the USCG
consults with NMFS to evaluate impacts on whales and their critical
habitat for the regulatory codification of Traffic Separation Schemes
(TSS).
We did not propose to exclude and are not excluding the San
Francisco Bay shipping lanes from critical habitat designation, nor do
we anticipate that designation will result in changes to the San
Francisco Bay TSS. As described in section 2.9 of the DEA and FEA (IEc
2019, 2021), based on our experience with section 7 and informal
consultations with USCG regarding codification of TSS, NMFS does not
anticipate the expanded critical habitat will generate additional
conservation efforts for killer whales associated with vessel traffic
management beyond the existing need to avoid jeopardy to the whales.
Comment 13: Two commenters stated that scientific research should
be included in the economic analysis as an activity that may be
affected by the critical habitat designation. One commenter stated that
it was unclear if scientific research activities were considered in the
economic analysis, and mentioned that basic marine research supported
by the National Science Foundation (NSF) occurs within the proposed
critical habitat (e.g., NSF Ocean Observatories Initiative). One
commenter recommended that we list this category of activity as part of
our summary of activities that may adversely modify the critical
habitat or be affected by the designation as required by section
4(b)(8) of the ESA.
Response: The effects of certain scientific research activities on
Southern Resident killer whale critical habitat and potential for
changes in management of those activities following critical habitat
expansion were considered within the discussion of other related
activities in the DEA and are still considered in the FEA (IEc 2019,
2021) These activities are directly related to other categories of
activities that may affect critical habitat and are, therefore, grouped
within those activities instead of as a separate category of activity.
For example, seismic-based research is discussed in section 2.12
Geologic Surveys (Including Seismic Surveys), and research related to
renewable energy development is discussed in section 2.6. Alternative
Energy Development. Fisheries-related scientific research is included
under the category of Fisheries in section 2.3. Other types of
scientific research were not identified as posing a specific threat to
the essential features of Southern Resident killer whale critical
habitat, but future consultations on these activities will need to
include an analysis of potential effects on critical habitat. In all
cases, NMFS has not identified any conservation efforts that will
change management of any scientific research activity following the
critical habitat expansion. The DEA and FEA do consider the
administrative costs to NMFS, the action agency, and third parties
relative to this activity associated with future section 7
consultations. These costs are reported in Exhibit 3-9 in the
categories of ``Fisheries'' (for fisheries-related research),
``Renewable Energy Development'' (for wind and wave energy research),
``Seismic Surveying'' (for seismic research), and ``Other'' (for other
types of research).
Application of ESA Section 4(b)(2)
Economic Impacts
Comment 14: A representative from the USACE Sacramento District
commented that consultations in the Sacramento District will need to
consider the effects of their permitted activities on Southern Resident
killer whale critical habitat, and thus those activities may be
affected by the critical habitat expansion. Additionally, costs
associated with future section 7 consultations will be incurred by the
District.
Response: We thank the commenter for pointing out the oversight in
the DEA's exclusion of the Sacramento District from the list of USACE
Districts that manage and conduct activities potentially affected by
the expansion of critical habitat for Southern Resident killer whales.
We agree that because the range of the prey species, which is an
essential feature of Southern Resident killer whale critical habitat,
extends into the Sacramento District's area of authority, activities in
that district may be affected. Consistent with the
[[Page 41677]]
comment, we agree that those costs identified in the report as
potentially resulting from the critical habitat expansion relative to
USACE projects may include projects in the Sacramento District. Because
NMFS does not anticipate any changes to the management of USACE
permitted or implemented activities, these costs are limited to the
administrative costs to NMFS, the USACE, and third party permit
applicants of participating in future section 7 consultations. Section
2.10 of the FEA (IEc 2021) includes the Sacramento District in the list
of USACE districts that manage activities that may be affected by the
expansion (may have administrative costs associated with potential
future consultations).
Comment 15: Multiple commenters stated that the economic analysis
did not adequately consider the potential costs of the proposed
critical habitat designation on fisheries. One commenter noted that
nearly all costs identified in the economic analysis are internal costs
to NMFS instead of third-party costs to the fishing industry.
Commenters acknowledged that NMFS considers additional conservation
efforts as a result of critical habitat designation to be unlikely but
noted that if this assumption proves false, there could be significant
economic impacts to fisheries. The commenters suggested that the
economic analysis should provide a full range of potential economic
impacts to fisheries, including an analysis of potential fisheries
closures. The commenters suggested that such analysis would better
inform the fishing industry, as well as better allow NMFS to weigh
potential costs versus benefits of the designation.
Response: The DEA considered the potential for the expansion of
critical habitat to result in additional conservation efforts,
including fishery closures, for commercial and recreational fisheries
(see section 2.3). At the time of DEA development, NMFS was not able to
envision a scenario in which the expansion of critical habitat for
Southern Resident killer whales would result in changes to management
of salmon fisheries or fisheries with incidental catch of salmon. This
conclusion was due to a number of factors including the ESA listing and
consequent need for recovery of many salmon populations themselves,
existing consideration of fishery impacts and prey availability
relative to the potential for jeopardy to Southern Resident killer
whales even absent critical habitat expansion, and experience over the
past 15 years implementing the inland waters critical habitat for
Southern Resident killer whales, which has not resulted in fishery
management changes beyond those considered during ESA consultation on
prey effects relative to jeopardy. Since that time, there has been
substantial attention to Southern Resident killer whale conservation
and recognition of the link between their recovery and salmon
abundance, suggesting that numerous factors outside of the potential
critical habitat expansion will continue to drive policy decisions
related to management of salmon fisheries. As a result, NMFS is unable
to envision a scenario in which the expanded designation of critical
habitat will result in changes to fishery management. Given this, we
have not quantified costs associated with hypothetical management
actions that are not anticipated outcomes of this critical habitat
rule. Quantified costs are thus limited to those administrative costs
incurred as a result of section 7 consultation on fishery management
plans.
The administrative costs quantified in the DEA and FEA are not
exclusive to NMFS. As shown in Exhibit 1-3 of the FEA, the analysis
estimates administrative costs for each forecasted consultation to
NMFS, a Federal action agency, and a third party (IEc 2021). A third
party to consultation could be a private company (e.g., an applicant
for a Federal permit), a local or state government, or some other
entity. In the case of fisheries, administrative costs are incurred
through the process of consultation on fishery management plans.
Although private third parties such as individual fishermen are not
generally involved in this process, administrative effort on the part
of one or more third parties associated with participation in that
process is included in the estimated costs of consultation.
Comment 16: Numerous commenters stressed the need for the economic
analysis to consider the value of and potential impacts to fisheries
and associated communities in California, Oregon, and Washington. These
commenters stated that the critical habitat designation could harm the
livelihoods of fishermen and coastal communities all along the West
Coast.
Response: The FEA (IEc 2021) recognizes the economic value of
fisheries to communities in Washington, Oregon, and California (IEc
2021, section 2.3.1). However, the critical habitat designation is
unlikely to result in additional conservation efforts due to baseline
protections associated with the ESA-listing status of both the killer
whales and salmon, i.e., due to the need to consider the potential for
fisheries to jeopardize the species even without a critical habitat
designation. As a result, we conclude that the rule will not have
economic impacts on fishing activity beyond administrative costs
associated with section 7 consultation on fishery management plans.
Comment 17: One commenter expressed the opinion that the economic
analysis does not account for certain types of economic costs of the
designation to the fishing industry, including delays associated with
consultation and litigation. The commenter describes that additional
consultations and/or litigation associated with the final rule will
result in costs to NMFS that have not been accounted for such as staff
resources that are required to administer consultations and/or
litigation associated with the final rule. Consultation requirements
and litigation could result in costs to the industry, particularly if
it results in other important actions being delayed because of this
rule.
Response: The administrative time and resources associated with
NMFS' participation in consultations resulting from the critical
habitat expansion, as well as participation of other Federal agencies
and third parties to consultations, are explicitly included in the
administrative costs quantified in the FEA (IEc 2021). It would be
speculative to estimate costs associated with delays in management
actions due to consultation requirements absent data that specifies the
nature, extent, and duration of these types of delays, particularly in
light of the fact that NMFS does not anticipate that the outcome of
consultations would change as a result of the critical habitat
expansion.
While potential exists for third party lawsuits to result from
critical habitat designation, the likelihood, timing, and outcome of
such lawsuits are uncertain. While critical habitat designation may
stimulate additional legal actions, data do not exist to reliably
estimate impacts. That is, estimating the number, scope, and timing of
potential legal challenges would require significant speculation.
Furthermore, litigation risk exists regardless of the critical habitat
designation given the existing protections already afforded the whales
under the MMPA and ESA.
National Security Impacts
Comment 18: Multiple commenters, including the Washington
Department of Fish and Wildlife, expressed opposition to the proposed
exclusions of the QRS off the coast of Washington and the associated
10-km buffer around this area. Several commenters stated that the
proposed exclusion was overly
[[Page 41678]]
broad and not adequately justified. Several commenters stated that
planned activities, such as use of sonar and explosives, can impact the
whales and their prey, and additional mitigation measures or
restrictions on the Department of the Navy's (``Navy'') activities
within the QRS should be implemented. One commenter noted that the QRS
overlaps with the OCNMS, an area that requires a higher standard of
resource protection. Several commenters noted that the QRS area was
within a high use foraging and passage area for Southern Resident
killer whales. Some commenters noted that the 10-km buffer overlaps and
is adjacent to priority Chinook salmon rivers and expressed concern
that the exclusion may impact their ability to access prey. Several
commenters suggested not excluding from the critical habitat
designation a north-south nearshore corridor for passage through the
QRS. Commenters requested we reconsider the Navy's request for this
exclusion given the importance of the area for Southern Resident killer
whales.
Acknowledging the requirement to balance military readiness needs
when designating critical habitat, one commenter made several points in
favor of the exclusion, noting the low number of training and testing
events that the Navy expected to carry out within the QRS and that
those activities would be subject to review under section 101(a)(5)(A)
of the MMPA and section 7 of the ESA.
Response: As discussed in the Draft and Final ESA Section 4(b)(2)
Report (NMFS 2019b, 2021b), to weigh the national security impacts
against conservation benefits of a potential critical habitat
designation, we considered the size of the requested exclusion and the
amount of overlap with the specific critical habitat area; the relative
conservation value of the particular area for the Southern Resident
killer whales; the importance of the site to the Navy mission and
military readiness; the likelihood that the Navy's activities would
destroy or adversely modify critical habitat, and the likelihood that
NMFS would require project modifications to reduce or avoid these
impacts; and, the likelihood that other Federal actions may occur in
the site that would no longer be subject to the critical habitat
provision if the particular area were excluded from the designation. In
response to the public comments, we reconsidered these factors,
information provided by the Navy, and also requested additional
information from the Navy regarding their activities in the portion of
the QRS that also falls within the OCNMS.
In making our decision with respect to this particular area, we did
so within the framework of our joint NMFS/USFWS policy on
implementation of section 4(b)(2) (81 FR 7226, February 11, 2016)
(``Section 4(b)(2) Policy''). Specifically, when a DOD agency requests
an exclusion on the basis of national-security or homeland security
impacts, it must provide a ``reasonably specific justification'' of a
probable incremental impact on national security that would result from
the designation of that specific area as critical habitat (81 FR 7226;
February 11, 2016). Where the request is substantiated with such a
reasonably specific justification, we give ``great weight'' to those
concerns in analyzing the benefits of exclusion.
The QRS and proposed 10-km buffer comprise about 39 percent of Area
1 (Coastal Washington/Northern Oregon Inshore) and about 25 percent of
Area 2 (Coastal Washington/Northern Oregon Offshore), and about 28
percent of Areas 1 and 2 combined, but a very small portion of the
total critical habitat designations for the Southern Resident killer
whale (8.5 percent). The QRS and associated buffer also have a
significant degree of overlap with the OCNMS, where certain activities
are prohibited or not authorized, including oil, gas, or mineral
exploration, development, or production; discharging or depositing any
material or other matter; drilling into, dredging, or otherwise
altering the seabed, with some exceptions (15 CFR 922.152). Because of
these prohibitions, the likelihood of other Federal activities being
proposed in this area of the QRS may be limited.
In support of their request for exclusion of this particular area,
the Navy pointed to the extensive range of planned activities, which
are described in their Final Northwest Training and Testing (NWTT)
Supplemental Environmental Impact Statement (SEIS) published on
September 18, 2020, and stated that any additional, future
modifications to these activities to minimize impacts on Southern
Resident killer whale critical habitat would impact the Navy's ability
to meet mission requirements. The Navy pointed to the use of
explosives, in particular, as being likely to have adverse effects on
killer whale prey, although not likely at the population level for
salmon prey. In their initial request, dated December 5, 2018, the Navy
stated that if additional mitigation requirements result in having to
halt, reduce in scope, or geographically or seasonally constrain
testing activities to prevent adverse effects to critical habitat, this
would in turn impact its ability to test and field new systems and
platforms. To avoid potential, additional, spatial restrictions on its
activities within the QRS, the Navy also requested exclusion of an
additional 10-km buffer around the QRS from the critical habitat
designation. The Navy determined the size for this buffer using sound
attenuation modeling to calculate the farthest distance at which fish
would be expected to be injured from the largest explosive the Navy can
reasonably foresee testing in the QRS; and, in subsequent
communications, the Navy further clarified that the size of the buffer
also incorporated uncertainty for updates in resource-related science,
changes in oceanographic conditions that could reduce attenuation, and
the evolution of military technologies that may behave differently in
the environment.
We continue to find that the Navy has provided a reasonably
specific justification to support the requested exclusion of the QRS,
and consistent with our Section 4(b)(2) Policy (81 FR 7226; February
11, 2016), we gave great weight to these concerns when analyzing the
benefits of exclusion. Our consideration of the multiple factors
discussed, coupled with the potential delay in critical missions in
order to complete adverse modification analyses, caused us to continue
to find that the benefits of excluding the QRS due to national security
impacts outweigh the benefits of designating this portion of Areas 1
and 2 as critical habitat for the Southern Resident killer whales.
However, we are modifying our proposed exclusion of the buffer area.
Specifically, we are not excluding a portion of the 10 km buffer area
around the northeast corner of the QRS, extending along the East side
of the QRS, where it overlaps with the OCNMS. As detailed in the
Section 4(b)(2) Report (NMFS 2021b), we concluded the benefits of
designating critical habitat for Southern Resident killer whales within
this portion of the buffer are not outweighed by national security
impacts of including that portion at this time.
We acknowledge the concerns raised by the commenters regarding
potential impacts to the whales and their prey as a result of certain
Navy activities, such as sonar and explosives. The Biological and
Conference Opinion on the Navy's Northwest Training and Testing
Activities, issued by NMFS on October 19, 2020, addresses activities
within the QRS and analyzed the effects of the Navy's planned
activities on Southern Resident killer whales as well as their prey. As
discussed in that consultation,
[[Page 41679]]
the Navy has adopted certain mitigation measures within the QRS,
including the portion of the QRS that overlaps with the OCNMS, to avoid
or minimize adverse impacts on marine mammals and other marine
resources in this area. Exclusion of the QRS area will not impact our
ability to continue to work closely with the Navy through the section 7
consultation process to minimize and mitigate impacts to the Southern
Resident killer whales as a result of the Navy's testing and training
activities (see 85 FR 72312; November 12, 2020, and https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-northwest-training-and-testing-nwtt-2020).
Critical Habitat Identification
In the following sections, we describe the relevant definitions and
requirements in the ESA and our implementing regulations and the key
information and criteria used to prepare this revision to the Southern
Resident killer whale critical habitat designation. In accordance with
section 4(b)(2) of the ESA and our implementing regulations (50 CFR
424.12), this designation is based on the best scientific information
available.
We followed a five-step process in order to identify the specific
areas eligible for critical habitat designation: (1) Determine the
geographical area occupied by the species at the time of listing, (2)
identify physical or biological habitat features essential to the
conservation of the species, (3) delineate specific areas within the
geographical area occupied by the species on which are found the
physical or biological features, (4) determine whether the feature(s)
in a specific area may require special management considerations or
protection, and (5) determine whether any unoccupied areas are
essential for conservation. Our evaluation and determinations are
described in detail in the Final and Draft Biological Reports (NMFS
2019a, NMFS 2021a) and are summarized below.
Beyond the identification and description of the areas, the
critical habitat designation process also includes additional steps:
Identify whether any area may be precluded from designation because the
area is subject to an INRMP that we have determined provides a benefit
to the species; and consider the economic, national security, or any
other relevant impacts of designating critical habitat and determine
whether to exercise our discretion to exclude any particular areas.
These steps are described in the Final ESA Section 4(b)(2) Report (NMFS
2021b) and the FEA (IEc 2021) and are summarized in later sections of
this rule.
Geographical Area Occupied by the Species
The term ``geographical area occupied by the species'' is defined
as an area that may generally be delineated around a species'
occurrences as determined by the Secretary (i.e., range). Such areas
may include those areas used throughout all or part of the species'
life cycle, even if not used on a regular basis (e.g., migratory
corridors, seasonal habitats, and habitats used periodically, but not
solely by vagrant individuals) (50 CFR 424.02).
Southern Resident killer whale summer inland habitat use was
previously described in the 2006 critical habitat designation (71 FR
69054, November 29, 2006). At that time, few data were available on
Southern Resident distribution and habitat use of coastal and offshore
areas in the Pacific Ocean. While it was known that the whales occupied
these waters for a portion of the year, only 28 sightings of Southern
Resident killer whales were available to describe their coastal range
(Krahn et al. 2004, NMFS 2006). In the 2006 designation, these coastal
areas were included in the identified geographical area occupied by the
species, but the lack of data precluded the agency from designating
specific areas within the coastal range as critical habitat.
Since the 2006 designation, considerable effort has been made to
better understand the range and movements of Southern Resident killer
whales once they leave inland waters. Land- and vessel-based
opportunistic and survey-based visual sightings, satellite tracking,
and passive acoustic research conducted since 2006 have provided an
updated estimate of the whales' coastal range that extends from the
Monterey Bay area in California, north to Chatham Strait in Southeast
Alaska. In addition, these data have provided a better understanding of
the whales' use of these waters, allowing us to identify areas that
meet the definition of critical habitat under the ESA.
While the range of Southern Resident killer whales includes coastal
and inland waters of British Columbia, Canada, we cannot designate
critical habitat in areas outside of U.S. jurisdiction (50 CFR
424.12(g)). The Government of Canada has designated critical habitat
for Northern and Southern Resident killer whales in Canadian waters
under its Species at Risk Act. In its 2008 recovery strategy and 2011
amended recovery strategy, the Government of Canada identified the
Canadian side of Haro and Juan de Fuca Straits, as well as Boundary
Pass and adjoining areas in the Strait of Georgia as critical habitat
for Southern Resident killer whales (Fisheries and Oceans Canada 2011).
The Government of Canada recently designated a new critical habitat
area for Northern and Southern Resident killer whales in ocean waters
on the continental shelf off southwestern Vancouver Island, including
Swiftsure and La P[eacute]rouse Banks (Fisheries and Oceans Canada
2018).
Some Alaskan waters are considered to be within the geographic area
occupied by Southern Resident killer whales, but we are not expanding
critical habitat there at this time because there is insufficient
information about the whales' distribution, behavior, and habitat use
in these areas. For example, there is only one sighting of Southern
Resident killer whales in Southeast Alaska, in Chatham Strait in 2007.
While we can infer that some of the essential habitat features, such as
prey, are present to support the whales there, we do not have
sufficient data to adequately describe Southern Resident use of habitat
features in this area or identify specific areas with those features.
Physical and Biological Features Essential to Conservation
The ESA does not specifically define physical or biological
features. However, court decisions and joint NMFS and USFWS regulations
at 50 CFR 424.02 (81 FR 7413; February 11, 2016) provide guidance on
how physical or biological features are expressed. Physical and
biological features support the life-history needs of the species,
including but not limited to, water characteristics, soil type,
geological features, sites, prey, vegetation, symbiotic species, or
other features. A feature may be a single habitat characteristic, or a
more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Based on the best available scientific information regarding
natural history and habitat needs, the following features were
identified in the 2006 critical habitat designation as essential to the
conservation of the species within inland waters of Washington: (1)
Water
[[Page 41680]]
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. We identified the same three biological and physical features
as essential for the conservation of Southern Resident killer whales
within their coastal range, as described below.
(1) Water quality to support growth and development. Water quality
supports Southern Resident killer whales' ability to forage, grow, and
reproduce free from disease and impairment. Southern Resident killer
whales are highly susceptible to biomagnification of pollutants, such
that chemical pollution is considered one of the prime impediments to
their recovery (NMFS 2008). Water quality is essential to the whales'
conservation, given the whales' present contamination levels, small
population numbers, increased extinction risk caused by any additional
mortalities, and geographic range (and range of their primary prey)
that includes highly populated and industrialized areas. Water quality
is especially important in high-use areas where foraging behaviors
occur and contaminants can enter the food chain. The absence of
contaminants or other agents of a type and/or amount that would inhibit
reproduction, impair immune function, result in mortalities, or
otherwise impede the growth and recovery of the Southern Resident
population is a habitat feature essential for the species' recovery.
Exposure to oil spills also poses additional direct threats as well as
longer-term population level impacts. Therefore, the absence of these
chemicals is essential to Southern Resident conservation and survival.
(2) Prey species of sufficient quantity, quality and availability
to support individual growth, reproduction and development, as well as
overall population growth. Southern Resident killer whales need to
maintain their energy balance all year long to support daily activities
(foraging, traveling, resting, socializing) as well as gestation,
lactation, and growth. Maintaining their energy balance and body
condition is also important because when stored fat is metabolized,
lipophilic contaminants may become more mobilized in the bloodstream,
with potentially harmful health effects (Mongillo et al. 2016).
Southern Resident killer whales are top predators that show a strong
preference for salmonids in inland waters, particularly larger, older
age class Chinook (age class of 3 years or older) (Ford & Ellis 2006,
Hanson et al. 2010). Samples collected during observed feeding
activities, as well as the timing and locations of killer whales' high-
use areas that coincide with Chinook salmon runs, suggest the whales'
preference for Chinook salmon extends to outer coastal habitat use as
well (Hanson et al. 2017, Shelton et al. 2018, Hanson et al. 2021). At
some low Chinook abundance level, the prey available to the whales will
not be sufficient to forage successfully leading to adverse effects on
body condition or fecundity (NMFS 2020). Habitat conditions should
support the successful growth, recruitment, and sustainability of
abundant prey to support the individual growth, reproduction, and
development of Southern Resident killer whales.
Age, size, and caloric content all affect the quality of prey, as
do contaminants and pollution. The availability of key prey is also
essential to the whales' conservation. Availability of prey along the
coast is likely limited at particular times of year due to the small
run sizes of some important Chinook salmon stocks, as well as the
distribution of preferred adult Chinook salmon that may be relatively
spread out prior to their aggregation when returning to their natal
rivers. Availability of Chinook salmon to the whales may also be
impacted by sound from vessels or other sound sources if they raise
average background noise within the animal's critical bandwidth to a
level that is expected to chronically or regularly reduce echolocation
space (Joy et al., 2019, Veirs et al. 2016), and by competition from
other predators including other resident killer whales, pinnipeds, and
fisheries (Chasco et al. 2017).
(3) Passage conditions to allow for migration, resting, and
foraging. Southern Resident killer whales are highly mobile, can cover
large distances, and range over a variety of habitats, including inland
waters and open ocean coastal areas from the Monterey Bay area in
California north to Southeast Alaska. The whales' habitat utilization
is dynamic. Analyses of Southern Resident killer whales' movement
patterns on the outer coast from satellite tag data have revealed
preferred depth bands and distances from shore that suggest potential
travel corridors, and variations in travel speed or duration of
occurrence that may indicate different behavioral states (Hanson et al.
2017).
Southern Resident killer whales require open waterways that are
free from obstruction (e.g., physical, acoustic) to move within and
migrate between important habitat areas throughout their range, find
prey, communicate, and fulfill other life history requirements. As an
example of an ``acoustic obstruction,'' killer whale occurrence in the
Broughton Archipelago, Canada declined significantly when acoustic
harassment devices were in use at a salmon farm, and returned to
baseline levels once the devices were no longer used (Morton & Symonds
2002), indicating the introduction of this chronic noise source into
the environment acted as an acoustic barrier and/or deterrent to the
whales' use of the area. The passage feature may be less likely to be
impacted in coastal ocean waters compared to the more geographically
constricted inland waters because the whales may be able to more easily
navigate around potential obstructions in the open ocean, but these
passage conditions are still a feature essential to the whales'
conservation and which may require special management considerations or
protection.
We also considered whether to identify sound as a fourth essential
feature. Southern Resident killer whales produce and detect sounds for
communication, navigation, and foraging. An acoustic environment, or
soundscape, in which the whales can detect and interpret sounds is
critical for carrying out these basic life functions. In recognition of
this, we previously considered identifying sound as a potential
essential feature (69 FR 76673; December 22, 2004), but ultimately
concluded that we lacked sufficient information to do so. CBD
petitioned us to again consider identifying in-water sound as an
essential feature of the currently designated critical habitat and any
new designation.
We considered the request and examined new information that has
become available since publication of the 2006 critical habitat
designation final rule, but similar to limitations in our knowledge in
2006, at this time we are not able to identify specific in-water sound
levels or thresholds for communication, behavioral or displacement
impacts as specifically requested in the petition by CBD. More
importantly, we are able to assess adverse habitat-related effects of
anthropogenic sound by evaluating impacts to the prey and passage
essential features of current critical habitat for Southern Resident
killer whales, as well as to the whales themselves, and thus we do not
consider it necessary to identify sound as a separate essential
feature. The final rule is consistent with the proposed rule
[[Page 41681]]
(84 FR 49214, September 19, 2019) and does not include sound as an
essential feature for Southern Resident killer whale critical habitat.
We will continue to consider the habitat-related effects of
anthropogenic sound on the whales via the prey and passage essential
features, as detailed in this section. Under the ESA, we separately
consider effects of anthropogenic sound on individual whales (which is
scaled up to the listed species unit) and habitat-related impacts
(which is scaled up to the critical habitat designation). For the
former, NMFS has an established framework and thresholds for
considering impacts to marine mammals' hearing (specifically temporary
or permanent hearing loss), as outlined in our ``Technical Guidance for
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing''
(NMFS 2018), and NMFS is also working to refine our guidance on the
effects of anthropogenic sound on marine mammal behavior. We will
continue to evaluate and manage direct and indirect effects (including
consideration of noise interference with whale communication and social
behavior) of anthropogenic sound on individual animals and the
population relative to the jeopardy standard in ESA section 7 analyses
and through MMPA incidental take authorizations.
Adverse habitat-related effects may stem from the introduction of a
chronic noise source that degrades the value of habitat by interfering
with the sound-reliant animal's ability to gain benefits from that
habitat (i.e., altering the conservation value of the habitat). NMFS
does not currently have a methodology to establish quantifiable
thresholds for determining when chronic noise reaches a level such that
it alters the conservation value in this way. However, we can, and do,
consider these effects qualitatively.
In our experience evaluating effects to Southern Resident killer
whale critical habitat in inland waters, we are able to assess adverse
habitat-related effects of anthropogenic sound by evaluating impacts to
the prey and passage essential features of current critical habitat for
Southern Resident killer whales, and thus we do not consider it
necessary to identify sound as a separate essential feature. For
example, we evaluate whether chronic anthropogenic sound might alter
the conservation value of habitat by reducing the availability of the
whales' prey in a particular foraging area by reducing the effective
echolocation space for the whales to forage or communicate, or creating
a barrier that restricts movements through or within an area necessary
for migration, resting, social behavior, or foraging. Thus, the prey
and passage essential features as defined in this rule will provide a
measure of protection from noise degradation to the extent that an
action might cause such noise that would interfere with the whales'
ability to use (e.g., move through as in passage or access prey) and
successfully feed within the critical habitat (prey feature, including
social communication for prey sharing). We will use the same approach
for evaluating these effects in coastal critical habitat, consistent
with our existing practice in inland waters critical habitat.
In response to public comments requesting that the final rule
include sound as an essential feature and emphasizing the importance of
communication space for social behavior and pod cohesion (see Comment 8
and response), we revised the Biological Report to clarify that the
effects of sound on communication and social behavior are considered in
the passage and prey features (as well as effects of sound on
individual whales themselves via section 7, outside of critical habitat
designation, see sections V.B.2-4, Final Biological Report, NMFS
2021a). Additionally, we will continue to consider and address impacts
of anthropogenic noise on the whales themselves, which would also take
into consideration elements including communication and social behavior
as they can relate to the health and fitness of individual whales.
Specific Areas Within the Geographical Area Occupied by the Species
The three specific areas within the geographic area (range)
occupied by the species identified in the 2006 critical habitat
designation are carried forward unchanged by the critical habitat
revision. We refer to them here as Inland Waters Areas 1-3 to
differentiate them from the six newly designated specific coastal areas
(Coastal Areas 1-6). In the 2006 designation, a lack of data precluded
us from determining whether any specific areas within the coastal range
met the definition of critical habitat. Research and data collected
since then have allowed us to better characterize the whales' habitat
use (NMFS 2021a). These data are now sufficient to identify specific
areas within the whales' coastal range.
CBD requested that we identify critical habitat in areas of the
Pacific Ocean between Cape Flattery, Washington, and Point Reyes,
California, extending approximately 47 mi (76 km) offshore. This
requested area was based mainly on the extent of the whales' movements
from NMFS' satellite tag data: Tagged animals traveled as far south as
Point Reyes and as far offshore as 47 mi. However, the petition stated
that because NMFS was continuing to analyze data describing the
Southern Resident killer whales' use of coastal and offshore waters,
the petition requested we ``refine this proposal, as necessary, to
include additional inhabited zones or to focus specifically on areas of
concentrated use'' (CBD 2014). To delineate specific areas, we relied
on the satellite tag data but also incorporated information on
sightings, acoustic data, and prey sampling. As a result, our specific
areas differ in their boundaries from the petitioner's request. For
example, there are documented sightings of Southern Resident killer
whales south of Point Reyes, so the boundary of the critical habitat is
farther south than the petitioners requested.
We identified six specific areas off the U.S. West Coast,
delineated based on their habitat features, including variation in the
primary feature, and variation in predominant habitat use (for example
foraging versus traveling) by Southern Resident killer whales. They
encompass most (but not all) of the whales' U.S. coastal range, and
vary in size. The ESA and our regulations provide the agency discretion
to determine the scale at which specific areas are identified (50 CFR
424.12; 81 FR 7413; February 11, 2016). We selected the boundaries
between areas to reflect the spatial scale of the whales' movements and
behavioral changes (e.g., where tagged whales were primarily traveling
versus observed foraging), as well as to align with some existing
fishery management boundaries (e.g., Pigeon Point and Point Sur are
geographic points used by the PFMC in salmon management; PFMC 2016).
Each area contains all three essential features, but the primary
feature varies by area and the primary feature of each area is noted
below. Identifying six areas with varying primary features, instead of
just one comprehensive critical habitat area containing all three
features, will assist with section 7 consultations and analyses about
how actions would affect the conservation value of an area based on the
primary feature. In addition, identifying six areas rather than one
also assisted in analyzing benefits and costs in the ESA Section
4(b)(2) Report (NMFS 2021b). More information about each area,
including descriptions of the whales' use of the area based on
sighting, satellite tagging, and acoustic detection data, can be found
in the Final Biological Report (NMFS 2021a). All
[[Page 41682]]
area sizes are based on best available spatial data at the time of the
final rule.
Beginning at the westernmost extent of the previously designated
Strait of Juan de Fuca critical habitat area (Inland Waters Area 3),
the new coastal areas span the U.S. West Coast from the U.S.
international border with Canada south to Point Sur, California, which
is just south of the southernmost sightings of Southern Resident killer
whales in Monterey Bay. On January 27, 2008, Southern Resident killer
whales were sighted off Cypress Point, Carmel Bay, just south of
Monterey Bay, traveling south (N. Black, Monterey Bay Whale Watch, Orca
Network sightings archives). Given uncertainty in the exact extent of
the whales' southward movements, we elected to delineate the southern
boundary of the specific area just south of the last sighting (by
approximately 20 mi (32.2 km)) and align the boundary with the existing
salmon management area boundary at Point Sur, California (PFMC 2016).
The inshore (eastern) boundary of the areas is delineated by a
continuous line along the coast at 20-ft (6.1-m) depth relative to mean
high water. This continuous line crosses river mouths and entrances to
semi-enclosed bays and estuaries at the 20 ft depth contour where
available or crossing at significant barriers (e.g., jetties). Based on
the available data, we defined the shoreward boundary of the specific
areas as a line along the coast at 20 ft (6.1 m) in depth relative to
the mean high water line. Southern resident killer whales rarely occur
in waters shallower than 20 ft (6.1 m). For example, based on data from
four satellite-tagged Southern Resident killer whales, less than 1
percent of the whales' outer coastal locations were in depths less than
6 m (approximately 20 ft) (NWFSC unpubl. Data, see the Biological
Report, NMFS 2021a) (but locations based on satellite tags are not
exact and tidal conditions are unknown for these observations). In
addition, there are no data from sightings or satellite tags to
indicate that Southern Resident killer whales enter river mouths or
semi-enclosed bays and estuaries along the coast, although data
indicate the whales do use the open embayment of Monterey Bay in
California. Finally, the inward boundary is consistent with the inshore
boundary of the 2006 critical habitat designation in inland waters
(although the inshore boundary of the coastal critical habitat is
delineated relative to the mean high water line instead of extreme high
water, the inshore boundary in inland waters) and the proposed rule (84
FR 49214, September 19, 2019).
The offshore (western) boundary of the areas is the 656.2 ft (200
m) depth contour, or isobath. This was selected because movement data
from satellite-tagged Southern Resident killer whales indicate that
most coastal locations were in water depths of 200 m or less (96.5
percent) and within 21.1 mi (34 km) from shore (95 percent) (Hanson et
al. 2017). Additionally, the limited information available on the
distribution of salmon in offshore waters indicates Southern Resident
killer whale prey (an essential feature of the habitat) is present in
waters of 200 m or less. The two areas off the coast of Washington
share the same northern and southern boundaries but are separated
longitudinally at the 50-m isobath, such that Coastal Area 1 ranges
from 6.1-50 m depth while Coastal Area 2 ranges from 50-200 m depth.
The 50-m isobath was selected to distinguish the areas because the
majority (42 of 52, or 76.4 percent) of prey samples from observed
Southern Resident killer whale predation events in these two areas were
collected in water depths of 50 m or less, and just over half of the
satellite tag locations in these two areas (54 percent) were in water
depths of 50 m or less (NWFSC unpubl. data; Hanson et al. 2021, see the
Biological Report, NMFS 2021a).
The latitudinal boundaries between the specific coastal areas were
initially selected to coincide with some of the coastal salmon
management area boundaries as defined in the Pacific Salmon FMP and
used for the management of salmon harvest (Chinook and Coho
specifically) (PFMC 2016). Although the areas of highest Southern
Resident killer whale occurrence, as indicated by a duration-of-
occurrence model from satellite tag data (Hanson et al. 2017), did not
precisely match the salmon management areas, they generally align with
the available information on salmonid and other fish species that may
be prey to Southern Resident killer whales. For example, the whales'
highest use areas occurred in the North of Falcon fishery management
area between Cape Falcon, Oregon and the Canadian border, and
relatively high use occurred within the Klamath Management Zone.
Similar to inland waters, we assume that Southern Resident killer
whales respond to regional and seasonal abundance of salmon,
particularly Chinook salmon runs. We then adjusted some of the
boundaries to better reflect what we know about the whales' use of the
areas (e.g., areas where foraging has been observed and/or prey samples
collected, versus areas where whales are considered mainly to be
traveling through). We selected Cape Meares, Oregon, as the southern
boundary of Areas 1 and 2 instead of Cape Falcon just to the north,
because the Cape Meares boundary encompassed all but one of the
observed predation events and prey sample locations off the Washington
and Oregon coasts. We selected Cape Mendocino, California, as the
boundary between Areas 4 and 5 instead of Horse Mountain just to the
south because the three predation events observed in California
occurred off the Eel River just north of Cape Mendocino, and that
boundary better demarcated the southern extent of a higher-use area
based on the duration-of-occurrence model of satellite-tagged whale
movements (NMFS 2021a).
The six specific coastal areas are:
Coastal Area 1--Coastal Washington/Northern Oregon Inshore Area:
U.S. marine waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S.
international border with Canada south to Cape Meares (45[deg]29'12''
N), between the 6.1-m and 50-m isobath contours. This area covers
1,437.9 mi\2\ (3,724.2 km\2\) and includes waters off Clallam,
Jefferson, Grays Harbor, and Pacific counties in Washington and Clatsop
and Tillamook counties in Oregon. The primary essential feature of this
area is prey.
Coastal Area 2--Coastal Washington/Northern Oregon Offshore Area:
U.S. marine waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S.
international border with Canada south to Cape Meares (45[deg]29'12''
N), between the 50-m and 200-m isobath contours. This area covers
4,617.2 mi\2\ (11,958.6 km\2\), and as with Area 1, includes waters off
Clallam, Jefferson, Grays Harbor, and Pacific counties in Washington
and Clatsop and Tillamook counties in Oregon. The primary essential
feature of this area is prey.
Coastal Area 3--Central/Southern Oregon Coast Area: U.S. marine
waters from Cape Meares (45[deg]29'12'' N) south to the OR/CA border
(42[deg]00'00'' N), between the 6.1-m and 200-m isobath contours. This
area covers 4,962.6 mi\2\ (12,853.1 km\2\) and includes waters off
Tillamook, Lincoln, Lane, Douglas, Coos, and Curry counties in Oregon.
The primary essential feature of this area is passage.
[[Page 41683]]
Coastal Area 4--Northern California Coast Area: U.S. marine waters
from the OR/CA border (42[deg]00'00'' N) south to Cape Mendocino, CA
(40[deg]26'19'' N), between the 6.1-m and 200-m isobath contours. This
area covers 1,606.8 mi\2\ (4,161.5 km\2\) and includes waters off Del
Norte and Humboldt counties in California. The primary essential
feature of this area is prey.
Coastal Specific Area 5--North Central California Coast Area: U.S.
marine waters from Cape Mendocino, CA (40[deg]26'19'' N) south to
Pigeon Point, CA (37[deg]11'00'' N), between the 6.1-m and 200-m
isobath contours. This area covers 3,976.2 mi\2\ (10,298.4 km\2\) and
includes waters off Humboldt, Mendocino, Sonoma, Marin, San Francisco,
and San Mateo counties in California. The primary essential feature of
this area is passage.
Coastal Specific Area 6--Monterey Bay Area: U.S. marine waters from
Pigeon Point, CA (37[deg]11'00'' N) south to Point Sur, CA
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This
area covers 709.7 mi\2\ (1,838.2 km\2\) and includes waters off San
Mateo, Santa Cruz, and Monterey counties in California. The primary
essential feature of this area is prey.
Need for Special Management Considerations or Protection
Joint NMFS and USFWS regulations at 50 CFR 424.02 define special
management considerations or protection to mean methods or procedures
useful in protecting physical and biological features essential to the
conservation of listed species.
Human activities managed under a variety of legal mandates have the
potential to affect the habitat features essential to the conservation
of Southern Resident killer whales, including those that could increase
water contamination and/or chemical exposure, decrease the quantity or
quality of prey, or could inhibit safe, unrestricted passage between
important habitat areas to find prey and fulfill other life history
requirements. Examples of these types of activities include (but are
not limited to): (1) Salmon fisheries and fisheries that take salmon as
bycatch; (2) salmon hatcheries; (3) offshore aquaculture/mariculture;
(4) alternative energy development; (5) oil spills and response; (6)
military activities; (7) vessel traffic; (8) dredging and dredge
material disposal; (9) oil and gas exploration and production; (10)
mineral mining (including sand and gravel mining); (11) geologic
surveys (including seismic surveys); and (12) activities occurring
adjacent to or upstream of critical habitat that may affect essential
features, that we refer to as ``upstream'' activities (including
activities contributing to point-source water pollution, power plant
operations, liquefied natural gas terminals, desalinization plants). We
identified these activities based on our ESA section 7 consultation
history since 2006 for existing Southern Resident killer whale critical
habitat, along with additional information that has become available
since the original designation. This is not an exhaustive or complete
list of potential activities; rather, these activities are of primary
concern because of their potential effects that we are aware of at this
time and that should be considered in accordance with section 7 of the
ESA when Federal agencies authorize, fund, or carry out these
activities. The ESA section 7 requirement that Federal agencies ensure
their actions are not likely to destroy or adversely modify critical
habitat applies not only to actions occurring within designated
critical habitat, but also to actions occurring outside of designated
areas which may impact the features of the critical habitat. For
example, consultation would be required on activities that occur in
waters shallower than 20 ft (6.1 m) or in upstream freshwater locations
if those actions are likely to adversely affect essential habitat
features in designated critical habitat.
Table 1 lists the activities that may affect the essential features
in each of the six specific coastal areas such that the essential
features may require special management or consideration. The Final
Biological Report (NMFS 2021a) and FEA (IEc 2021) provide a more
detailed description of the potential effects of these activities on
the essential features.
Table 1--Size of Each Specific Area and Activities That May Affect the
Essential Features and Necessitate the Need for Special Management
Considerations or Protection Within Each Area Are Listed. Some
Activities Occur Upstream But May Affect Features in the Specific Area
------------------------------------------------------------------------
Specific area Size (mi\2\) * Activities
------------------------------------------------------------------------
1--Coastal Washington/Northern 1,437.9 FISH, HAT, SPILL,
Oregon Inshore Area. MIL, VESS, DR, POLL,
PP.
2 --Coastal Washington/Northern 4,617.2 FISH, HAT, SPILL,
Oregon Offshore Area. MIL, VESS, DR, POLL,
PP.
3--Central/Southern Oregon Coast 4,962.6 FISH, HAT, EN, SPILL,
Area. MIL, VESS, DR, GEO,
POLL, PP, LNG.
4--Northern California Coast Area 1,606.8 FISH, HAT, SPILL,
MIL, VESS, DR, POLL,
PP.
5--North Central California Coast 3,976.2 FISH, HAT, SPILL,
Area. MIL, VESS, DR, MIN,
POLL, PP.
6--Monterey Bay Area............. 709.7 FISH, HAT, SPILL,
VESS, DR, POLL, PP,
DESAL.
------------------------------------------------------------------------
Activities: FISH = fisheries, HAT = hatcheries, EN = alternative energy
projects, SPILL = oil spills and response, MIL = military activities,
VES = vessel traffic, DR = dredging and dredge material disposal, MIN
= mineral mining, GEO = geologic surveys, POLL = point-source water
pollution, PP = power plants, LNG = LNG terminals, DESAL =
desalinization plants.
* Revisions to area size from proposed are based on best available
spatial data at the time of the final rule.
Unoccupied Areas
The ESA section 3(5)(A)(ii) definition of critical habitat includes
unoccupied areas, which are defined as specific areas outside the
geographical area occupied by the species at the time it is listed if
such areas are determined to be essential to the conservation of the
species. At the present time, we have not identified additional
specific areas outside the geographic area occupied by Southern
Resident killer whales that may be essential for the conservation of
the species. We considered potential future impacts that climate change
might have on the geographical area occupied by the whales,
particularly with respect to shifts in distribution of their salmon
prey. In accordance with NMFS guidance on the treatment of climate
change in NMFS ESA decisions (NMFS 2016), we determined that there is
insufficient evidence to identify unoccupied areas that are essential
to the conservation of Southern resident killer whales based on
potential impacts from climate change.
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or
[[Page 41684]]
controlled by DOD, or designated for its use, that are subject to an
INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary of Commerce determines in writing that such a plan
provides a benefit to the species for which critical habitat is being
designated.
DOD (Army, Navy, and Air Force) helped us identify military lands
that may overlap with areas under consideration for critical habitat.
The Navy identified two military installations adjacent to these areas,
both of which have INRMPs in place for land-based installation
activities: Pacific Beach Annex, Naval Station Everett, Washington, and
Naval Support Activity (NSA) Monterey, California. Based on our review
of these plans, these two shore-based military areas covered by INRMPs
do not overlap the critical habitat areas, and thus the critical
habitat areas are not subject to the INRMPs or ineligible for
designation (see section III.F of the Final ESA Section 4(b)(2) Report,
NMFS 2021b).
Application of ESA Section 4(b)(2)
The foregoing discussion describes those areas that are eligible
for designation as critical habitat. Specific areas eligible for
designation are not automatically designated as critical habitat. As
described previously, section 4(b)(2) of the ESA requires that the
Secretary consider the economic impact, impact on national security,
and any other relevant impacts. The Secretary may exclude an area from
designation if he determines the benefits of exclusion outweigh the
benefits of designation based on the best available scientific and
commercial data. The Secretary may not exclude an area from designation
if exclusion of that area will result in the extinction of the species.
The first step in conducting an ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of
the ESA defines critical habitat as ``specific areas,'' while section
4(b)(2) of the ESA requires the agency to consider certain factors
before designating any ``particular area.'' The ESA and regulations
provide the agency discretion to determine the scale at which specific
areas (50 CFR 424.12) and impacts (50 CFR 424.19) are identified. For
this revision to the designation of Southern Resident killer whale
critical habitat, we identified six ``specific'' areas off the coasts
of Washington, Oregon, and California, as described above. For our
economic impact analysis, we defined the ``particular areas'' to be
equivalent to the ``specific areas.'' This approach and scale allowed
us to most effectively consider the conservation value of the different
areas when balancing conservation benefit of designation against
economic benefits of exclusion. Where we considered impacts on national
security or impacts on tribes, we based the ``particular areas'' on
land ownership or control (e.g., land controlled by the DOD within
which national security impacts may exist, or Indian lands). This
approach and scale allowed us to consider impacts and benefits
associated with management by the military or land ownership and
management by Indian tribes.
Identify and Determine Impacts of Designation
The primary impact of a critical habitat designation stems from the
requirement under section 7(a)(2) of the ESA that Federal agencies
ensure that their actions are not likely to result in the destruction
or adverse modification of critical habitat. Determining this impact is
complicated by the fact that section 7(a)(2) contains the associated
requirement that Federal agencies must also ensure their actions are
not likely to jeopardize the species' (in this case the DPS') continued
existence. The true impact of this designation is the extent to which
Federal agencies modify their actions to ensure their actions are not
likely to destroy or adversely modify the critical habitat of the DPS,
beyond any modifications they would make because of the DPS' listing
and the jeopardy provision, and the associated increase in consultation
costs. Additional, indirect impacts of designation include state and
local protections that may be triggered as a result of the designation.
In determining the impacts of designation, consistent with our
regulations (50 CFR 424.19) and policy (81 FR 7226; February 11, 2016),
we focused on identifying the incremental impacts. To determine the
incremental impacts of the revised designation, we examined what the
state of the world would be with and without the addition of coastal
critical habitat for Southern Resident killer whales. The ``without the
coastal critical habitat'' scenario represents the baseline for the
analysis. It includes process requirements and habitat protections
already afforded Southern Resident killer whales under their Federal
listing or under other Federal, state, and local regulations. The
``with coastal critical habitat'' scenario describes the incremental
impacts associated specifically with the designation of coastal
critical habitat for Southern Resident killer whales. The primary
potential impacts of critical habitat designation we identified were:
(1) The economic costs associated with additional administrative effort
of including a coastal critical habitat analysis in section 7
consultations for Southern Resident killer whales, (2) impacts to
national security, and (3) the possible harm to our working
relationship with Indian tribes and possible overlap with tribal lands
or impacts to tribal usual and accustomed (U&A) areas.
Economic Impacts
The FEA (IEc 2021) prepared by Industrial Economics, Incorporated
(IEc), sought to determine the impacts on economic activities due to
the designation of the additional critical habitat, above and beyond--
or incremental to--those ``baseline'' impacts due to existing required
or voluntary conservation efforts being undertaken due to other
Federal, State, and local regulations or guidelines (IEc 2021).
Incremental impacts may include the direct costs associated with
additional effort for section 7 consultations (including consultations
that otherwise would have been limited to jeopardy issues, reinitiated
consultations, or new consultations occurring specifically because of
the designation) as well as the direct costs associated with
conservation efforts or project modifications that would not have been
required under the jeopardy standard. Incremental impacts may also
include indirect impacts resulting from reaction to the potential
designation of critical habitat and triggering of additional
requirements under State or local laws intended to protect sensitive
habitat.
To quantify the economic impact of designation, the FEA (IEc 2021)
employed the following steps:
(1) Identify the baseline of economic activity and the statutes and
regulations that constrain that activity in the absence of the critical
habitat designation in the additional areas;
(2) Identify the types of activities that are likely to be affected
by the critical habitat designation;
(3) Project the projects and activities identified in Step 2 over
space and time based on the best available information on planned
projects, permitting schedules, or average annual levels of activity;
(4) Estimate the costs of administrative effort and, where
applicable, conservation efforts or project modifications recommended
for the activity to comply with the ESA's critical habitat provisions;
(5) Apply well-accepted discounting methods to calculate the
present value cost in each year of the analysis and sum over time to
calculate the total
[[Page 41685]]
present value and annualized impacts; and
(6) Aggregate the costs at the particular area level. (Impacts are
reported at the particular area level; particular areas for the
analysis are the same as the six specific areas.)
The first step in the analysis was to identify the baseline level
of protection already afforded Southern Resident killer whales in the
additional areas being proposed as critical habitat. The baseline for
this analysis is the existing state of regulation prior to the revision
of critical habitat, including the listing of the species under the ESA
(and protections under ESA sections 7, 9, and 10); ESA protections for
listed salmon given that salmon are included as part of the prey
essential feature of critical habitat for the whales; protections due
to other co-occurring ESA listings and critical habitat designations,
such as those for the Southern DPS of North American green sturgeon (50
CFR 226.219) and leatherback sea turtles (50 CFR 226.207); and other
Federal, state and local laws and guidelines, such as the MMPA, Clean
Water Act, and state environmental quality laws (IEc 2021).
In step 2, the NMFS West Coast Region's record of section 7
consultations and NMFS' experience and professional judgment in
conducting section 7 consultations were used to identify Federal
activities that occur within the areas being considered for Southern
Resident killer whale critical habitat and that may affect the critical
habitat features. Activities occurring adjacent to or upstream of those
areas that may affect the water quality and prey availability essential
features within the critical habitat areas were also identified. These
activities included salmon fisheries and other fisheries that have
incidental bycatch of salmon, salmon hatcheries, offshore aquaculture/
mariculture, alternative energy development, oil spills and response,
military activities, vessel traffic, dredging and dredge material
disposal, oil and gas exploration and production, geologic surveys
(including seismic surveys), activities contributing to point-source
water pollution, power plant operations, liquefied natural gas
terminals, and desalinization plants. The FEA (IEc 2021) assumes that
future occurrences of these activities within or affecting critical
habitat for the whales will result in consultation. The identification
of these activities and the associated threats are further discussed in
the Final Biological Report (NMFS 2021a) and the FEA (IEc 2021).
In steps 3 and 4, the incremental administrative costs of including
analysis of Southern Resident killer whale coastal critical habitat in
future section 7 consultations were estimated. The occurrence of the
projects and activities identified in step 2 and the estimated number
and type of consultations were projected over space and time using the
best available information on planned projects, permitting schedules,
or average annual level of activities from NMFS' consultation history
for 2006-2016 and other information sources (e.g., USACE permit and
project data, and interviews with Federal action agencies). The
administrative costs of a given consultation vary depending on the type
(i.e., informal, formal, programmatic) and specifics of the project,
and it may not be possible to predict the level of effort required for
each future consultation. The analysis accordingly employed estimated
average incremental administrative costs per consultation, which were
based on the expected amount of time spent considering adverse
modification as part of future section 7 consultations.
As described in Chapter 2 of the FEA (IEc 2021), there are no
particular projects or activities for which NMFS considers it likely
that section 7 consultation on coastal critical habitat for the killer
whales would result in different conservation efforts than section 7
consultation without coastal critical habitat. This analysis refers to
``conservation efforts'' as a generic term for recommendations NMFS may
make to modify projects or activities for the benefit of Southern
Resident killer whales and/or their habitat, required actions to
minimize impacts, or other efforts that action agencies or other
entities may otherwise undertake to avoid adverse effects of projects
or activities on Southern Resident killer whales and/or their habitat.
We regularly consult on the types of activities relevant to this
analysis to consider the potential for jeopardy to the listed killer
whales, their listed prey, and other listed species with overlapping
ranges, as well as to consider the potential for adverse modification
to the critical habitat of other listed species, and we include
conservation efforts accordingly. This includes considerations of
critical habitat for other listed species which have similar essential
features as Southern Resident killer whale critical habitat. For
example, the Southern DPS of North American green sturgeon, for which
the essential features within nearshore coastal marine critical habitat
include, among others, a migratory corridor within marine habitat and
water quality with acceptably low levels of contaminants. We anticipate
that it is most likely that these baseline conservation efforts would
involve measures that would avoid adverse modification of Southern
Resident killer whale critical habitat because they directly or
indirectly address impacts to the essential features of the whales'
critical habitat (water quality, prey, and passage).
In steps 5 and 6, well-accepted discounting methods were used to
calculate the present value cost in each year of the analysis, summed
over time to calculate the total present value and annualized impact,
and then aggregated at the particular area level. As noted above, for
the economic analysis, ``particular areas'' were defined to be
equivalent to the six ``specific areas'' occupied by Southern Resident
killer whales off the coasts of Washington, Oregon, and California.
However, due to the difficulty in determining precise locations of
future consultations occurring in Areas 1 and 2 off the coast of
Washington (because assignment of the consultation to Area 1 or 2 would
require specific information about the activity such as its latitude/
longitude or depth), the FEA (IEc 2021) presents economic impacts
collectively for these two areas.
Additionally, administrative costs of consultations on upstream
activities were not assigned to a particular critical habitat area as
there is no information available to inform the connection between the
particular locations of upstream activities with the downstream effects
on particular critical habitat areas. Accordingly, the incremental
economic impacts associated with consultations on upstream activities
do not reflect the economic impact of designating any given area, but
rather the expanded critical habitat as a whole.
The FEA (IEc 2021) estimates the total present value of the
quantified incremental impacts to be approximately $710,000 over the
next 10 years, assuming a 7 percent discount rate. Total annualized
impacts are estimated to be $80,000. The increase in costs between the
DEA (IEc 2019) that accompanied the proposed rule and the FEA (IEc
2021) that supports this final rule reflects updates to the timeframe
of the analysis and the dollar year, as opposed to changes in the costs
of consultations. The evaluation of costs associated with each
particular area is complicated by the fact that many activities and
consultations span more than one area, and because costs to Areas 1 and
2 could not be estimated separately. However, annualized impacts from
projects occurring in only one area (or two in the case of Areas 1
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and 2) ranged from a low of $1,300 for area 6 to $10,000 for Areas 1/2.
Over 40 percent of estimated impacts occur upstream (or outside of) of
critical habitat areas. The largest share of estimated present value
economic impacts are associated with dredging and in-water construction
and ``other'' activities (see IEc 2021 for more details).
National Security Impacts
During preparations for the proposed revision to Southern Resident
killer whale critical habitat, we provided DOD (Navy, Army, and Air
Force) with information regarding the areas under consideration for
Southern Resident killer whale critical habitat, and requested they
identify any impacts to national security that might arise from the
proposed designation of critical habitat. In addition, we considered
information regarding potential national security impacts provided by
the USCG (Department of Homeland Security) in their response to our 90-
day finding on the petition to revise critical habitat.
The Army did not provide a response. The Air Force stated that it
had not identified any significant concerns with the proposed revision
of Southern Resident killer whale critical habitat to include coastal
waters along the U.S. West Coast. The Navy stated that it conducts
training and testing activities, collectively referred to as ``military
readiness activities,'' within the coastal areas being considered for
designation as critical habitat. Specifically, military readiness
activities occur in the offshore Pacific Northwest Ocean Surface/
Subsurface Operating Area (OPAREA), Warning Area 237 (W-237), and the
Olympic A and B Military Operation Areas (MOA), which are all
considered at-sea components of the Northwest Training Range Complex
(NWTRC), as well as in the QRS, which is a component of the Keyport
Range Complex. The Navy refers to all the at-sea areas used for
training and testing as the Northwest Training and Testing (NWTT) study
area. The Navy believes there would be national security impacts where
specific coastal areas 1 and 2 proposed for designation overlap with
the QRS. The Navy requested exclusion of the QRS (including its
associated surf zone off the coast of Pacific Beach, Washington) from
the proposed critical habitat based on national security impacts
arising from additional mitigation requirements that have the potential
to impact the effectiveness of ongoing and future testing activities
(NMFS 2021b). During the pre-publication inter-agency review process
for the proposed rule (84 FR 49214, September 19, 2019), the Navy also
requested exclusion of a 10-km (6.2-mi) buffer around the QRS. The Navy
stated that they used site-specific oceanographic conditions and the
best available science establishing fish injury thresholds (Popper et
al. 2014) to determine that sound and energy levels from the largest
explosives that could be used in the QRS may cause injuries to fish
(i.e., prey species) out to 10 km beyond the boundary of the QRS. If
the QRS alone were excluded (without the buffer), the largest
explosives in the QRS may affect the prey feature within proposed
critical habitat (in the buffer area). The Navy argued that there would
be national security impacts if NMFS required additional mitigation
that resulted in the Navy having to halt, reduce in scope, or
geographically/seasonally constrain testing activities to prevent
adverse effects or adverse modification of critical habitat.
The USCG also provided information on potential impacts to national
security and maritime safety. The USCG stated that expanded critical
habitat might impair its ability to safely conduct defense readiness
and additional missions if the designation results in restrictions to
the ability of USCG maritime assets to transit, deploy, train, and/or
conduct gunnery exercises within the critical habitat areas. These
additional missions include emergency response, search and rescue, law
enforcement, conservation activities, and training operations. With
respect to gunnery exercises, it noted that USCG Section/Station/
Maritime Force Protection Unit boats are limited to going a maximum of
10 to 50 mi (16-80.5 km) offshore depending on vessel type, and
requiring them to go over 50 mi would be unsafe and provide unrealistic
training/gunnery scenarios to effectively become proficient with
meeting mission objectives. In general, USCG Sector/Station assets
conduct gunnery exercises with small arms and ammunition, pistols, and
up to .50 caliber machine guns. Major afloat cutters conduct exercises
with small arms and ammunition, in addition to more sophisticated
systems (i.e., 25 millimeter (mm), 57 mm, and 76 mm guns, close-in
weapon systems), but rarely conduct exercises in the areas under
consideration for critical habitat, with the exception of the NWTRC.
Although we have not conducted a section 7 analysis on a particular
proposed action and we are not predetermining any future ESA
conclusions now, as a general matter, and based on the information
currently available, we consider it unlikely that the USCG's routine
operations in support of emergency response, homeland security, law
enforcement, and conservation affect the essential features of Southern
Resident killer whale critical habitat, and, as such, we do not expect
designation of critical habitat will have a national security impact on
these activities. Separately, we consider the USCG's concerns regarding
potential national security impacts to their defense readiness
activities to be generally overlapping with those of the Navy, given
the similarities in some of the USCG's activities (i.e., gunnery
exercises involving small- and large-caliber projectiles, similar to
the Navy's surface-to-surface gunnery exercises) and area of operations
(i.e., generally the NWTRC). The USCG does not use these types of
explosives in their defense readiness activities, and thus we consider
it unlikely that the USCG would have national security concerns beyond
those conveyed by the Navy.
As documented in our Final ESA Section 4(b)(2) Report (NMFS 2021b),
we assessed several factors to evaluate the potential impacts of
designating critical habitat within the QRS and a 10-km buffer around
it, such as the size and percentage of the QRS and buffer that would be
designated; the importance of the area to the Navy mission and military
readiness; the likelihood that Navy activities would destroy or
adversely modify critical habitat and that NMFS would require project
modification to avoid adverse effects or modification of critical
habitat, thus potentially negatively impacting the effectiveness of the
Navy's training and testing activities); the level of protection
provided to one or more essential features by existing DOD safeguards
(e.g., management or protection already in place); and the likelihood
that other Federal actions may occur in the site that would no longer
be subject to the critical habitat provision if the particular area
were excluded from the designation.
Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from other entities that interact with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian tribes and with respect
to Indian lands, tribal trust resources, and the exercise of tribal
rights. Pursuant to
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these authorities, lands have been retained by Indian tribes or have
been set aside for tribal use. These lands are managed by Indian tribes
in accordance with tribal goals and objectives within the framework of
applicable treaties and laws. Executive Order (E.O.) 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests.
There is a broad array of activities on Indian lands that may
trigger ESA section 7 consultations. Indian lands are those defined in
the Secretarial Order American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the ESA (June 5, 1997), including: (1)
Lands held in trust by the United States for the benefit of any Indian
tribe; (2) land held in trust by the United States for any Indian tribe
or individual subject to restrictions by the United States against
alienation; (3) fee lands, either within or outside the reservation
boundaries, owned by the tribal government; and (4) fee lands within
the reservation boundaries owned by individual Indians.
In developing the proposed rule, we reviewed maps and did not
identify any areas under consideration as coastal critical habitat that
overlap with Indian lands, because the shoreward extent of the areas
under consideration for designation is 20 ft (6.1 m) water depth. Based
on this, we preliminarily found that there were no Indian lands subject
to consideration for possible exclusion. However, our preliminary
assessment indicated that the following federally recognized tribes (83
FR 4235; January 30, 2018) have lands that may be in close proximity to
areas under consideration for designation as critical habitat for
Southern Resident killer whales, have usual and accustomed (U&A)
fishing areas that overlap with critical habitat areas, or may
otherwise be affected: Confederated Tribes of the Chehalis Reservation,
Hoh Indian Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian
Nation, and Shoalwater Bay Indian Tribe in Washington; Confederated
Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Confederated Tribes
of the Siletz Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae
Heights Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe,
Karuk Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation,
Wiyot Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California as a tribal
entity that may be affected by critical habitat designation.
We contacted each of these tribes to solicit comments regarding
Indian lands that may overlap and may warrant exclusion from critical
habitat for Southern Resident killer whales. We also sought information
from these tribes concerning other tribal activities that may be
affected in areas other than tribal lands (e.g., tribal fisheries in
usual and accustomed coastal marine areas).
We received responses from two tribes in Washington and California.
The tribes were primarily concerned with the potential impact of the
critical habitat designation on tribal fisheries, particularly within
U&A fishing areas located in coastal marine waters. As described in the
DEA and FEA (IEc 2019, 2021) while it is possible that the critical
habitat designation could result in recommendations for changes in
fishery management, we consider this unlikely, given the existing
consideration of fisheries' impacts on Southern Resident killer whales
and their prey (including ESA-listed salmon) in ESA section 7
consultations in the jeopardy analysis and the implementation of
management strategies and actions for the conservation and recovery of
these species (IEc 2019, 2021). However, we will continue to coordinate
and consult with potentially affected tribes throughout the rulemaking
process.
Exclusion of Areas Under Section 4(b)(2) of the ESA
As stated previously, the Secretary may exclude an area from
designation if he determines the benefits of exclusion outweigh the
benefits of designation based on the best available scientific and
commercial data. This discretion is limited, however, in that the
Secretary may not exclude an area from designation if exclusion will
result in the extinction of the species (ESA section 4(b)(2)).
We decided to exercise the discretion delegated to us by the
Secretary to conduct an exclusion analysis and balance the benefits of
designation against the benefits of exclusion. Benefits of critical
habitat designation are those conservation benefits to the species,
while benefits of exclusion result from avoiding the impacts of
designation identified above. Below we describe the benefits of
designation, then further consider and weigh the benefits of
designation and exclusion based on economic and national security
impacts. (As discussed above, we preliminarily found that there were no
Indian lands subject to consideration for possible exclusion). We have
broad discretion as to which factors to consider as benefits of
designation and benefits of exclusion, and what weight to assign to
each factor--nothing in the ESA, its implementing regulations, or our
Policy Regarding Implementation of Section 4(b)(2) of the ESA
(``4(b)(2) Policy'') limits this discretion (50 CFR 424.19; 81 FR 7226,
February 11, 2016). We also relied on a qualitative cost-benefit
analysis, as described in Office of Management and Budget (OMB)
Circular A-4.
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7 of the ESA, requiring all Federal agencies to ensure their
actions are not likely to destroy or adversely modify designated
critical habitat. This is in addition to the requirement that all
Federal agencies ensure their actions are not likely to jeopardize the
continued existence of the species. The revision to the critical
habitat designation is also expected to provide benefits by informing
the entities engaged in section 7 consultations and the general public
about the status of Southern Resident killer whales, including the
coastal areas and features (or habitat) important to whales'
conservation.
Other forms of benefits that may be attributed to the conservation
and recovery of Southern Resident killer whales (although not
specifically attributed to the designation of critical habitat),
include use benefits (e.g., for wildlife viewing), non-use or passive
use benefits (e.g., existence, option, and bequest values), and
ancillary ecosystem service benefits (e.g., water quality improvements
and enhanced habitat conditions for other marine and coastal species).
Some species, including Southern Resident killer whales, also have
significant spiritual and cultural value to particular communities,
such as tribes. Such values are generally not expressed in monetary
terms.
These benefits are not directly comparable to the costs of
designation for purposes of conducting the section 4(b)(2) analysis.
Ideally, benefits and costs should be compared on equal terms in the
same units. However, there is insufficient information regarding the
extent of the benefits and the associated values to monetize all of
these benefits. Because we could not quantify or monetize all of the
benefits of revising the critical habitat designation for Southern
Resident killer whale discussed above, we qualitatively described the
conservation value of the areas to the DPS.
As discussed in Appendix B of the Final ESA Section 4(b)(2) Report
(NMFS 2021b), we considered categories of information to characterize
Southern
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Resident killer whales' relative use of the particular areas and the
importance of physical and biological features in the areas. However,
gaps in or limitations of existing data made an evaluation across all
of the areas using any sort of quantitative scoring system challenging.
For example, the proportion of prey samples collected from each area
might be used to characterize the areas' relative importance for
foraging, where a higher proportion of samples might indicate greater
foraging or prey resources. However, nearly all (93 percent) of the
prey samples were collected during field efforts directed by the
locations of satellite-tagged whales, and satellite-tagged whales did
not go into Area 6, so this metric would underestimate the conservation
value of Area 6. (Predation has been observed but not sampled in Area
6; Black et al. 2001). Any spatial bias in NMFS' and partners' ability
to conduct on-water response in particular locations to collect prey
samples would also limit the usefulness of this factor for comparing
relative importance of the critical habitat areas. Another potential
metric we considered was the proportion of confirmed opportunistic
sightings of Southern Resident killer whales observed in the area, or
number of sightings per unit area. However, while opportunistic
sightings data provide information on when and where whales occur along
the coast, they are less useful for informing a relative ranking of the
whales' use of the specific areas due to their spatial bias (e.g.,
sightings may be influenced by locations of population centers or whale
watching operations). Therefore, we determined that the most
appropriate approach was to qualitatively assess the conservation value
of each area using the available data, mindful of the spatial and
temporal gaps and potential biases.
Based on the available information on the whales' use of the areas
(and considering gaps in information), and the physical and biological
features essential to the whales' conservation, we considered the
conservation value of each coastal area to be high. However, we
considered the value of Areas 1 and 2 to be very high relative to the
other coastal areas, given the whales' particularly high use of
portions of the areas, as indicated by models of satellite tag data
(they are the only coastal critical habitat areas with usage in some
locations that is more than two and three standard deviations above the
mean), acoustic data indicating higher rates of detections than would
be expected based on monitoring effort (Hanson et al. 2013), the
documented use by all three pods, year-round use of the areas, and
observations of foraging with a substantial number of prey samples
collected in portions of the areas.
Weighing Economic Impacts
The FEA (IEc 2021) concluded that costs attributed to the revision
of the Southern Resident killer whale critical habitat designation are
largely administrative in nature and that a majority of those costs are
borne by Federal agencies. Only a small cost of consultation (total
annualized impacts of $9,000, discounted at 7 percent) are estimated to
be borne by a small number (1-8) of non-Federal small entities
(businesses or governments).
In accordance with section 4(b)(2) of the ESA, its implementing
regulations (50 CFR 424.19) and the 4(b)(2) Policy (81 FR 7226;
February 11, 2016), in evaluating the exclusion of areas based on
probable economic impacts, we considered the nature of those impacts
and not a particular threshold level. Additionally, we considered the
following factors:
(1) Section 2 of the ESA provides that a purpose of the act is to
provide a means whereby the ecosystems upon which endangered species
and threatened species depend may be conserved.
(2) In listing Southern Resident killer whales under the ESA, we
concluded that the current and threatened destruction or adverse
modification of the species' habitat is likely contributing to
fluctuations in abundance and exacerbating the risk of extinction
naturally faced by a small population (70 FR 69903, November 18, 2005).
We identified contaminants, vessel traffic, and changes in prey
availability as factors that have modified the whales' habitat and
considered them to be threats to the species.
(3) As described above, the six particular areas under
consideration for critical habitat designation are all of high or very
high conservation value.
(4) The economic impacts to Federal agencies and non-Federal
entities of designating each of the six particular areas are small (the
largest annualized impacts are $10,000 in Areas 1 and 2 combined), as
is the annualized economic impact of designating the entire area
($80,000). The potential economic impacts borne by non-Federal entities
of designating all six areas are even smaller (total annualized impacts
of $9,000 over the next 10 years, discounted at 7 percent), with one to
eight non-Federal entities expected to be affected. This reflects
approximately six consultations per year that may involve non-Federal
entities, for example, businesses engaged coastal and in-water
construction activities, renewable energy developments, or seismic
surveys.
For these reasons, we conclude that the economic benefit of
excluding any of the particular areas does not outweigh the
conservation benefit of designation. Therefore, none of the areas are
excluded based on economic impacts.
Weighing Impacts to National Security and Exclusion
As described above, we consulted with the DOD regarding the
activities taking place at sites managed by DOD and the potential
impact of designating critical habitat at these sites. A reply from the
Air Force (AF) stated: ``At this time the AF has not identified any
significant concerns with the proposed addition of Southern Resident
killer whale critical habitat to coastal waters along the U.S. West
Coast as depicted on the provided map.'' The Navy stated that it
believes there would be national security impacts where critical
habitat coastal areas 1 and 2 overlap the QRS, including its associated
surf zone off the coast of Pacific Beach, Washington, and a 10-km
buffer around it, and requested exclusion of this particular area from
critical habitat. The Navy provided information on testing activities
proposed in the QRS beyond 2020 and into the foreseeable future, and
identified national security concerns regarding potential impacts to
their national mission and ongoing and future Navy testing activities
if critical habitat were designated there or within a 10-km buffer
around the QRS.
We weighed the conservation benefits of designation to Southern
Resident killer whales against the benefits of exclusion for the
combined area of the QRS and a 10-km buffer around it. We considered
various factors relevant to assessing the benefits of exclusion
including:
(1) The size of the DOD site, the percentage of the DOD site that
would be designated (because only a portion of the DOD site is within
critical habitat), and the percentage of the proposed specific area(s)
that overlaps with the DOD site (because the DOD site overlaps with
only a portion of the critical habitat area(s));
(2) The importance of the area to the Navy's national mission
(e.g., frequency/intensity of use, complexity of Navy actions within
it, and significance and uniqueness of the site to the overall Navy
mission);
(3) The likelihood of an ESA section 7 consultation with the DOD in
this site;
[[Page 41689]]
(4) The likelihood that DOD activities would destroy or adversely
modify critical habitat; based on the DOD's activities at the site, and
that NMFS would require project modifications to reduce or avoid these
impacts;
(5) The level of protection provided to one or more essential
feature by existing DOD safeguards (e.g., management or protection
already in place); and
(6) The likelihood that other Federal actions may occur in the site
that would no longer be subject to the critical habitat provision if
the particular area were excluded from the designation.
Depending on available information, each of these factors may weigh
either in favor of exclusion of the area or in favor of designation of
the area. We give great weight to the national security and defense
missions (81 FR 7226; February 11, 2016). We weighed this information
against the benefits of designating the site, which was based on the
conservation value rating for the specific area(s) overlapping the DOD
site, as well as more specific information regarding Southern Resident
killer whale use of the DOD site. As documented in the Draft ESA
Section 4(b)(2) Report (NMFS 2019b), based on the great weight afforded
military impacts, the unique training in support of military readiness
that occurs within the QRS, and the potential delay in critical
missions in order to complete adverse modification analyses, in the
proposed rule (84 FR 49214, September 19, 2019) we found that the
national security impacts tip the scale and outweigh the limited impact
to conservation values in just over one-fourth of the identified
critical habitat Areas 1 and 2 where those areas overlap with the QRS
and a 10-km buffer around it. We determined that the benefit to
national security of excluding this particular area outweighed the
conservation benefit of designation, and exclusion of the area would
not result in extinction of the species (DPS). Therefore, we proposed
excluding the QRS and a 10-km buffer around it from the critical
habitat designation. The total area proposed for exclusion was 1,687.9
mi\2\ (4,371.5 km\2\) or 9.7 percent of potential coastal critical
habitat.
As described above, we received many public comments on the
proposed rule (84 FR 49214, September 19, 2019) opposing the exclusion
because it would allow the Navy to conduct activities such as sonar and
testing of explosives in the excluded area without considering effects
to critical habitat. Comments also noted that part of the QRS overlaps
with the OCNMS.
As discussed in the Final ESA Section 4(b)(2) Report (NMFS 2021b),
to weigh the national security impacts against conservation benefits of
a potential critical habitat designation, we considered the size of the
requested exclusion and the amount of overlap with the specific
critical habitat area; the relative conservation value of the specific
area for the Southern Resident killer whale; the importance of the site
to the Navy mission and military readiness; the likelihood that the
Navy's activities would destroy or adversely modify critical habitat,
and the likelihood that NMFS would require project modifications to
reduce or avoid these impacts; and, the likelihood that other Federal
actions may occur in the site that would no longer be subject to the
critical habitat provision if the particular area were excluded from
the designation. In response to the public comments, we reconsidered
these factors, information provided by the Navy, and requested
additional information from the Navy regarding its activities in the
portion of the QRS that also falls within the OCNMS.
The QRS and proposed 10-km buffer comprise about 39 percent of Area
1 (Coastal Washington/Northern Oregon Inshore) and about 25 percent of
Area 2 (Coastal Washington/Northern Oregon Offshore), and about 28
percent of Areas 1 and 2 combined, but a very small portion of the
total critical habitat designations for the Southern Resident killer
whale (8.5 percent). The QRS and associated buffer also have a
significant degree of overlap with the OCNMS, where certain activities
are prohibited or not authorized, including oil, gas, or mineral
exploration, development, or production; discharging or depositing any
material or other matter; drilling into, dredging, or otherwise
altering the seabed, with some exceptions (15 CFR 922.152). Because of
these prohibitions, the likelihood of other Federal activities being
proposed in this area of the QRS may be limited.
In support of its request for exclusion of this particular area,
the Navy pointed to the extensive range of planned activities, which
are described in its Final Northwest Training and Testing (NWTT)
Supplemental Environmental Impact Statement (SEIS) published on
September 18, 2020, and stated that any additional, future
modifications to these activities to minimize impacts on Southern
Resident killer whale critical habitat would impact the Navy's ability
to meet mission requirements. The Navy pointed to the use of
explosives, in particular, as being likely to have adverse effects on
killer whale prey, although not likely at the population level for
salmon prey. In its initial request, dated December 5, 2018, the Navy
stated that if additional mitigation requirements result in having to
halt, reduce in scope, or geographically or seasonally constrain
testing activities to prevent adverse effects to critical habitat, this
would in turn impact their ability to test and field new systems and
platforms. To avoid potential, additional, spatial restrictions on
their activities within the QRS, the Navy also requested exclusion of
an additional 10-km buffer around the QRS from the critical habitat
designation. The Navy determined the size for this buffer using sound
attenuation modeling to calculate the farthest distance at which fish
would be expected to be injured from the largest explosive the Navy can
reasonably foresee testing in the QRS; and, in subsequent
communications, the Navy further clarified that the size of the buffer
also incorporated uncertainty for updates in resource-related science,
changes in oceanographic conditions that could reduce attenuation, and
the evolution of military technologies that may behave differently in
the environment. This buffer was then added to the QRS boundaries that
overlapped with the Southern Resident killer whale critical habitat.
We continue to find that the Navy has provided a reasonably
specific justification to support the requested exclusion of the QRS,
and consistent with our Section 4(b)(2) Policy (81 FR 7226, February
11, 2016), we gave great weight to these concerns when analyzing the
benefits of exclusion. Our consideration of the multiple factors
discussed, coupled with the potential delay in critical missions in
order to complete adverse modification analyses, caused us to continue
to find that the benefits of excluding the QRS due to national security
impacts outweigh the benefits of designating this portion of Areas 1
and 2 as critical habitat for the Southern Resident killer whales.
However, we are modifying our proposed exclusion of the buffer area.
Specifically, we are not excluding a portion of the 10 km buffer area
around the northeast corner of the QRS, extending along the East side
of the QRS, where it overlaps with the OCNMS. As detailed in the
Section 4(b)(2) Report (NMFS 2021b), we concluded the benefits of
designating critical habitat for the Southern Resident killer whales
within this portion of the buffer are not outweighed by national
security impacts of including that portion at this time.
The Navy does not currently use or currently plan to use explosives
in the northeast corner of the QRS extending along the East side of the
QRS, where it overlaps with the OCNMS; therefore,
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potential impacts to the Southern Resident killer whale critical
habitat are unlikely to extend into the OCNMS. The Navy provided
additional information to NMFS clarifying the impact to national
security should the full 10 km buffer around the QRS not be excluded
from designation as critical habitat. The Navy noted that the current
limitation on conducting underwater explosives in this portion of the
QRS is based on mitigation measures the Navy proposed in its NWTT SEIS
(September 2020) and associated ESA and MMPA compliance documentation,
which preclude the use of all underwater explosives for training and
testing within 50 nmi from shore, with the exception of mine
countermeasures neutralization activities which occur in the QRS where
it does not overlap with the OCNMS. The Navy concluded it was
practicable to implement this restriction; however, all Navy mitigation
measures allow for deviations (in consultation with NMFS) if driven by
new and immediate national security requirements. Further, the Navy
reviews its mitigation measures annually and can modify those
mitigation measures as driven by evolving military readiness
requirements, also in consultation with NMFS. The Navy stated that
because techniques and tactics needed for national security can rapidly
evolve, it is possible that modifications to current activities and the
development of new technologies will require testing in areas that may
not be currently utilized for underwater explosives.
Furthermore, the portion of the buffer that extends beyond 10 km
into the OCNMS, which we are not excluding, comprises an area of very
high conservation value to the whales. As described in the Final ESA
section 4(b)(2) Report, we considered the conservation value of Areas 1
and 2 to be very high relative to the other coastal areas, given the
whales' high use of portions of the areas particularly for foraging,
the documented use by all three pods, and year-round use of the areas
(NMFS 2021b). Not excluding this portion of the buffer also creates a
corridor of critical habitat between the coastline and the eastern
boundary of the QRS for most of the length of the QRS exclusion, which
supports whale passage between critical habitat areas to the north and
south of the QRS exclusion. Given the very high conservation value of
this area for the whales, though there are national security impacts as
described by the Navy, we found that the benefits of excluding this
portion of the buffer due to national security impacts did not outweigh
the conservation benefits of designating this area (e.g., see Appendix
A Figure 4, Section 4(b)(2) Report, NMFS 2021b) as critical habitat for
the Southern Resident killer whales. NMFS notes that should the Navy's
requirements change in such a manner that materially affects how it
will conduct activities within the QRS, the Navy will provide NMFS with
an updated explanation of impacts to national security and NMFS will
reconsider whether those impacts outweigh the benefits of retaining a
portion of the 10 km buffer areas as critical habitat.
With this reduction in extent of the 10 km buffer within OCNMS, the
total area of exclusion in the final rule is 1,400.4 mi\2\ (3,627
km\2\) or 8.1 percent of potential coastal critical habitat. This final
excluded area comprises 24.4 percent and 22.7 percent of areas 1 and 2
each, respectively, but generally not in portions of areas 1 and 2 that
have the highest use by Southern Resident killer whales.
Final Revised Critical Habitat Designation
We are designating approximately 15,910 mi\2\ (41,207 km\2\) of
marine habitat within the area occupied by Southern Resident killer
whales along the coasts of Washington, Oregon, and California. Combined
with the currently designated critical habitat in inland waters of
Washington (2,560 mi\2\ (6,630 km\2\)), the total designation comprises
approximately 18,470 mi\2\ (47,837 km\2\). In both the currently
designated and new critical habitat, areas with water less than 20 ft
(6.1 m) deep are not included as critical habitat. As described in the
preamble to the final rule designating critical habitat in inland
waters (71 FR 69054; November 29, 2006), due to a lack of bathymetry
data, we were not able to subtract the shallow areas from the estimate
of the inland critical habitat area, so the estimated area of this
portion of the critical habitat is an overestimate. However, high-
quality shoreline and bathymetry data were available for the outer
coastal areas, so we were able to interpolate a 20-ft depth contour as
the inshore boundary and include only the designated areas in the
coastal area calculations. However, the coastal shoreline product we
used to delineate the coastal areas, NOAA's Continually Updated
Shoreline Product, uses mean high water as the vertical datum (the
surface of zero elevation to which heights are referenced), so the
inshore boundary of coastal critical habitat is 20 ft of water depth
relative to mean high water and, therefore, our estimates of area are
more accurate. This is in contrast to the inshore boundary for critical
habitat in inland waters, which uses 20 ft water depth relative to
extreme high water, which overestimates total area.
The designated areas are occupied and contain physical or
biological features that are essential to the conservation of the
species and that may require special management considerations or
protection. The Navy's QRS and a modified 10-km buffer around it is not
included in the designation (and is not included in the area
calculations above) because we determined the benefits to national
security of exclusion (that is, avoiding the impact that would result
from designation) outweigh the benefits of designation. We determined
that the economic benefits of excluding any of the areas do not
outweigh the benefits of designation. Therefore, we are not excluding
any areas based on economic impacts. Section 4(b)(2) does not allow the
agency to exclude areas if exclusion will result in extinction of the
species. We are excluding only a small percentage of the whales'
habitat (8.1 percent of coastal habitat; 7.0 percent of coastal and
inland habitat combined) because of impacts to national security. The
exclusion does represent a larger portion of the two specific critical
habitat areas off the coast of Washington (around 23-24 percent of each
of these two coastal areas), which are considered high-use and
important foraging areas for Southern Resident killer whales. But, the
highest use areas for foraging are just south of the QRS, and only a
small portion of the highest use areas are within the 10-km buffer or
the QRS. Given the small percentage of total coastal habitat and that
most of the highest use by Southern Resident of Washington areas is not
in the QRS, we conclude that the exclusion of these areas will not
result in extinction of the Southern Resident killer whale DPS. No
unoccupied areas are included in this designation.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded or carried out by
the agency (agency action) is not likely to jeopardize the continued
existence of any threatened or endangered species or destroy or
adversely modify designated critical habitat. When a species is listed
or critical habitat is designated, Federal agencies must consult with
us on any agency action that may affect the listed species or its
critical habitat. During the consultation, we evaluate the agency
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action to determine whether the action may adversely affect listed
species or critical habitat and issue our findings in a biological
opinion. If we conclude in the biological opinion that the agency
action would likely result in the destruction or adverse modification
of critical habitat, we would also recommend any reasonable and prudent
alternatives to the action. Reasonable and prudent alternatives are
defined in 50 CFR 402.02 as alternative actions identified during
formal consultation that can be implemented in a manner consistent with
the intended purpose of the action, that are consistent with the scope
of the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that would avoid the
destruction or adverse modification of critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances
where: (1) Critical habitat is subsequently designated; or (2) new
information or changes to the action may result in effects to critical
habitat not previously considered in the biological opinion.
Consequently, some Federal agencies may request reinitiation of
consultation with NMFS on actions for which formal consultation has
been completed, if those actions may affect designated critical
habitat. Activities subject to the ESA section 7 consultation process
include activities on Federal lands, as well as activities requiring a
permit or other authorization from a Federal agency (e.g., a section
10(a)(1)(B) permit from NMFS), or some other Federal action, including
funding (e.g., Federal Highway Administration (FHA) or Federal
Emergency Management Agency (FEMA) funding). ESA section 7 consultation
would not be required for Federal actions that do not affect listed
species or critical habitat, and would not be required for actions on
non-Federal and private lands that are not carried out, funded, or
authorized by a Federal agency.
Activities That May Be Affected
ESA section 4(b)(8) requires, to the maximum extent practicable, in
any regulation to designate critical habitat, an evaluation and brief
description of those activities (whether public or private) that may
adversely modify such habitat or that may be affected by such
designation. A wide variety of activities may affect Southern Resident
killer whale critical habitat and may be subject to the ESA section 7
consultation processes when carried out, funded, or authorized by a
Federal agency. These include: (1) Salmon fisheries and other fisheries
that have incidental bycatch of salmon; (2) salmon hatcheries; (3)
offshore aquaculture/mariculture; (4) alternative energy development;
(5) oil spills and response; (6) military activities; (7) vessel
traffic; (8) dredging and dredge material disposal; (9) oil and gas
exploration and production; (10) mineral mining (including sand and
gravel mining); (11) geologic surveys (including seismic surveys); and
(12) activities occurring adjacent to or upstream of critical habitat
that may affect essential features, that we refer to as ``upstream''
activities (including activities contributing to point-source water
pollution, power plant operations, liquefied natural gas terminals,
desalinization plants). Section 7 consultations must be based on the
best scientific and commercial information available when they are
undertaken, and outcomes are case-specific. Inclusion (or exclusion)
from this list, therefore, does not predetermine the occurrence or
outcome of any consultation.
Private or non-Federal entities may also be affected by this
critical habitat designation if a Federal permit is required, Federal
funding is received, or the entity is involved in or receives benefits
from a Federal project. These activities would need to be evaluated
with respect to their potential to destroy or adversely modify Southern
Resident killer whale critical habitat. For ongoing activities, this
designation of critical habitat may trigger reinitiation of past
consultations. Although we cannot predetermine the outcome of section 7
consultations, we do not anticipate at this time that the outcome of
reinitiated consultations would likely require additional conservation
efforts, because effects to Southern Resident killer whales and their
prey species would in most instances have been assessed in the original
consultation. We are committed to working closely with other Federal
agencies to conduct any reinitiated consultations in an efficient and
streamlined manner to the maximum extent possible and consistent with
our statutory and regulatory requirements. Questions regarding whether
specific activities would constitute destruction or adverse
modification of critical habitat should be directed to NMFS (see
ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Technical Changes to the Southern Resident Killer Whale Critical
Habitat Regulations
In addition to designating coastal critical habitat, we are making
three technical changes to the existing Southern Resident killer whale
critical habitat regulations in 50 CFR 226.206. First, the introductory
paragraph of the existing regulations states that the textual
descriptions of critical habitat are the definitive source for
determining the critical habitat boundaries and the overview map is
provided for general guidance purposes only. In 2012, NMFS and the
USFWS revised the ESA implementing regulations to specify that the
boundaries of critical habitat as mapped or otherwise described in the
regulations will be the official delineation of the designation (77 FR
25611; May 1, 2012). To comply with this revision, we are deleting the
second and third sentences of the introductory paragraph of 50 CFR
226.206, and replacing them with the following: The maps, clarified by
the textual descriptions in this section, are the definitive source for
determining the critical habitat boundaries.
Second, the existing regulations specify primary constituent
elements (PCE) essential for conservation of Southern Resident killer
whales. In 2016, NMFS and the USFWS revised the ESA implementing
regulations to remove the term PCE and replaced it with the statutory
term ``physical or biological features'' (81 FR 7226; February 11,
2016). These are also referred to as ``essential features.'' To comply
with this revision, we are revising 50 CFR 226.206(c) by replacing the
term PCE with the term ``essential features.''
Third, we are moving the map(s) to the end of the section to
accommodate the additional text necessary to describe the newly added
critical habitat areas.
References Cited
A complete list of all references cited in this final rule can be
found on our website at www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html or
the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041, and is available upon request
from the NMFS West Coast Region office in Seattle, Washington (see
ADDRESSES).
Classification
Executive Order 12630, Takings
Under E.O. 12630, Federal agencies must consider the effects of
their actions
[[Page 41692]]
on constitutionally protected private property rights and avoid
unnecessary takings of property. A taking of property includes actions
that result in physical invasion or occupancy of private property, and
regulations imposed on private property that substantially affect its
value or use. In accordance with E.O. 12630, the final rule does not
have significant takings implications. A takings implication assessment
is not required. The designation of critical habitat affects only
Federal agency actions (i.e., those actions authorized, funded, or
carried out by Federal agencies). Therefore, the critical habitat
designation does not affect landowner actions that do not require
Federal funding or permits. This designation would not increase or
decrease the current restrictions on private property concerning take
of Southern Resident killer whales, nor do we expect the final critical
habitat designation to impose substantial additional burdens on land
use or substantially affect property values. Additionally, a final
critical habitat designation would not preclude the development of
Habitat Conservation Plans and issuance of incidental take permits for
non-Federal actions. Owners of areas included within the critical
habitat designation would continue to have the opportunity to use their
property in ways consistent with the survival of listed Southern
Resident killer whales.
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
final rule is significant for purposes of E.O. 12866 review. The FEA
(IEc 2021) and Final ESA Section 4(b)(2) Report (NMFS 2021b) have been
prepared to support the exclusion process under section 4(b)(2) of the
ESA and our consideration of alternatives to this rulemaking as
required under E.O. 12866. To review these documents, see the ADDRESSES
section above.
Executive Order 12988, Civil Justice Reform
In accordance with E.O. 12988, we have determined that this rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of the E.O. We are designating critical
habitat in accordance with the provisions of the ESA. This rule uses
standard property descriptions and identifies the essential features
within the designated areas to assist the public in understanding the
habitat needs of Southern Resident killer whales.
Executive Order 13132, Federalism
The E.O. on Federalism, Executive Order 13132, requires agencies to
take into account any federalism impacts of regulations under
development. It includes specific consultation directives for
situations in which a regulation may preempt state law or impose
substantial direct compliance costs on state and local governments
(unless required by statute). Pursuant to E.O. 13132, we determined
that this final rule does not have significant federalism effects and
that a federalism assessment is not required. In keeping with
Department of Commerce policies and consistent with ESA regulations at
50 CFR 424.16(c)(1)(ii), we requested information for this rule from
the appropriate state resources agencies in Washington, Oregon, and
California. The designation may have some benefit to state and local
resource agencies in that the rule more clearly defines the physical
and biological features essential to the conservation of the species
and the coastal areas in which those features are found. While this
designation would not alter where and what non-federally sponsored
activities may occur, it may assist local governments in long-range
planning (rather than waiting for case-by-case ESA section 7
consultations to occur).
Where state and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests only on the Federal agency.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
The long-standing and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and with respect
to Indian lands, tribal trust resources, and the exercise of tribal
rights. Pursuant to these authorities, lands have been retained by
Indian Tribes or have been set aside for tribal use. These lands are
managed by Indian Tribes in accordance with tribal goals and objectives
within the framework of applicable treaties and laws. E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests.
There is a broad array of activities on Indian lands that may
trigger ESA section 7 consultations. In developing this rule to revise
Southern Resident killer whale critical habitat, we reviewed maps and
did not identify any areas under consideration for critical habitat
along the coast that overlap with Indian lands, because the shoreward
extent of the areas under consideration for designation is 6.1 m (20
ft) water depth. Based on this, we preliminarily found that there were
no Indian lands subject to consideration for possible exclusion.
However, as discussed above, our preliminary assessment indicated that
some federally-recognized tribes (83 FR 4235; January 30, 2018) have
lands that may be in close proximity to areas under consideration for
designation as critical habitat for Southern Resident killer whales,
have usual and accustomed fishing areas that overlap with critical
habitat areas, or may otherwise be affected. These include:
Confederated Tribes of the Chehalis Reservation, Hoh Indian Tribe,
Makah Indian Tribe, Quileute Tribe, Quinault Indian Nation, and
Shoalwater Bay Indian Tribe in Washington; Confederated Tribes of Coos,
Lower Umpqua, and Siuslaw Indians, Confederated Tribes of the Siletz
Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae Heights
Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, Karuk
Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation, Wiyot
Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California as a tribal
entity that may be affected by critical habitat designation.
As discussed previously we contacted each of these tribes to
solicit comments regarding Indian lands that may overlap and may
warrant exclusion from critical habitat for Southern Resident killer
whales. We also sought information from these tribes concerning other
tribal activities that may be affected in areas other than tribal lands
(e.g., tribal fisheries in usual and accustomed coastal marine areas).
We will continue to consult with affected tribes regarding
[[Page 41693]]
the implementation of this critical habitat designation.
Executive Order 13211, Energy Supply, Distribution, and Use
E.O. 13211 requires agencies to prepare a Statement of Energy
Effects when undertaking a ``significant energy action.'' According to
Executive Order 13211, ``significant energy action'' means any action
by an agency that is expected to lead to the promulgation of a final
rule or regulation that is a significant regulatory action under
Executive Order 12866 and is likely to have a significant adverse
effect on the supply, distribution, or use of energy. We have
considered the potential impacts of this action on the supply,
distribution, or use of energy and find the revision to the designation
of critical habitat will not have impacts that exceed the thresholds
identified in OMB's memorandum M-01-27, Guidance for Implementing E.O.
13211 (See IEc 2021).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). We prepared a final
regulatory flexibility analysis (FRFA), which is part of the FEA
(Chapter 5, IEc 2021). This document is available upon request and
online (see ADDRESSES). Results of the FRFA are summarized below.
NMFS listed the Southern Resident killer whale Distinct Population
Segment as endangered under the ESA on November 18, 2005 (70 FR 69903),
and on November 29, 2006, issued a final rule designating critical
habitat for the whales in inland waters of Washington (71 FR 69054).
NMFS is now expanding the critical habitat designation by adding waters
along the Pacific Coast between Cape Flattery, Washington, and Point
Sur, California. The objective of the rule is to utilize the best
scientific and commercial information available to expand critical
habitat for the Southern Resident killer whale to best meet the
conservation needs of the species in order to meet recovery goals.
Section 4(a)(3)(A)(ii) of the ESA allows NMFS to revise designations to
critical habitat as appropriate and is the legal basis for this rule.
This final rule will not impose any recordkeeping or reporting
requirements on small entities and will not duplicate, overlap, or
conflict with any other laws or regulations.
The expansion of critical habitat for the Southern Resident killer
whales is expected to have a limited economic impact, on the order of
$80,000 annualized over 10 years. The nature of these costs are
administrative efforts to consider potential for adverse modification
part of future ESA section 7 consultations. Primarily, consultations
are between NMFS and Federal action agencies to evaluate the potential
for projects and activities to result in adverse modification of
critical habitat. Therefore, most incremental impacts are borne by NMFS
and other Federal agencies and not by private entities or small
governmental jurisdictions. However, some consultations may include
third parties (e.g., project proponents or landowners) that may be
small entities. These third parties may bear some portion of the
administrative consultation costs.
Of the activities for which future consultations are forecast and
expected to result in incremental economic impacts due to the expanded
critical habitat designation, only a subset involve third parties that
may be small entities. Specifically, consultations on renewable energy
development, dredging and in-water construction, and seismic surveying
may involve small entities, including small businesses or governments.
The analysis anticipates approximately six consultations on in-water
and coastal construction activities per year, 0.5 consultations on
renewable energy development, and 0.1 consultations on seismic surveys.
While the activity forecast includes less than one consultation
annually on renewable energy development and seismic surveying, the
FRFA evaluates the impacts associated with one consultation on each of
these activities to reflect a high-end estimate for a single year.
Administrative costs of consultations on fisheries, military
activities, and hatchery operations are unlikely to involve third
parties beyond NMFS and the Federal action agency.
Because consultations on fisheries activities are conducted on
fishery management plans, rather than on individual fishing activities
or permits, individual fishermen and fishing entities that would be
considered small businesses are not parities to those consultations. As
such, they would only incur costs if additional conservation efforts
resulted from this critical habitat designation. NMFS was not able to
envision a scenario in which the expansion of critical habitat for
Southern Resident killer whales would result in changes to management
of salmon fisheries and potential associated costs to small fishing
businesses. This conclusion was due to a number of factors including
strong existing baseline protections stemming from the ESA listing and
consequent need for recovery of many salmon populations themselves,
existing consideration of fishery impacts and prey availability
relative to the potential for jeopardy to Southern Resident killer
whales even absent critical habitat, as well as NMFS's experience over
the past 15 years implementing the inland waters critical habitat for
Southern Resident killer whales, which has not resulted in fishery
management changes beyond those already considered as a result of ESA
consultation on prey effects relative to jeopardy. Costs of this rule
associated with fishing activities would be limited to administrative
costs for future consultations, which are borne by NMFS as both the
consulting and action agency, and do not include third parties.
For the consultations that may involve third parties, it is not
known whether the third parties bearing administrative costs are likely
to be large or small entities. The analysis conservatively assumes all
third parties involved in these consultations are small entities. The
number of small entities bearing these incremental administrative costs
in a given year is uncertain. To provide information on the range of
potential entities affected and the potential costs borne by these
entities, the analysis presents two scenarios reflecting the extremes:
(1) Scenario 1 identifies the maximum number of future
consultations involving small entities and assumes that each
consultation involves one unique small entity. We estimate the maximum
number of future consultations, and accordingly number of potentially
affected entities, to be eight. This represents the total number of
annual consultations that occur across all critical habitat units
involved with in-water construction, renewable energy development, and
seismic surveying. Scenario 1 accordingly provides a high-end estimate
of the number of potentially affected small entities (assuming each
consultation involves a unique third party and all third parties are
small entities), and a low-end estimate of the potential effect in
terms of the economic effects (i.e., percent of annual revenues) for
each entity (total third party costs of the consultations are divided
across the high-end number of small entities). This
[[Page 41694]]
scenario may overstate the number of small entities likely to be
affected by the rule and may understate the potential impact per
entity. Under Scenario 1, we estimate that eight small entities have
the potential to bear an impact of $1,000 to $1,800 per entity.
(2) Scenario 2 assumes all future costs to an industry are borne by
a single small entity within that industry. This scenario may
understate the number of small entities affected and overstate the per-
entity impacts. As such, this scenario arrives at a low-end estimate of
potentially affected entities and a high-end estimate of potential
economic cost effects. Under this scenario, one small entity in the in-
water construction industry would bear costs of $6,000.
Because the analysis assumes a maximum of one consultation on both
renewable energy development and seismic surveying in a single year,
the cost estimates for these activities are identical under both
scenarios ($1,200 for one small entity in the renewable energy
development industry and $1,800 for one small entity in the seismic
survey industry). However, for in-water construction and dredging,
these scenarios reflect a range of potentially affected entities and
associated revenue effects. The actual number of small in-water
construction entities affected, and the per-entity revenue effects are
likely to be somewhere in the middle. In other words, some subset
greater than one and less than 6 of the in-water construction small
entities may participate in the section 7 consultations and bear the
associated impacts.
Under both scenarios, potential costs borne by small entities are
expected to be minor. Ultimately, up to eight small entities per year
may bear costs associated with participation in consultation regarding
the proposed expansion of critical habitat for Southern Resident killer
whale. The total annualized administrative costs that may be borne by
these small entities (businesses or governments) is $9,000 (discounted
at 7 percent).
The RFA, as amended by SBREFA, requires us to consider alternatives
to the proposed regulation that will reduce the impacts to small
entities. We considered an alternative of not expanding critical
habitat for Southern Resident killer whales within their coastal range
because it would impose none of the additional economic, national
security, or other relevant impacts described in the FEA (IEc 2021) or
the Final ESA Section 4(b)(2) Report. Under this alternative, Southern
Resident killer whales would continue to receive protections provided
under the ESA, the existing critical habitat, as well as other Federal,
state, and local laws. We rejected this alternative because we
determined that the expanded critical habitat is prudent and
determinable, and the ESA requires critical habitat designation in that
circumstance. We also considered alternatives in which we designated
all six of the identified ``specific areas'' (i.e., no area excluded),
or designated some subset of the ``specific areas'' (i.e., some
``particular areas'' within the identified ``specific areas'' would be
excluded). As described in our Final ESA Section 4(b)(2) Report, we
considered the economic impacts, impacts to national security, and
other relevant impacts that would result from designation, and weighed
the benefits of designation against the benefits of exclusion.
Ultimately, we selected an alternative in which one particular area was
excluded from the designation, the Navy's Quinault Range Site off the
coast of Washington and a 10-km buffer around a portion of it, because
we considered impacts to national security outweighed the benefits of
designating critical habitat there.
Coastal Zone Management Act
Under section 307(c)(1)(A) of the Coastal Zone Management Act
(CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each
Federal activity within or outside the coastal zone that has reasonably
foreseeable effects on any land or water use or natural resource of the
coastal zone shall be carried out in a manner which is consistent to
the maximum extent practicable with the enforceable policies of
approved State coastal management programs. We have determined that
this revision of the critical habitat designation for Southern Resident
killer whales is consistent to the maximum extent practicable with the
enforceable policies of the approved Coastal Zone Management Programs
of Washington, Oregon, and California. This determination was submitted
to the responsible agencies in the aforementioned states for review.
The Washington Department of Ecology and California Coastal Commission
responded to confirm consistency with their coastal management
programs.
Paperwork Reduction Act
The purpose of the Paperwork Reduction Act is to minimize the
paperwork burden for individuals, small businesses, educational and
nonprofit institutions, and other persons resulting from the collection
of information by or for the Federal Government. This final rule does
not contain any new or revised collection of information. This rule
would not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
(a) This final rule will not produce a Federal mandate. In general,
a Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
The designation of critical habitat does not impose an enforceable duty
on non-Federal government entities or private parties. The only
regulatory effect of a critical habitat designation is that Federal
agencies must ensure that their actions are not likely to destroy or
adversely modify critical habitat under ESA section 7. Non-Federal
entities that receive funding, assistance, or permits from Federal
agencies or otherwise require approval or authorization from a Federal
agency for an action may be indirectly impacted by the designation of
critical habitat, but the legally binding duty to avoid destruction or
adverse modification of critical habitat rests squarely on the Federal
agency. Furthermore, to the extent that non-Federal entities are
indirectly impacted because they receive Federal assistance or
participate in a voluntary Federal aid program, the Unfunded Mandates
Reform Act would not apply. Nor would critical habitat shift the costs
of the large entitlement programs listed above to state governments.
(b) Due to the prohibition against take of Southern Resident killer
whales both within and outside of the designated areas, we do not
anticipate that this rule will significantly or uniquely affect small
governments. As such, a Small Government Agency Plan is not required.
Information Quality Act and Peer Review
Pursuant to the Information Quality Act (section 515 of Pub. L.
106-554), this information product has undergone a pre-dissemination
review by NMFS. The signed Pre-dissemination Review and Documentation
Form is on file with the NMFS West Coast Regional Office in Seattle,
Washington (see FOR FURTHER INFORMATION CONTACT).
On December 16, 2004, OMB issued its Final Information Quality
Bulletin for Peer Review (Bulletin). The Bulletin
[[Page 41695]]
was published in the Federal Register on January 14, 2005 (70 FR 2664),
and went into effect on June 16, 2005. The primary purpose of the
Bulletin is to improve the quality and credibility of scientific
information disseminated by the Federal Government by requiring peer
review of ``influential scientific information'' and ``highly
influential scientific information'' prior to public dissemination.
Influential scientific information is defined as information the agency
reasonably can determine will have or does have a clear and substantial
impact on important public policies or private sector decisions. The
Bulletin provides agencies broad discretion in determining the
appropriate process and level of peer review. Stricter standards were
established for the peer review of ``highly influential scientific
assessments,'' defined as information whose dissemination could have a
potential impact of more than $500 million in any one year on either
the public or private sector or that the dissemination is novel,
controversial, or precedent-setting, or has significant interagency
interest. The Draft Biological Report (NMFS 2019a) and DEA (IEc 2019)
supporting the proposed rule are considered influential scientific
information and subject to peer review. These two reports were
distributed to five independent reviewers for review before the
publication date of the proposed rule, and peer review comments were
incorporated prior to their dissemination in support of the proposed
rulemaking. The peer reviewer comments were compiled into peer review
reports that are available at the following website: https://www.cio.noaa.gov/services_programs/prplans/ID402.html.
Final reports with updates based on comments were reviewed by NOAA
NMFS Science Center experts.
On April 24, 2019, OMB issued memorandum M-19-15 to reinforce,
clarify, and interpret agency responsibilities under the Information
Quality Act. The memorandum directs agencies to update their agency-
specific guidelines within 90 days to be consistent with certain
parameters. NOAA has not yet issued revised guidance.
National Environmental Policy Act (NEPA)
NMFS has determined that an environmental analysis as provided for
under NEPA is not required for critical habitat designations made
pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th
Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: July 22, 2021.
Carrie Robinson,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 226 is amended
as follows:
PART 226--DESIGNATED CRITICAL HABITAT
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1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
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2. Revise Sec. 226.206 to read as follows:
Sec. 226.206 Critical habitat for the Southern Resident killer whale
(Orcinus orca).
Critical habitat is designated for the Southern Resident killer
whale as described in this section. The maps, clarified by the textual
descriptions in this section, are the definitive source for determining
the critical habitat boundaries.
(a) Critical habitat boundaries. Critical habitat is designated to
include all areas in paragraphs (a)(1) and (2) of this section.
(1) Inland waters of Washington State. Critical habitat includes
three specific marine areas of Puget Sound, Washington, within the
following counties: Clallam, Jefferson, King, Kitsap, Island, Mason,
Pierce, San Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical
habitat includes all waters relative to a contiguous shoreline
delimited by the line at a depth of 20 ft (6.1 m) relative to extreme
high water in each of the following areas:
(i) Summer Core Area. All U.S. marine waters in Whatcom and San
Juan counties; and all marine waters in Skagit County west and north of
the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W).
(ii) Puget Sound Area. All marine waters in Island County east and
south of the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W), and east of a line connecting the Point Wilson
Lighthouse (48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey
Island located at 48[deg]12'30'' N/122[deg]44'26'' W; all marine waters
in Skagit County east of the Deception Pass Bridge (Highway 20)
(48[deg]24'25'' N/122[deg]38'35'' W); all marine waters of Jefferson
County east of a line connecting the Point Wilson Lighthouse
(48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey Island
located at latitude 48[deg]12'30'' N/122[deg]44'26'' W, and north of
the Hood Canal Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23''
W); all marine waters in eastern Kitsap County east of the Hood Canal
Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23'' W); all marine
waters (excluding Hood Canal) in Mason County; and all marine waters in
King, Pierce, Snohomish, and Thurston counties.
(iii) Strait of Juan de Fuca Area. All U.S. marine waters in
Clallam County east of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W); all marine waters in
Jefferson and Island counties west of the Deception Pass Bridge
(Highway 20) (48[deg]24'25'' N/122[deg]38'35'' W), and west of a line
connecting the Point Wilson Lighthouse (48[deg]8'39'' N/122[deg]45'12''
W) and a point on Whidbey Island located at 48[deg]12'30'' N/
122[deg]44'26'' W.
(2) Coastal marine waters along the U.S. West Coast. Critical
habitat includes six specific marine areas along the coasts of
Washington, Oregon, and California. Critical habitat includes all
waters relative to a contiguous shoreline delimited by the line at a
depth of 20 ft (6.1 m) relative to mean high water in each of the
following areas:
(i) Coastal Washington/Northern Oregon Inshore Area. U.S. marine
waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'' N/124[deg]44'12'' W), and Bonilla Point, British Columbia
(48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. international
border with Canada south to Cape Meares, Oregon (45[deg]29'12'' N),
between the 6.1-m and 50-m isobath contours. This includes waters off
Clallam, Jefferson, Grays Harbor, and Pacific counties in Washington
and Clatsop and Tillamook counties in Oregon.
(ii) Coastal Washington/Northern Oregon Offshore Area. U.S. marine
waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W) south to Cape Meares,
Oregon (45[deg]29'12'' N), between the 50-m and 200-m isobath contours.
This includes waters off Clallam, Jefferson, Grays Harbor, and Pacific
counties in Washington and Clatsop and Tillamook counties in Oregon.
(iii) Central/Southern Oregon Coast Area. U.S. marine waters from
Cape Meares, Oregon (45[deg]29'12'' N) south to the border between
Oregon and California (42[deg]00'00'' N), between the 6.1-m and 200-m
isobath contours. This
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includes waters off Tillamook, Lincoln, Lane, Douglas, Coos, and Curry
counties in Oregon.
(iv) Northern California Coast Area. U.S. marine waters from the
border between Oregon and California (42[deg]00'00'' N) south to Cape
Mendocino, California (40[deg]26'19'' N), between the 6.1-m and 200-m
isobath contours. This includes waters off Del Norte and Humboldt
counties in California.
(v) North Central California Coast Area. U.S. marine waters from
Cape Mendocino, California (40[deg]26'19'' N) south to Pigeon Point,
California (37[deg]11'00'' N), between the 6.1-m and 200-m isobath
contours. This includes waters off Humboldt, Mendocino, Sonoma, Marin,
San Francisco, and San Mateo counties in California.
(vi) Monterey Bay Area. U.S. marine waters from Pigeon Point,
California (37[deg]11'00'' N) south to Point Sur, California
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This
includes waters off San Mateo, Santa Cruz, and Monterey counties in
California.
(b) Essential features. The essential features for the conservation
of Southern Resident killer whales are the following:
(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.
(c) Sites owned or controlled by the Department of Defense.
Critical habitat does not include the following particular areas owned
or controlled by the Department of Defense, or designated for its use,
in the State of Washington, including shoreline, nearshore areas around
structures such as docks and piers, and marine areas where they overlap
with the areas described in paragraph (a) of this section:
(1) Naval Undersea Warfare Center, Keyport;
(2) Naval Ordnance Center, Port Hadlock (Indian Island);
(3) Naval Fuel Depot, Manchester;
(4) Naval Air Station, Whidbey Island;
(5) Naval Station, Everett;
(6) Naval Hospital Bremerton;
(7) Fort Lewis (Army);
(8) Pier 23 (Army);
(9) Puget Sound Naval Ship Yard;
(10) Strait of Juan de Fuca naval air-to-surface weapon range,
restricted area;
(11) Strait of Juan de Fuca and Whidbey Island naval restricted
areas;
(12) Admiralty Inlet naval restricted area;
(13) Port Gardner Naval Base restricted area;
(14) Port Orchard Passage naval restricted area;
(15) Sinclair Inlet naval restricted area;
(16) Carr Inlet naval restricted area;
(17) Port Townsend/Indian Island/Walan Point naval restricted area;
(18) Crescent Harbor Explosive Ordnance Units Training Area; and
(19) Quinault Range (including the surf zone at Pacific Beach) and
a 10-km buffer around most of the Quinault Range, not including the
portion of this buffer that extends beyond 10 km into the Olympic Coast
National Marine Sanctuary (OCNMS).
(d) Maps of Southern Resident killer whale critical habitat.
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[FR Doc. 2021-16094 Filed 7-30-21; 8:45 am]
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