[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Proposed Rules]
[Pages 34571-34588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5439]



[[Page 34571]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 060228057-6057-01; I.D. 022206D]
RIN 0648-AU38


Endangered and Threatened Species; Designation of Critical 
Habitat for the Southern Resident Killer Whale

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Proposed rule; request for comment.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate critical habitat for the Southern Resident killer whale 
(Orcinus orca) distinct population segment (DPS), which was recently 
listed as endangered under the Endangered Species Act (ESA). Three 
specific areas are proposed for designation: The Summer Core Area in 
Haro Strait and waters around the San Juan Islands; Puget Sound; and 
the Strait of Juan de Fuca, which comprise approximately 2,564 square 
miles (6,641 sq km) of marine habitat. We propose to exclude 18 
military sites, comprising approximately 112 square miles (291 sq km), 
because of national security impacts.
    We are soliciting comments from the public on all aspects of the 
proposal, including information on the economic, national security, and 
other relevant impacts of the proposed designation, as well as the 
benefits to Southern Resident killer whales from designation. A draft 
economic analysis, biological report, and Section 4(b)(2) report 
conducted in support of this proposal are also available for public 
review and comment.

DATES: Comments on this proposed rule must be received by close of 
business on August 14, 2006. Public meetings have been scheduled for 
July 12, 2006, 7-9 p.m., at the Seattle Aquarium, Seattle, WA and July 
13, 2006, 7-9 p.m., at the Whale Museum, Friday Harbor, WA. Requests 
for additional public hearings must be made in writing by July 31, 
2006.

ADDRESSES: Comments may be submitted by any of the following methods:
     E-mail: [email protected]. E-mail comments, with or 
without attachments, are limited to 5 megabytes.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions at that site for submitting comments.
     Mail: Submit written comments and information to Chief, 
Protected Resources Division, 1201 NE Lloyd Blvd., Suite 1100, 
Portland, OR 97232-1274.
    The proposed rule, maps, stock assessments, listing rule, 
biological and economic analyses, and other materials relating to this 
proposal can be found on our Web site at http://www.nwr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Lynne Barre at (206) 526-4745, or 
Marta Nammack at (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Under the Endangered Species Act of 1973, as amended (ESA), we are 
responsible for determining whether certain species, subspecies, or 
distinct population segments (DPS) are threatened or endangered, and 
designating critical habitat for them (16 U.S.C. 1533). In November 
2005, we listed the Southern Resident killer whale DPS as endangered 
under the ESA (70 FR 69903; November 18, 2005). At the time of listing, 
we also announced our intention to propose critical habitat for the 
Southern Resident killer whale.
    Section 3 of the ESA defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed * * *, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed * * *, upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the 
terms ``conserve,'' ``conserving,'' and ``conservation'' to mean: ``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 chapter are no longer 
necessary.''
    Section 4 of the ESA requires that, before designating critical 
habitat, we consider economic impacts, impacts on national security, 
and other relevant impacts of specifying any particular area as 
critical habitat. The Secretary may exclude any area from critical 
habitat if he determines that the benefits of exclusion outweigh the 
benefits of designation, unless excluding an area from critical habitat 
will result in the extinction of the species concerned. Once critical 
habitat is designated, section 7(a)(2) of the ESA requires that each 
Federal agency, in consultation with us and with our assistance, ensure 
that any action it authorizes, funds, or carries out is not likely to 
result in the destruction or adverse modification of critical habitat.

Killer Whale Natural History

    Killer whales are the world's largest dolphin. The sexes show 
considerable size dimorphism, with males attaining maximum lengths and 
weights of 29.5 feet (9 m) and 12,275 pounds (5,568 kg), respectively, 
compared to 25.3 feet (7.7 m) and 8,400 pounds (3,810 kg) for females 
(Dahlheim and Heyning, 1999). Adult males develop larger pectoral 
flippers, dorsal fins, tail flukes, and girths than females (Clark and 
Odell, 1999). Maximum life span is estimated to be 80-90 years for 
females and 50-60 years for males (Olesiuk et al., 1990). Animals are 
black dorsally and have a white ventral region extending from the chin 
and lower face to the belly and anal region. Each whale has a uniquely 
shaped and scarred dorsal fin and saddle patch, which permits animals 
to be individually recognized, as depicted in photo-identification 
catalogs, such as those compiled for the northeastern Pacific region 
(e.g., Black et al., 1997; Dahlheim, 1997; Dahlheim et al., 1997; van 
Ginneken et al., 1998; 2000; 2005; Matkin et al., 1999; Ford and Ellis, 
1999; Ford et al., 2000).
    Three distinct forms of killer whales, termed residents, 
transients, and offshores, are recognized in the northeastern Pacific 
Ocean. Although there is considerable overlap in their ranges, these 
forms display significant genetic differences due to a lack of 
reproductive interchange (Stevens et al., 1989; Hoelzel and Dover, 
1991; Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and 
Ellis, 2001; Krahn et al., 2004). There are also important differences 
in ecology, behavior, morphology, and acoustics among these three forms 
(Baird, 2000; Ford et al., 2000).
    Resident killer whales in U.S. waters are distributed from Alaska 
to California, with four distinct communities recognized: Southern, 
Northern, Southern Alaska, and Western Alaska (Krahn et al., 2002; 
2004). The Southern Resident DPS consists of three pods, identified as 
J, K, and L pods, that reside for part of the year in the inland 
waterways of Washington State and British Columbia (Strait of Georgia,

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Strait of Juan de Fuca, and Puget Sound), principally during the late 
spring, summer, and fall (Ford et al., 2000; Krahn et al., 2002). Pods 
visit coastal sites off Washington and Vancouver Island (Ford et al., 
2000), but travel as far south as central California and as far north 
as the Queen Charlotte Islands. Offshore movements and distribution are 
largely unknown for the Southern Resident DPS.
    Social organization in this region is based on maternal kinship. 
Most mating in the North Pacific is believed to occur from May to 
October (Nishiwaki, 1972; Olesiuk et al., 1990; Matkin et al., 1997). 
However, small numbers of conceptions apparently happen year-round, as 
evidenced by births of calves in all months. Calves remain close to 
their mothers during their first year of life, often swimming slightly 
behind and to the side of the mother's dorsal fin. Weaning age remains 
unknown, but nursing probably ends at 1 to 2 years of age (Haenel, 
1986; Kastelein et al., 2003). Mothers and offspring maintain highly 
stable social bonds throughout their lives, and this natal relationship 
is the basis for the matrilineal social structure (Bigg et al., 1990; 
Baird, 2000; Ford et al., 2000). A matriline is usually composed of a 
female, her sons and daughters, and offspring of her daughters, and 
contains up to 17 individuals spanning up to five generations. Members 
maintain extremely strong bonds, and individuals seldom separate from 
the group for more than a few hours.
    Although there is considerable overlap in the geographic ranges of 
Southern and Northern Resident killer whales, pods from the two 
communities have not been observed to intermix (Ford et al., 2000). 
Genetic analyses using nuclear (microsatellite) and mitochondrial DNA 
indicate that the two communities are most likely reproductively 
isolated from each other (Hoelzel et al., 1998; Barrett-Lennard, 2000; 
Barrett-Lennard and Ellis, 2001). Recent paternity analyses using 
microsatellite DNA indicate that resident males nearly always mate with 
females outside of their own pods, thereby reducing the risks of 
inbreeding (Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001).
    Based on scale sampling and stomach contents studies, Southern 
Resident killer whales are known to consume 22 species of fish and one 
species of squid (Scheffer and Slipp, 1948; Ford et al., 1998; 2000; 
Ford and Ellis, 2005; Saulitis et al., 2000). Most published 
information originates from a single study (Ford et al., 1998; Ford and 
Ellis, 2005) in British Columbia, including southeastern Vancouver 
Island, that focused primarily on Northern Residents, relied on several 
field techniques susceptible to bias (e.g., surface observations and 
scale sampling), and reported on a relatively small sample of 
observations for Southern Residents. Of the 487 records of apparent 
fish predation events from 1974-2004, only 68 (14 percent) observations 
came from Southern Residents. While this information is limited, it is 
the best information available.
    In this study, salmon were found to represent over 96 percent of 
the prey during the summer and fall. Chinook salmon (Oncorhynchus 
tshawytscha) were selected over other species, comprising over 70 
percent of the identified salmonids taken. This preference occurred 
despite the much lower abundance of Chinook in the study area in 
comparison to other salmonids and is probably related to the species' 
large size, high fat and energy content, and year-round occurrence in 
the area. Other salmonids eaten in smaller amounts included chum (O. 
keta, 22 percent of the diet), pink (O. gorbuscha, three percent), coho 
(O. kisutch, two percent), and sockeye (O. nerka, one percent) salmon, 
and steelhead (O. mykiss, less than one percent) (Ford and Ellis, 
2005). This work suggests an overall preference for Chinook salmon 
during the summer and fall, but also revealed extensive feeding on chum 
salmon in the fall. Rockfish (Sebastes spp.), Pacific halibut 
(Hippoglossus stenolepis), and Pacific herring (Clupea pallasi) were 
also observed during predation events (Ford and Ellis, 2005), but in 
much smaller amounts. This study may underestimate the extent of 
feeding on bottom fish (Baird, 2000) because it is more difficult to 
observe predation on bottom fish.
    A number of smaller flatfish, lingcod (Ophiodon elongatus), 
greenling (Hexagrammos spp.), and squid have been identified in stomach 
content analyses of resident whales (Ford et al., 1998). Additional 
sampling of prey remains in 2004 and 2005 also indicate consistent 
primary selection of Chinook by the Southern Residents in the seasons 
sampled (NWFSC, unpubl. data).
    The energy requirements of killer whales are about 85,000 kcal per 
day for juveniles, 100,000 kcal per day for immatures, 160,000 kcal per 
day for adult females, and 200,000 kcal per day for adult males 
(Osborne, 1999). Based on these values and an average size for five 
salmon species combined, Osborne (1999) estimated that adults must 
consume about 28-34 adult salmon daily and that younger whales (<13 
years of age) need 15-17 salmon daily to maintain their energy 
requirements. These data provide a ``rule of thumb'' of approximately 
25 salmon per day per whale, estimated over all age classes. We 
estimate that a Southern Resident DPS of 90 individuals would eat about 
820,000 adult salmon annually (Osborne, 1999). This does not, however, 
account for any other prey species and is therefore likely an 
overestimate of potential salmon consumption. The average fish size in 
the extrapolation was based on a combination of five species, so the 
estimate also does not account for consumption of varying amounts of 
different species of salmon.
    As with other delphinids, killer whales hear sounds through the 
lower jaw and other portions of the head, which transmit the sound 
signals to receptor cells in the middle and inner ears (Mhl et al., 
1999; Au, 2002). Hearing ability extends from one to at least 120 kHz, 
but is most sensitive in the range of 18-42 kHz (Szymanski et al., 
1999). The most sensitive frequency is 20 kHz, which corresponds with 
the approximate peak energy of the species' echolocation clicks 
(Szymanski et al., 1999). Clicks are brief pulses of ultrasonic sound 
given singly or more often in series known as click trains. They are 
used primarily for navigation and discriminating prey and other objects 
in the surrounding environment, but are also commonly heard during 
social interactions and may have a communication function (Barrett-
Lennard et al., 1996). Killer whales locate their prey through a 
combination of echolocation and passive listening (Barrett-Lennard et 
al., 1996), but probably rely on vision and echolocation during 
capture.
    Vocal communication is particularly advanced in killer whales and 
is an essential element of the species' complex social structure. Like 
all dolphins, killer whales produce numerous types of vocalizations 
that are useful in navigation, communication, and foraging (Dahlheim 
and Awbrey, 1982; Ford, 1989; Barrett-Lennard et al., 1996; Ford et 
al., 2000; Miller, 2002; Miller et al., 2004). Dialects are complex and 
stable over time, and are unique to single pods. Call patterns and 
structure are also distinctive within matrilines (Miller and Bain, 
2000). Individuals likely learn their dialect through contact with 
their mother and other pod members (Ford, 1989; 1991; Miller and Bain, 
2000). Distinct vocal repertoires, or dialects, may be a mechanism that 
guides breeding with individuals

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outside of natal pods, but within the resident group.
    Killer whales frequent a variety of marine habitats that do not 
appear to be constrained by water depth, temperature, or salinity 
(Baird, 2000). They are highly mobile, can cover large distances, and 
range over a variety of habitats, including inland waters and open 
ocean coastal areas.
    The Southern Residents spend large amounts of time in ``core'' 
inland marine waters coinciding with congregations of migratory salmon 
returning from the Pacific Ocean to spawn in U.S. and Canadian Rivers. 
The topographic and oceanographic features in these core areas include 
channels and shorelines which congregate prey and assist with foraging. 
Southern Residents are large mammals requiring abundant food sources to 
sustain metabolic processes throughout the year. Prey availability 
changes seasonally, and Southern Residents appear to depend on 
different prey species and habitats throughout the year. The seasonal 
timing of salmon returns to Southern Puget Sound river systems likely 
influences the movements of Southern Residents out of core summer 
areas. Whales may travel significant distances to locate prey 
aggregations sufficient to support their numbers.

Physical or Biological Features Essential for Conservation (Primary 
Constituent Elements)

    Joint NMFS-U.S. Fish and Wildlife Service regulations for listing 
endangered and threatened species and designating critical habitat at 
50 CFR 424.12(b) state that the agencies ``shall consider those 
physical and biological features that are essential to the conservation 
of a given species and that may require special management 
considerations or protection (hereafter also referred to as `Essential 
Features' or `Primary Constituent Elements'/`PCEs').'' Pursuant to the 
regulations, such requirements include, but are not limited to, the 
following: (1) Space for individual and population growth, and for 
normal behavior; (2) food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) cover or shelter; (4) 
sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and generally, (5) habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species. These regulations state that we 
shall focus on essential features within the specific areas considered 
for designation. These features ``may include, but are not limited to, 
the following: spawning sites, feeding sites, seasonal wetland or 
dryland, water quality or quantity, geological formation, vegetation 
type, tide, and specific soil types.''
    Fish are the major dietary component of resident killer whales in 
the northeastern Pacific, with 22 species of fish and one species of 
squid (Gonatopsis borealis) known to be eaten (Scheffer and Slipp, 
1948; Ford et al., 1998; 2000; Ford and Ellis, 2005; Saulitis et al., 
2000). Observations from this region indicate that salmon are clearly 
preferred as prey (Ford et al., 1998; Ford and Ellis, 2005) and are 
likely consumed in large amounts, as indicated by the estimates of 
total salmon consumed by the Southern Resident killer whale DPS. 
Sufficient prey abundance is necessary to support individual growth to 
reach sexual maturity and reproduction, including lactation and 
successful rearing of calves.
    In addition to a sufficient biomass of prey species, the prey must 
not have amounts of contaminants that exceed levels that can cause 
mortality or reproductive failure. Because of their long life span, 
position at the top of the food chain, and their blubber stores, killer 
whales accumulate high concentrations of contaminants. Organochlorines, 
such as polychlorinated biphenyls (PCBs) and 
dichlorodiphenyltrichloroethane (DDT), and many other chemical 
compounds are a concern because of their ability to induce immune 
suppression, reproductive impairment, and other physiological damage, 
as observed in several species of marine mammals (Beland et al., 1998; 
Bergman et al., 1992; De Guise et al., 2003; Jepson et al., 1999; 
Reijinders, 2003; Ross, 2002). To move between important habitat areas, 
find prey, and fulfill other life history requirements, the Southern 
Resident killer whales require open waterways that are free from 
obstruction, such as in-water structures that block passage.
    Killer whale habitat use is dynamic, and specific breeding, calving 
or resting areas have not been documented. Births occur largely from 
October to March, but may take place in any month (Olesiuk et al., 
1990), and, therefore, potentially in any part of the whales' range. 
Southern Residents are highly mobile and can travel up to 100 miles 
(160 km) in a 24-hour period (Baird, 2000), allowing rapid movements 
between areas. These movements likely coincide with prey 
concentrations. Individual knowledge of productive feeding areas and 
other special habitats is probably important in the selection of 
locations visited and is likely a learned tradition passed from one 
generation to the next (Ford et al., 1998).
    Based on this natural history of the Southern Resident killer 
whales and their habitat needs, the physical or biological features of 
Southern Resident killer whale habitat identified in the proposal to 
list the species (69 FR 76673; December 22, 2004) were:
    (1) Water quality to support growth and development;
    (2) Prey species of sufficient quantity, quality and availability 
to support growth and development;
    (3) Sound levels that do not exceed thresholds that inhibit 
communication or foraging activities or result in temporary or 
permanent hearing loss; and
    (4) Safe passage conditions to support migration and foraging.
    NMFS received several comments on the features mentioned in the 
proposal to list the species. For purposes of this proposal to 
designate critical habitat, we have revised the PCEs as follows:
    (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 are gathering additional information to assist us in evaluating 
sound as a potential PCE, see Public Comments Solicited.

Geographical Area Occupied by the Species

    Photo-identification studies, tracking by boats, and opportunistic 
sightings have provided considerable information on the ranges and 
movements of Southern Resident killer whales since the early 1970s. 
Ranges are best known from late spring to early autumn (May-September), 
when survey effort is greatest. During this period, all three Southern 
Resident pods--J, K and L--are regularly present in the Georgia Basin 
(defined as the Georgia Strait, San Juan Islands, and Strait of Juan de 
Fuca) (Heimlich-Boran, 1988; Felleman et al., 1991; Olson, 1998; 
Osborne, 1999).
    While in inland waters during summer months, all of the pods 
concentrate their activity in Haro Strait, Boundary Pass, the southern 
Gulf Islands, the northeastern end of the Strait of Juan de Fuca, and 
several localities in southern Georgia Strait (Heimlich-Boran, 1988; 
Felleman et al., 1991; Olson, 1998; Ford et al., 2000). Pods commonly 
occur and are observed foraging in areas where salmon frequent, 
especially during the times of year

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salmon are migrating to their natal rivers (Heimlich-Boran, 1986; 1988; 
Nichol and Shackleton, 1996). Notable concentrations include Haro 
Strait and Boundary Passage, the southern tip of Vancouver Island, 
Swanson Channel off North Pender Island, and the mouth of the Fraser 
River delta, which is visited by all three pods in September and 
October (Felleman et al., 1991; Ford et al., 2000). These sites are 
major corridors for migrating salmon.
    Individual pods are generally similar in their preferred areas of 
use (Olson, 1998), although some seasonal and temporal differences 
exist in areas used. All three pods typically arrive in May or June and 
spend most of their time in inland waters until departing in October or 
November. However, K and L pods make frequent trips lasting a few days 
to the outer coasts of Washington and southern Vancouver Island during 
this time period (Ford et al., 2000). During early autumn, Southern 
Resident pods, especially J pod, routinely expand their movements into 
Puget Sound, probably to take advantage of chum and Chinook salmon runs 
(Osborne, 1999). Additional studies currently underway have identified 
finer scale pod differences in seasonal movement patterns and use of 
core areas (Hauser et al., in prep).
    There are no confirmed sightings of Southern Resident killer whales 
inside Hood Canal. On one occasion in 1995, acoustic recordings from 
Dabob Bay were identified as J pod vocalizations (Unger, 1997). We do 
not consider this sufficient evidence of presence to find Hood Canal 
``within the geographical area occupied by the species.'' (Transient 
killer whales, in contrast, have been observed in Hood Canal on 
multiple occasions and have remained in Hood Canal for extended periods 
in the last several years.)
    We also do not consider extremely shallow waters of Puget Sound to 
be within the geographical area occupied by the species. Male killer 
whales grow to 29.5 feet (9m), and females to 25.3 feet (7.7m), which 
may limit maneuverability in shallow waters. Southern Residents are 
seldom observed in shallow waters. (This is in contrast to transient 
killer whales, which enter shallow water to capture seals and sea 
lions, and Northern Residents, which spend time in shallow water at 
rubbing beaches.) Because there is limited information, we are 
requesting information on killer whale use of shallow areas with less 
than 20 feet (6.1m) of water (see Public Comments Solicited).
    During the late fall, winter, and early spring, the ranges and 
movements of the Southern Residents are less well known. J pod 
continues to occur intermittently in the Georgia Basin and Puget Sound 
part of this time, but its location during apparent absences is 
uncertain (Osborne, 1999). One sighting of this pod was made off Cape 
Flattery, Washington, in March 2004 (Krahn et al., 2004). Prior to 
1999, K and L pods followed a general pattern in which they spent 
progressively smaller amounts of time in inland waters during October 
and November and departed them entirely by December of most years 
(Osborne, 1999). Sightings of both groups passing through the Strait of 
Juan de Fuca in late fall suggested that activity shifted to the outer 
coasts of Vancouver Island and Washington (Krahn et al., 2002), 
although it is unclear if the whales spend a substantial portion of 
their time in this area or simply transit to other locations.
    While there are considerable data on the use of inland waters of 
Washington, there is very little information on the movements of 
Southern Resident killer whales off the coast. Areas of activity of all 
pods are virtually unknown during their absences from inland waters. In 
the last 30 years of study, there are only 28 confirmed sightings in 
outside waters (Krahn et al., 2004; NWFSC unpubl. data). The majority 
of these sightings were opportunistic, with most occurring within 10 
miles (16.1 km) of shore, and we do not know how far from shore the 
Southern Residents range. Several new sightings occurred during the 
last 5 years, when effort was increased with dedicated ship surveys and 
expanded volunteer coastal sighting networks. Our knowledge of the 
southern and northern boundaries of the range has expanded with these 
new sightings from California and the Queen Charlotte Islands in recent 
years. At this time there are few data on how the whales are using 
offshore areas; however, some of the sightings included observations of 
feeding.
    There is an active research effort underway to identify coastal and 
offshore distribution of Southern Residents. We have increased outreach 
efforts to gather sighting information from coastal communities, vessel 
operators, and pilots along the coasts of Oregon, Washington, and 
British Columbia. In addition, researchers are conducting dedicated 
ship surveys to locate the whales and observe their activities outside 
of Puget Sound. The research program is a long-term effort, but we hope 
to greatly increase the number of coastal observations in the next 5 
years. As new information is collected on the coastal and offshore 
distribution and habitat use, we hope to fill in the data gaps about 
the important habitat features of these coastal and offshore areas.
    NMFS regulations at 50 CFR 424.12(h) state: ``Critical habitat 
shall not be designated within foreign countries or in other areas 
outside of United States jurisdiction.'' Although the Southern 
Residents' range includes inland waters of Canada, we are not proposing 
these areas for designation.

Specific Areas Within the Geographical Area Occupied by the Species

    Several commenters stated that designating critical habitat was 
important for the recovery of Southern Resident killer whales and that 
designation should occur as soon as possible. Suggestions for essential 
features, and specific areas where they could be found, were general 
and included ``most of Puget Sound,'' ``Puget Sound and the Straits of 
Georgia and Juan de Fuca,'' and ``all internal waters of Washington 
State.''
    We reviewed the available information on Southern Resident 
distribution, habitat use and habitat needs in a biological report to 
assist in identifying critical habitat (NMFS, 2006a). Within the 
geographical area occupied by the Southern Resident killer whales we 
have identified three specific areas that contain essential habitat 
features. We have divided the inside waters of Washington State into 
specific areas based on the habitat features and the use patterns of 
the Southern Resident killer whales.
    We analyzed Southern Resident killer whale sightings data from The 
Whale Museum (Osborne, 2005; The Whale Museum Orca Master, 1990-2003) 
to assist in identifying specific areas based on habitat use patterns 
by the whales. The Whale Museum data are predominantly opportunistic 
sightings from a variety of sources, including public reports, 
commercial whale watching industry pager system, Soundwatch, Lime Kiln 
State Park land-based observations, and compilations of independent 
researcher reports. The data set does not account for level of effort 
by season or location, and, therefore, the sampling and data are biased 
(Osborne, 2005). The 1990-2003 Whale Museum data set is, however, the 
most comprehensive long-term data available to evaluate broad-scale 
whale distribution in inland waters at this time (with a total number 
of sighting records of 22,509). In order to evaluate frequency of use, 
our analysis of the sightings was limited to one unique location 
sighting, per location, per day to reduce the bias introduced by 
multiple sightings of the same whales in

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the same location on the same day (total number of unique sightings per 
day is 11,836). For the majority of the killer whale sightings the 
location reported was not an exact point location (Lat./Long.), and all 
locations were subsequently assigned to a center point in a quadrant 
system (Osborne, 2005). Almost half of the data is from the Whale Watch 
pager system created by the commercial whale watch industry and 
available to subscribers. A validation of recent pager data revealed 
greater than 90 percent accuracy in locating whales (Hauser et al., in 
prep).
    From the sightings and other data, we have identified three 
``specific areas,'' within the geographical area occupied by the 
species, that contain PCEs. We considered presence and movements of the 
whales, behavioral observations and studies, and other information to 
verify that one or more of the physical or biological features, or 
PCEs, can be found in these three areas. In some cases where direct 
data on PCEs were not available, we relied on distribution patterns of 
the whales to infer presence of PCEs.
    Area 1. Core Summer Area--Bordered to the North and West by the 
U.S./Canadian border, Area 1 includes the waters surrounding the San 
Juan Islands, the U.S. portion of the Southern Strait of Georgia, and 
areas directly offshore of Skagit and Whatcom counties. Prey species, 
one of the PCEs, are present in Area 1. Runs of salmon passing through 
Area 1 include Chinook, chum, coho, pink, and sockeye salmon, which 
have all been identified as prey for Southern Residents (Ford et al., 
1998; Ford and Ellis, 2005; NWFSC, unpubl. data). The Strait of Juan de 
Fuca, Haro and Georgia Straits are relatively narrow channels and 
concentrate salmon returning from the Pacific Ocean to spawn in U.S. 
and Canadian rivers. In particular, Area 1 lies near the mouth of the 
Fraser River, which has the largest salmon runs in the Georgia Basin/
Puget Sound region (Northcote and Atagi, 1997).
    Occurrence of Southern Residents in Area 1 coincides with 
concentrations of salmon. Southern Resident killer whales have been 
sighted in Area 1 during every month of the year, but sightings are 
more consistent and concentrated in the summer months of June through 
August. The Whale Museum database from 1990-2003 contains 11,836 unique 
sightings after duplicate locations on the same date are excluded. Of 
these, 8,508 are in U.S. waters, and 85 percent of the U.S. sightings 
are in Area 1. Although sighting effort in Area 1 is extensive during 
the summer months as compared to other areas, which biases the data, 
the strength of the summer use pattern would undoubtedly persist if 
accounting for sighting effort. Sighting data from 1976-1990, when 
effort was significantly lower, also reflects this pattern (Whale 
Museum, unpubl. data). The largest number of sightings in Washington's 
inland waters is from Haro Strait off the west side of San Juan Island. 
There are over 1,200 unique sightings from 1990-2003 in one quadrant 
off the west side of San Juan Island.
    Much of the behavioral research on Southern Residents takes place 
within Area 1. Southern Residents are observed exhibiting a variety of 
behaviors in this area, including travel, forage, social, and play. 
Resident whales spend 50-67 percent of their time foraging (Heimlich 
Boran, 1988; Ford, 1989; Morton, 1990; Felleman et al., 1991). 
Opportunities to forage are presumed to be a major factor attracting 
Southern Residents to Area 1, particularly in the summer months when it 
is considered a primary feeding area for all three pods (J, K, and L).
    Area 2. Puget Sound--south from Deception Pass Bridge, entrance to 
Admiralty Inlet, Hood Canal Bridge. Southern Resident killer whale 
occurrence in Area 2 has been correlated with fall salmon runs, a prey-
related PCE. Feeding has been observed in Area 2 (NWFSC, unpubl. data), 
though few behavioral studies have been conducted in this area. During 
the fall, Southern Residents, especially J pod, expand their movements 
into Puget Sound, likely taking advantage of chum and Chinook salmon 
runs (Osborne, 1999). A fall chum run was suggested as the likely 
reason for an extended presence of members of L pod in Dyes Inlet 
during October and November of 1997.
    Southern Resident killer whales have been sighted in parts of Area 
2 in all seasons despite limited search effort. The presence of 
Southern Residents in Area 2 is intermittent, with the smallest number 
of sightings in May-July. There are different sighting patterns in Area 
2 for the three pods. In the most southern portion of Area 2, south of 
Tacoma Narrows Bridge, there have been only a small number of Southern 
Resident sightings from October-January, with one additional sighting 
in April.
    Area 3. Strait of Juan de Fuca--Deception Pass Bridge, San Juan and 
Skagit County lines to the northeast, entrance to Admiralty Inlet to 
the southeast, U.S./Canadian border to the north, Bonilla Point/Tatoosh 
Island line to the West. All pods regularly use the Strait of Juan de 
Fuca for passage from Areas 1 and 2 to outside waters in the Pacific 
Ocean. Area 3 is predominantly a passage used to access outer coastal 
waters feeding grounds, including Swiftsure and La Perouse Banks, off 
Tofino, British Columbia, and off Westport, as well as other areas with 
unknown usage, such as the coast of northern California. Recent 
observations at Westport coincided with presence of a spring Chinook 
salmon run, although other species were also likely present (NWFSC, 
unpubl. data). The presence of migrating salmonids in the Strait of 
Juan de Fuca suggests that feeding might occur during times the whales 
are transiting. However, the whales are not known to spend long periods 
in localized areas in the Strait. Sightings of the Southern Residents 
in Area 3 are limited, particularly on the U.S. side of the 
international boundary, as there is little observation effort in the 
area, particularly to the west toward the Bonilla Point/Tatoosh Island 
line. Even with a small number of actual sightings, we can infer that 
the whales are using this corridor, and the passage PCE is present in 
Area 3 based on the inland and coastal sightings of whales. The Strait 
of Juan de Fuca is not the only transit corridor between inland waters 
and coastal British Columbia, and the whales occasionally use the 
Strait of Georgia and Johnstone Strait in Canadian waters as an 
alternate route.

Special Management Considerations

    The specific areas within the geographical area occupied by a 
species meet the definition of critical habitat only if they contain 
physical or biological features that ``may require special management 
considerations or protection.'' Agency regulations at 50 CFR 424.02(j) 
define ``special management considerations or protection'' to mean 
``any methods or procedures useful in protecting physical and 
biological features of the environment for the conservation of listed 
species.'' Several forms of human activity have the potential to affect 
the habitat of killer whales and, specifically, the PCEs that are 
essential to their conservation.
    Most salmon stocks throughout the Northwest are at a fraction of 
their historic levels. Historically, overfishing was a major cause of 
decline. More recently the major cause is loss of freshwater habitat. 
Poor ocean conditions over the past two decades reduced populations 
already weakened by the degradation and loss of freshwater and estuary 
habitat, fishing pressures, hydropower system management, and hatchery 
practices.
    Continued regulation of contaminants and pollution in Puget Sound 
is also necessary to protect the prey PCE for

[[Page 34576]]

Southern Residents through management schemes, such as the National 
Pollutant Discharge Elimination System (NPDES). Contaminants enter 
marine waters and sediments from numerous sources, but are typically 
concentrated near areas of high human population and industrialization. 
Once in the environment these substances proceed up the food chain, 
accumulating in long-lived top predators like Southern Resident killer 
whales. Chemical contamination through the food chain continues to be a 
potential threat to Southern Resident killer whales, despite the 
enactment of modern pollution controls in recent decades, which were 
successful in reducing, but not eliminating, the presence of many 
contaminants in the environment.
    Oil spills are another source of contamination that can have long-
lasting impacts on habitat (although the primary concern with oil 
spills is the potential for direct injury to the whales). The 
Environmental Protection Agency and U.S. Coast Guard oversee the Oil 
Pollution Prevention regulations promulgated under the authority of the 
Federal Water Pollution Control Act. There is a Northwest Area 
Contingency Plan, developed by the Northwest Area Committee, which 
serves as the primary guidance document for oil spill response in 
Washington and Oregon.
    Southern Residents are highly mobile and use a variety of areas for 
foraging and other activities, as well as for traveling between these 
areas. Human activities can interfere with movements of the whales and 
impact the passage PCE. In particular, vessels may present obstacles to 
whale passage, causing the whales to swim further and change direction 
more often, which potentially increases energy expenditure for whales 
and impacts foraging behavior (although this effect of vessels is 
primarily a direct effect on the whales rather than an effect on their 
habitat).
    Major categories of habitat-related activities which may require 
special management considerations or protection include fishery 
management, vessel activities, and water quality management. All of 
these activities have the potential to affect the PCEs by altering prey 
abundance, prey contamination levels, and passage between areas.

Features Which May Require Special Management Considerations or 
Protection in Each Specific Area

    Area 1. Area 1 likely has areas of low to moderate levels of 
contaminated sediments. Levels of contaminants in marine mammals such 
as harbor seals show a trend of decreasing levels of contamination 
moving north from South Puget Sound to the San Juans and up into 
Canadian waters (Jeffries et al., 2003; Ross et al., 2004). Exposure to 
contaminants for species of salmon depends on feeding patterns and may 
also be linked to salmon spending different amounts of time in Puget 
Sound (O'Neill et al., 2005). Three of the four major oil refineries in 
Puget Sound are located in Area 1. There is commercial and recreational 
fishing for salmon and other species in Area 1, and effort is 
seasonally dependent on fish abundance.
    Area 1 and nearby adjoining Canadian waters contain the highest 
level of commercial and recreational whale watching activity in the 
region. The majority of both Canadian- and U.S.-based whale watching 
vessels originate from ports and marinas in Area 1, although there are 
a small number of vessels originating from ports in Areas 2 and 3 
(Hauser et al., in prep). Fishing vessels, ferries, oil tankers, and 
commercial shipping vessels are also present in Area 1, which contains 
a major shipping channel along the U.S.-Canada border.
    Area 2. Contaminated sediment levels in Area 2 likely range from 
low/moderate (northern portions) to very high (e.g., near Tacoma). A 
higher number of NPDES permits are issued in Area 2 than in Areas 1 or 
3. One of the four major oil refineries in Puget Sound is located in 
Area 2. Considerable vessel traffic (including shipping, oil tanker and 
ferry traffic) occurs in Area 2, and the ports of Seattle and Tacoma 
are located in Area 2. Whale watching may be expanding in Area 2 to 
include fall months following the primary summer whale watch season. 
There is commercial and recreational fishing for salmon and other 
species in Area 2, and effort is seasonally dependent on fish 
abundance.
    Area 3. Contaminated sediment levels in Area 3 likely range from 
low to moderate with isolated spots of moderate/high levels (e.g., Port 
Angeles). Area 3 contains a major shipping lane for commercial shipping 
vessels entering and departing major U.S. ports of Seattle and Tacoma, 
and Vancouver in British Columbia, Canada. Oil tankers also use the 
shipping lane to transport crude oil to the four major refineries in 
Puget Sound. There is little whale watching activity in Area 3. There 
is commercial and recreational fishing for salmon and other species in 
Area 3, and effort is seasonally dependent on fish abundance.

Coastal and Offshore Areas

    We have few data on Southern Resident distribution and habitat use 
of coastal and offshore areas in the Pacific Ocean. While we know that 
the whales occupy these waters for a portion of the year and they are 
considered part of the geographical area occupied by the species, we do 
not have detailed information about distribution, behavior, and 
habitat. While we can infer that some of the PCEs, such as prey, must 
be present to support the whales, we do not have sufficient data to 
describe them adequately and identify ``specific areas'' with those 
features. Based on the difficulties of determining PCEs, we cannot 
assess the human activities affecting them or the special management 
considerations for their protection. At this time we are not proposing 
to designate coastal or offshore areas, though we do recognize that 
they are important for the Southern Resident killer whales. There is an 
active research program to fill the data gaps regarding coastal and 
offshore distribution and habitat features, and we anticipate obtaining 
additional data in the coming years. We will consider new information 
as it becomes available to inform future considerations of critical 
habitat for Southern Residents.

Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines critical habitat to include 
``specific areas outside the geographical area occupied'' if the areas 
are determined by the Secretary to be ``essential for the conservation 
of the species.'' Regulations at 50 CFR 424.12(e) specify that NMFS 
``shall designate as critical habitat areas outside the geographical 
area presently occupied by a species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.'' At the present time we have not identified any areas outside 
the geographical area occupied by the species that are essential for 
its conservation, and, therefore, we are not proposing to designate any 
unoccupied areas. During the comment period we are requesting 
information on any potential unoccupied areas that may be essential for 
conservation.

Activities That May be Affected

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate, in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect critical

[[Page 34577]]

habitat and, when carried out, funded, or authorized by a Federal 
agency, require an ESA section 7 consultation. Such activities include, 
but are not limited to, fishery management practices, vessel traffic, 
dredging and disposal, sub-marine cable/pipeline installation and 
repair, oil and gas exploration, pollutant discharge, and oil spill 
prevention and response.
    This proposed designation of critical habitat will provide Federal 
agencies, private entities, and the public with clear notification of 
proposed critical habitat for Southern Resident killer whales and the 
boundaries of the habitat. This proposed designation will also assist 
Federal agencies and others in evaluating the potential effects of 
their activities on critical habitat and in determining if ESA section 
7 consultation with NMFS is needed. Consistent with recent agency 
guidance on conducting adverse modification analyses (NMFS, 2005a), we 
will apply the statutory provisions of the ESA, including those in 
section 3 that define ``critical habitat'' and ``conservation,'' to 
determine whether a proposed action might result in the destruction or 
adverse modification of critical habitat.

Application of ESA Section 4(b)(2)

    The foregoing discussion describes the specific areas that fall 
within the ESA section 3(5) definition of critical habitat and are 
eligible for designation as critical habitat. Specific areas eligible 
for designation are not automatically designated as critical habitat. 
Section 4(b)(2) of the ESA requires the Secretary to first consider the 
economic impact, impact on national security, and any other relevant 
impact of designation. The Secretary has the discretion to exclude an 
area from designation if he determines the benefits of exclusion (that 
is, avoiding the impact that would result from designation) outweigh 
the benefits of designation based upon best scientific and commercial 
data. The Secretary may not exclude an area from designation if 
exclusion will result in the extinction of the species. Because the 
authority to exclude is discretionary, exclusion is not required for 
any area.
    The first step in conducting an ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. ESA section 3(5) 
defines critical habitat in terms of ``specific areas,'' and ESA 
section 4(b)(2) requires the agency to consider certain factors before 
designating ``particular areas.'' Depending on the biology of the 
species, the characteristics of its habitat, and the nature of the 
impacts of designation, ``specific'' areas might be different from, or 
the same as, ``particular'' areas. For this designation, we analyzed 
two types of ``particular'' areas. Where we considered economic 
impacts, and weighed the economic benefits of exclusion against the 
conservation benefits of designation, we used the same biologically-
based ``specific'' areas we had identified under section 3(5)(A) (Areas 
1, 2, and 3). This delineation allowed us to most effectively consider 
the conservation value of the different areas when balancing 
conservation benefits of designation against economic benefits of 
designation. Where we considered impacts on national security, however, 
we instead used a delineation of ``particular'' areas based on 
ownership or control of the area. This delineation allowed us to 
compare and balance the benefits of designation and exclusion relative 
to land ownership and management.

Impacts of Designation

    ESA Section 4(b)(2) provides that the Secretary shall consider 
certain impacts before designating critical habitat: ``the Secretary 
shall designate critical habitat * * * on the basis of the best 
scientific data available and after taking into consideration the 
economic impact, impact to national security, and any other relevant 
impact of specifying any particular area as critical habitat.'' The 
primary impact of a critical habitat designation comes from the ESA 
section 7(a)(2) requirement that Federal agencies ensure their actions 
are not likely to result in the destruction or adverse modification of 
critical habitat. Determining this impact is complicated by the fact 
that section 7(a)(2) contains the overlapping requirement that Federal 
agencies must also ensure their actions are not likely to jeopardize 
the species' continued existence. The true impact of designation is the 
extent to which Federal agencies modify their actions to ensure their 
actions are not likely to adversely modify the critical habitat--beyond 
any modifications they would make because of listing and the jeopardy 
requirement. Additional impacts of designation include state and local 
protections that may be triggered as a result of designation, and 
benefits that may arise from education of the public to the importance 
of an area for species conservation. We did not identify state or local 
protections that may be triggered by this proposed designation, but 
have identified educational benefits. We discuss educational benefits 
in the ``Benefits of Designation'' section below.
    We have found it difficult to predict the incremental change in 
Federal agency activities as a result of critical habitat designation 
and the adverse modification prohibition, beyond the changes predicted 
to occur as a result of listing and the jeopardy prohibition. For 
example, in our recent critical habitat designations for salmon and 
steelhead, informed by a Tenth Circuit decision, we considered the 
``co-extensive'' impact of designation--that is, the predicted change 
in agency action as a result of critical habitat designation and the 
adverse modification prohibition, even if the same change would have 
occurred because of listing and the jeopardy prohibition. For the 
present rulemaking, we have again predicted the co-extensive impact of 
designation.
    We examined the types of Federal activities that may affect 
Southern Resident killer whale critical habitat. We identified three 
categories of activities that may affect killer whale critical habitat 
and therefore be subject to ESA section 7's adverse modification 
requirement: Salmon fishing, vessel traffic, and water quality 
management. Because killer whales are newly listed and we lack a 
consultation history, we necessarily had to make assumptions about what 
types of Federal activities might undergo section 7 consultation. We 
next considered the range of modifications we might seek in these 
activities to avoid adverse modification of Southern Resident killer 
whale critical habitat, again making assumptions, given the lack of 
consultation history. We relied on information from our proposed 
conservation plan for the Southern Resident killer whales developed 
under the Marine Mammal Protection Act (70 FR 57565; October 3, 2005), 
comments on that plan, comments on the proposed listing determination, 
and other information available to the agency to establish the types of 
activities and the potential range of changes.
    A draft economic report describes in detail the actions we assumed 
may be affected, the potential range of changes we might seek in those 
actions, and the estimate of economic impacts that might result from 
such changes (NMFS, 2006b). A separate draft ESA 4(b)(2) report 
describes which actions we consider more directly linked to habitat 
effects than species effects, as well as our consideration of benefits 
of designation versus benefits of exclusion (NMFS, 2006c). This report 
also describes the likelihood of an ESA section 7 consultation 
resulting in changes to each type of action. These reports are 
available on the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/. We are soliciting comments on our analysis of 
impacts and their potential benefits and costs.

[[Page 34578]]

Impacts of Designation Generally

    To predict potential impacts of designation, we first identified 
three categories of activities that may affect killer whale critical 
habitat and therefore be subject to ESA section 7 consultation and the 
adverse modification prohibition: Salmon fishing, vessel traffic, and 
water quality management. For salmon fishing, we considered a range of 
potential changes: Reductions in commercial and recreational salmon 
fishing from 5 percent to 50 percent, and closures of fisheries in 
different catch management areas. We could not identify a federal nexus 
for a section 7 consultation on vessel traffic that would relate to the 
effects of vessels on killer whale passage. (The only vessels we 
identified with a section 7 nexus were U.S. vessels, such as military, 
Coast Guard, etc., and ferries, which receive federal funding. However, 
since these vessels do not affect the whales' ability to pass freely 
among areas, we do not anticipate section 7 consultations will have any 
habitat-related impacts on operations of these vessels.) For actions 
related to water quality management, we considered it too speculative 
to predict either the actions that might undergo ESA section 7 
consultation or the types of changes we might seek.
    Where possible, we allocated impacts to each particular area. For 
impacts to salmon fisheries, we did allocate impacts to particular 
areas but recognize that because of the migratory behavior of salmon 
(in contrast to fixed habitat features), designation of any area has 
the potential to affect harvest in other areas.
    In considering potential impacts for each particular area, we kept 
in mind certain analytical limitations resulting in part from our lack 
of a consultation history: Not all activity types are equally likely to 
incur changes as a result of ESA section 7 consultation; all estimates 
are based on potential changes resulting from section 7 consultation, 
regardless of whether the modifications are the result of the 
``jeopardy'' or ``adverse modification'' prohibition of section 7; 
within each activity type, estimates are based on potential changes, so 
there is a wide range of estimated impacts; while some impacts are 
allocated to a particular area, they could result because of other 
areas being designated. Regarding the first two limitations, we have 
attempted in this analysis to weigh impacts of designation according to 
whether they are more or less likely to occur, and whether they are 
more closely associated with jeopardy or adverse modification, as 
described below.
    Regarding the first limitation, we considered each of the activity 
types and how likely it was that a change in a proposed Federal action 
would be required as a result of ESA section 7 consultation. We 
considered some changes to be ``likely'' (it is foreseeable a change 
will occur in most cases); some changes to be ``potential'' (it is 
foreseeable a change will occur but we currently lack data to predict 
with any confidence the nature and extent of the change); or 
``unlikely'' (it is foreseeable a change will not occur in most cases). 
In balancing the benefits of designation against the benefits of 
exclusion, we gave greater weight to changes we considered ``likely'' 
or ``potential'' than to changes we considered ``unlikely.''
    Regarding the overlapping prohibitions of section 7 under the ESA, 
we analyzed each type of activity to determine whether it directly 
affects individual members of the species or affects them through a 
habitat modification (that is, does the activity bear a more direct 
relationship to the jeopardy or adverse modification prohibition of 
section 7?). In balancing the benefits of designation against the 
benefits of exclusion, we gave greater weight to changes we considered 
as having a more direct relationship to adverse modification of 
critical habitat and less weight to changes we considered as having a 
more direct relationship to jeopardy. Table 1 summarizes the nature and 
likelihood of impact for each type of activity, and Table 2 depicts the 
relative weight we gave each impact as a result of these 
considerations. A summary of how we assigned the likelihood, nature of 
impacts, and weights follows the tables.

      Table 1.--Nature and Likelihood of Impact Resulting From ESA Section 7 Consultation, by Activity Type
----------------------------------------------------------------------------------------------------------------
                                       Essential feature
           Activity type              affected  and nature      Type of impact        Likelihood of  section 7
                                           of effect                                           impact
----------------------------------------------------------------------------------------------------------------
Fisheries..........................  --Affects prey.......  Harvest reduction or   Potential
                                     --Potential to impact   change in timing,
                                      individuals and        location, etc. by
                                      habitat modification.  critical habitat
                                                             area.
                                                            Harvest closure by     Unlikely.
                                                             management area.
Water Quality Management--           --Affects prey.......  Changes in NPDES       Potential.
 Contaminants.                       --Stronger connection   standards.
                                      to habitat
                                      modification.
                                                            Changes in sewer and   Potential.
                                                             stormwater runoff
                                                             standards.
Water Quality Management--Oil        --Affects water        Changes in oil spill   Unlikely.
 Spills.                              quality.               regulations.
                                     --Stronger connection
                                      to impact on
                                      individuals.
----------------------------------------------------------------------------------------------------------------


                   Table 2.--Impact of Designation--Relative Weights for Each Type of Activity
                    [Greatest Weight at Top Left of the Matrix, Least Weight at Bottom Right]
----------------------------------------------------------------------------------------------------------------
                                                         Likely (high
                                                            weight)            Potential           Unlikely
----------------------------------------------------------------------------------------------------------------
                      Likelihood of change occurring as a result of section 7 consultation
----------------------------------------------------------------------------------------------------------------
Relationship to section 7:        Adverse             ..................  --Water Quality
 jeopardy vs. adverse              modification                            Management
 modification.                     (high weight).                          (NPDES).
                                                                          --Sewer and
                                                                           stormwater runoff.
                                  Both..............  ..................  --Harvest           --Harvest closure
                                                                           Reduction or        by management
                                                                           Modification.       area.

[[Page 34579]]

 
                                  Jeopardy..........  ..................  ..................  --Changes in oil
                                                                                               spill
                                                                                               regulations.
----------------------------------------------------------------------------------------------------------------

    Salmon Fishing. We considered changes to salmon harvest, either 
through harvest reductions or changes in timing or location of fishing 
effort to be ``potential.'' The limited available information about 
killer whale foraging indicates salmon are their primary prey species 
(NMFS, 2006a). We are therefore likely to focus ESA section 7 
consultations on actions affecting salmon abundance, particularly in 
times and areas where the whales are foraging. There is presently 
little direct information, however, about the interactions between 
salmon harvest and foraging success of whales. Because we presently 
lack information allowing us to predict the nature and extent of any 
changes we might seek, we consider reductions in salmon harvest or 
changes in the location and timing of harvest as ``potential'' impacts 
of section 7 consultation. In contrast, we considered harvest closure 
by management area ``unlikely'' because the management areas are large, 
not necessarily aligned with whale foraging areas, would likely involve 
species that may not be important components of the Southern Residents' 
diet, and could include large numbers of fish that surpass the 
nutritional requirements of the whales for some catch areas.
    We considered fishing to have an equally strong connection to both 
the jeopardy and the adverse modification prohibitions of ESA section 
7. Salmon fishing directly affects individual members of the species by 
reducing the amount of food available, and, therefore, potentially 
affecting the ability of individual animals to meet their nutritional 
requirements. Salmon are also one of the biological features in the 
habitat essential to conservation of the whales, so fishing also 
modifies critical habitat by removing prey. Because changes in 
fisheries through catch reductions or changes in timing and location 
are potential, and because they have a connection to both the jeopardy 
and adverse modification prohibition of section 7, we gave these 
potential changes a moderate weight (see Table 2). We gave area 
management closures a low weight because, while they have a connection 
to both the jeopardy and adverse modification prohibitions, they are 
unlikely.
    Water Quality Management. We considered changes in water quality 
management through changes in NPDES standards or changes in sewer and 
stormwater runoff standards to be ``potential.'' Presently, we lack 
sufficient information about the relationships among the sources of 
contaminants, their movement through the food chain, and their impact 
on killer whales to determine what changes we might seek. Once we have 
more information, however, we anticipate some changes may be required. 
Our ability to estimate impacts of designation is also complicated by 
the fact that the State of Washington has many efforts already underway 
to address water quality issues (PSAT, 2005) and recently announced a 
new Puget Sound Partnership initiative to restore and protect Puget 
Sound. These efforts would presumably be in addition to existing 
requirements under the Clean Water Act and other applicable standards. 
Any new requirements imposed or efforts undertaken by the state and 
local governments would alter the baseline conditions, which we use to 
determine the impacts of designation. We considered changes to oil 
spill regulations unlikely because we believe additional oil spill 
regulations are not needed to meet section 7 requirements.
    Water quality management has the potential to affect individual 
Southern Residents, but is of greatest concern because it may allow 
contaminants to enter the whales' habitat and food chain. When 
ultimately consumed by killer whales, the contaminants can cause 
injury, but the effect is through the whales' prey, an important 
feature of their habitat. Once the contaminants enter the habitat, they 
cause a long-lasting modification of the habitat. This modification 
occurs regardless of whether the whales are present at the time of the 
activity. We therefore consider this the activity with the strongest 
link to the adverse modification prohibition of ESA section 7. Oil 
spills have the potential to modify habitat, but are a primary concern 
because of their potential to directly injure individual animals. We 
considered this activity to have a stronger link to the jeopardy 
prohibition of ESA section 7. Because changes to NPDES standards and 
sewer and runoff standards are potential, and have a strong connection 
to the adverse modification prohibition of section 7, we gave these 
changes a moderate to high weight. We gave changes to oil spill 
regulations a low weight because we consider such changes an unlikely 
result of section 7 consultation and because such changes would be more 
closely linked to jeopardy than to adverse modification.

Benefits of Designation

    The primary benefit of designation is that section 7 of the ESA 
requires all Federal agencies to ensure their actions are not likely to 
destroy or adversely modify the designated habitat. This is in addition 
to the requirement that all Federal agencies ensure their actions are 
not likely to jeopardize the species' continued existence. Another 
benefit of designation is that it provides notice of areas and features 
important to species conservation, and information about the types of 
activities that may reduce the conservation value of the habitat, which 
can be effective for education and outreach. Critical habitat 
designation may also trigger protection under state or local 
regulations.
    In addition to the direct benefits of critical habitat designation 
to the killer whales, there may be ancillary benefits. These other 
benefits may be economic in nature, or they may be expressed through 
beneficial changes in the ecological functioning of Puget Sound. For 
example, Puget Sound supports an active whale watching industry, and so 
an increase in the killer whale population could increase the economic 
value of that activity. Another example could be the increased 
viability of Puget Sound salmon populations if their harvest is reduced 
to assure a larger prey supply for killer whales. Yet another example 
could be reduced levels of pollution in Puget Sound.
    With sufficient information, it may be possible to monetize 
benefits of critical habitat designation. For the direct benefits, this 
would require us to first quantify the benefit to killer whales 
expected from ESA section 7 consultation (for example, the number of 
killer whales saved or the increase in their longevity, health, 
productivity,

[[Page 34580]]

etc.), and then translate that benefit into dollars (for example, using 
information about willingness-to-pay). For the ancillary benefits, 
monetizing benefits would require quantifying the effects of critical 
habitat protection to these other possible sources of benefits, and 
then translating these impacts into dollars.
    We are not aware of any available data that would support either 
step of such an analysis for killer whales. The short statutory 
timeframes and the ESA's requirement to use the best ``available'' 
information suggest such a costly and time-consuming approach is not 
currently possible. In addition, ESA section 4(b)(2) requires us to 
consider and weigh impacts other than economic impacts that are equally 
difficult to monetize, such as the benefits to national security of 
excluding areas from critical habitat. Given the lack of information 
that would allow us either to quantify or monetize the benefits of 
designation for the whales, we have determined the qualitative 
conservation benefits of designating each of the three particular areas 
identified as critical habitat for Southern Residents. In determining 
the benefit of designation for each area, we considered a number of 
factors. We took into account the physical and biological features 
present in the area, the types of human activities occurring in the 
area that may threaten the features, and the likelihood that 
designation would lead to changes in those activities either because of 
an ESA section 7 consultation or because of the educational effect of 
designation. We also considered that each area is unique and supports a 
distinct aspect of the whales' life history. This consideration is 
described in the 4(b)(2) report supporting this proposed rule (NMFS, 
2006c) and summarized below.
    Area 1. This is the particular area where Southern Residents are 
most frequently observed and likely the most important area for their 
conservation. Whales are observed feeding, socializing, traveling and 
resting in Area 1. The Strait of Juan de Fuca and the Haro and Georgia 
Straits are relatively narrow channels that concentrate salmon 
returning from the Pacific Ocean to spawn in U.S. and Canadian rivers. 
In particular, Area 1 lies near the mouth of the Fraser River, which 
has the largest salmon runs in the Georgia Basin/Puget Sound region 
(Northcote and Atagi, 1997). Runs of salmon passing through the area 
include Chinook, chum, coho, pink, and sockeye, which have all been 
identified as prey for Southern Residents (Ford et al., 1998; Ford and 
Ellis, 2005; NWFSC, unpubl. data).
    Killer whales require abundant prey for successful foraging. 
Designation of Area 1 as critical habitat is likely to improve the 
ability of an ESA section 7 consultation to focus on salmon abundance 
as an essential biological feature of the whales' habitat. It is also 
likely to improve the ability of a section 7 consultation to affect 
water quality management activities, though we have little information 
at this time to predict what those actions may be and how such actions 
may be changed as a result of section 7 consultation.
    There is little likelihood that an ESA section 7 consultation would 
affect vessel traffic in Area 1, but we believe critical habitat 
designation may provide significant conservation benefits to killer 
whales, particularly in Area 1 because of its educational value for the 
large numbers of boaters and whale watchers. If we can highlight that 
the area is ``critical habitat'' for the whales, it will strengthen the 
messages to boaters about operating their vessels responsibly in the 
area. Table 3 illustrates the various factors we considered in weighing 
the benefit of designation for Area 1.

                                   Table 3.--Benefit of Designation for Area 1
----------------------------------------------------------------------------------------------------------------
                                                       Frequency/        Weights of
             PCEs                    Threats         Importance of    impacts based on  Likelihood of  education
                                                        threats            Table 2              benefits
----------------------------------------------------------------------------------------------------------------
Water quality.................  Oil spills.......  High.............  Low.............
Prey..........................  Water quality....  Moderate.........  Mod-High........
                                Fishing..........  High.............  Moderate........
Passage.......................  Physical presence  High.............  ................  High.
                                 of vessels.
----------------------------------------------------------------------------------------------------------------

    Area 2. Southern Resident killer whales have been seen in parts of 
Area 2 in all seasons, but they use Area 2 more in the fall than in the 
summer. They likely move into this area to take advantage of chum and 
Chinook runs as their occurrence in the area has been correlated with 
fall salmon runs. Feeding has been observed in Area 2 (NWFSC, unpubl. 
data), although few behavioral studies have been conducted in this 
area. The J pod in particular expands into this area in the fall 
(Osborne, 1999), and a fall chum run has been suggested as the likely 
reason for an extended presence of members of L pod in Dyes Inlet 
during October and November of 1997.
    Area 2 may be less important than Area 1 to killer whale 
conservation. There are fewer sightings of whales in this area, 
particularly south of the Tacoma Narrows bridge, and salmon stocks are 
not as abundant as in Area 1. Nevertheless, late salmon runs appear to 
provide needed prey during the fall, particularly for J pod. As with 
designation of Area 1, designation of Area 2 as critical habitat is 
likely to improve the ability of an ESA section 7 consultation to focus 
on salmon abundance as a habitat feature. It may also improve the 
ability of a section 7 consultation to affect water quality management 
activities. Though we have little information at this time to predict 
what those actions may be and how they may be changed as a result of 
section 7 consultation, it is clear that water quality in Area 2 is the 
most impaired of all three areas.
    There is little likelihood that a section 7 consultation would 
affect vessel traffic in Area 2, but we believe critical habitat 
designation may provide some conservation benefits to killer whales in 
this area because of its educational value for boaters. Interference 
with the whales from vessels is not as great a concern in Area 2 as in 
Area 1, but it is still an important concern because of the large 
number of recreational vessels in this area and the potential for 
disturbance. Table 4 illustrates the various factors we considered in 
weighing the benefit of designation for Area 2.

[[Page 34581]]



                                   Table 4.--Benefit of Designation for Area 2
----------------------------------------------------------------------------------------------------------------
                                                       Frequency/        Weights of
             PCEs                    Threats         Importance of    impacts based on  Likelihood of  education
                                                        threats            Table 2              benefits
----------------------------------------------------------------------------------------------------------------
Water quality.................  Oil spills.......  High.............  Low.............
Prey..........................  Water quality....  High.............  Mod-High........
                                Fishing..........  High.............  Moderate........
Passage.......................  Physical presence  Moderate.........  ................  Moderate.
                                 of vessels.
----------------------------------------------------------------------------------------------------------------

    Area 3. Area 3 provides needed passage for Southern Residents from 
the interior waters of Puget Sound to coastal waters. Although the 
whales may also feed as they transit this area, the most important 
habitat feature of this area is passage. Sightings of the Southern 
Residents in Area 3 are limited, particularly on the U.S. side of the 
international boundary as there is little observation effort in the 
area, particularly to the west near the Bonilla Point/Tatoosh Island 
line. Even with a small number of actual sightings we can infer that 
the whales are using this corridor and the passage is an essential 
feature of Area 3 based on the inland and coastal sightings of whales. 
The Strait of Juan de Fuca is not the only transit corridor between 
inland waters and coastal British Columbia; the whales occasionally use 
the Strait of Georgia and Johnstone Strait in Canadian waters as an 
alternate route.
    It is difficult to compare the importance of this area to Areas 1 
and 2 because the whales use the areas for different activities. 
Designation of Area 3 as critical habitat may provide less benefit than 
designation of Areas 1 or 2. It may improve the ability of a section 7 
consultation to affect water quality management activities, though we 
have little information at this time to predict what those actions may 
be and how they may be changed as a result of section 7 consultation. 
Water quality in Area 3 is the least impaired of all three areas. 
Although there are limited observations in this area, it appears that 
the Southern Residents do not stop and feed here, but primarily use 
this area for transit. Table 5 illustrates the various factors we 
considered in weighing the benefit of designation for Area 3.

                                   Table 5.--Benefit of Designation for Area 3
----------------------------------------------------------------------------------------------------------------
                                                       Frequency/        Weights of
             PCEs                    Threats         Importance of    impacts based on  Likelihood of  education
                                                        threats            Table 2              benefits
----------------------------------------------------------------------------------------------------------------
Water quality.................  Oil spills.......  High.............  Low.............
Prey..........................  Water quality....  Moderate.........  Mod-High........
                                Fishing..........  Moderate.........  Moderate........
Passage.......................  Physical presence  Low..............  ................  Low.
                                 of vessels.
----------------------------------------------------------------------------------------------------------------

Determining the Benefits of Excluding Particular Areas and Balancing 
the Benefits of Designation Against the Benefits of Exclusion

    Section 4(b)(2) of the ESA calls for balancing the benefits of 
designation against the economic, national security, and other benefits 
of exclusion. We recognize that, in reality, excluding an area from 
designation will not likely avoid all of the impacts we considered, 
because the ESA section 7 requirement regarding jeopardy still applies, 
just as designating an area provides protection that overlaps with that 
afforded by the section 7 jeopardy prohibition. To determine the 
benefits of excluding particular areas, we considered the previously-
discussed Federal activities that could be changed as a result of a 
section 7 consultation and application of the adverse modification 
prohibition. We considered changes to those actions that could 
potentially be required to avoid adversely modifying critical habitat, 
regardless of whether the changes could also potentially be required to 
avoid jeopardizing the whales' continued existence. We also considered 
economic benefits of excluding each of the three ``particular'' areas 
and considered national security benefits of excluding the 18 
``particular'' areas delineated based on military ownership or control.
    ESA section 4(b)(2) calls for balancing the benefits that are not 
directly comparable--the benefit associated with species conservation 
balanced against the economic benefit, benefit to national security, or 
other relevant benefit that results if an area is excluded from 
designation. ESA section 4(b)(2) does not specify a method for the 
weighing process. Agencies are frequently required to balance benefits 
of regulations against impacts; Executive Order (E.O.) 12866 
established this requirement for Federal agency regulation. Ideally 
such a balancing would involve first translating the benefits and 
impacts into a common metric. Executive branch guidance from the Office 
of Management and Budget (OMB) suggests that benefits should first be 
monetized (converted into dollars). Benefits that cannot be monetized 
should be quantified. Where benefits can be neither monetized nor 
quantified, agencies are to describe the expected benefits (U.S. Office 
of Management and Budget, Circular A-4, September 17, 2003 (OMB, 
2003)).

Economic Impacts (Economic Benefits of Exclusion)

    A draft economic report describes in detail the actions we assumed 
may be affected, the potential range of changes we might seek in those 
actions, and the estimate of economic impacts that might result from 
such changes. We considered a range of potential modifications to 
fishing in Puget Sound (described above) and developed an expected 
direct cost for changes at each end of the range as well as in some 
cases for intermediate points within the range. We considered it too 
speculative at this time to postulate likely consultations on water 
quality management actions, and what changes we might seek in those 
actions. The results of our analysis are contained in a draft economic 
report (NMFS, 2006b) supporting this proposed rule and are summarized 
below. Although the range of potential impacts is large, we consider it 
unlikely that the extreme ends of the range will be achieved. The 
extreme ends of the range (for all impacts in a category) assume that 
every project or action

[[Page 34582]]

consulted on would have the lowest or highest possible cost for that 
type of action. This outcome is highly unlikely, as projects are likely 
to have a distribution of costs within the low-high range. Further, 
because we lack information on the likely distribution of costs across 
projects, we believe it is reasonable to construct a range of costs for 
each area.
    Regarding impacts from changes to water quality management 
activities, we are aware of many of the programs currently in place to 
restore and protect Puget Sound (PSAT, 2005), and we intend to 
coordinate with the State of Washington and other Federal agencies 
between the publication of this proposed rule and the final rule, to 
obtain better information on current and proposed programs. We will use 
this information to account for any changes in State programs or 
requirements that may alter the baseline conditions and to better 
estimate economic impacts of designation for the final rule.
    Tables 6 through 8 illustrate the potential range of economic 
benefits of exclusion for each area, both by activity category and by 
total for the area. For activity categories where there were two 
mutually exclusive options, we selected the more likely option. Thus, 
for salmon fishing, the more likely option is harvest reduction or 
changes in area and timing, rather than closure of management areas. 
The tables also display the weight we gave each activity, which is 
relevant to our consideration of costs for each area. As described in 
the draft economics report (NMFS 2006c), the total range of estimated 
economic impacts for this proposed designation is $1,007,000-
$10,071,000. (This number is slightly lower than the sum of the impacts 
shown in Tables 6-8 due to rounding.)

                               Table 6.--Economic Benefit of Exclusion for Area 1
                                                  [in $1,000s]
----------------------------------------------------------------------------------------------------------------
             Activity type                      Type of impact                   Weight                Range
----------------------------------------------------------------------------------------------------------------
Salmon Fisheries......................  Harvest reduction or change in  Moderate................       305-3,055
                                         timing or location.
Water Quality Management..............  NPDES standards...............  Moderate-High...........              NA
                                        Sewer and stormwater runoff...  Moderate-High...........              NA
                                        Oil spills....................  Low.....................               0
                                       -------------------------------------------------------------------------
    Total.............................  ..............................  ........................       305-3,055
----------------------------------------------------------------------------------------------------------------


                               Table 7.--Economic Benefit of Exclusion for Area 2
                                                  [in $1,000s]
----------------------------------------------------------------------------------------------------------------
             Activity type                      Type of impact                   Weight                Range
----------------------------------------------------------------------------------------------------------------
Salmon Fisheries......................  Harvest reduction or change in  Moderate................       466-4,660
                                         timing or location.
Water Quality Management..............  NPDES standards...............  Moderate-High...........              NA
                                        Sewer and stormwater runoff...  Moderate-High...........              NA
                                        Oil spills....................  Low.....................               0
                                       -------------------------------------------------------------------------
    Total.............................  ..............................  ........................       466-4,660
----------------------------------------------------------------------------------------------------------------


                               Table 8.--Economic Benefit of Exclusion for Area 3
                                                  [in $1,000s]
----------------------------------------------------------------------------------------------------------------
             Activity type                      Type of impact                   Weight                Range
----------------------------------------------------------------------------------------------------------------
Salmon Fisheries......................  Harvest reduction or change in  Moderate................       236-2,357
                                         timing or location.
Water Quality Management..............  NPDES standards...............  Moderate-High...........              NA
                                        Sewer and stormwater runoff...  Moderate-High...........              NA
                                        Oil spills....................  Low.....................               0
                                       -------------------------------------------------------------------------
    Total.............................  ..............................  ........................       236-2,357
----------------------------------------------------------------------------------------------------------------

    Section 4(b)(2) of the ESA requires that we balance the benefit of 
designation against the economic benefit of exclusion for each 
particular area. The co-extensive benefit to the species of designation 
depends upon the inherent conservation value of the area, the 
seriousness of the threats to that conservation value, and the extent 
to which an ESA section 7 consultation or the educational aspects of 
designation will address those threats. If a threat bears a closer 
relationship to the adverse modification prohibition of section 7, we 
can begin to understand and give weight to the incremental benefit of 
designation beyond the protection provided by listing and the jeopardy 
prohibition. We have identified the threats that face each area and the 
likelihood that the adverse modification prohibition will enhance our 
ability to address those threats.
    We listed the whales as endangered, citing, among other reasons, 
``the ongoing and potentially changing nature of pervasive threats, in 
particular, disturbance from vessels, the persistence of legacy toxins 
and the addition of new ones into the whales' environment, and the 
potential limits on prey availability (primarily salmon) given 
uncertain future ocean conditions.'' As described above, designation of 
critical habitat will enhance our ability to address some of these 
threats, either through an ESA section 7 consultation or through 
ongoing public outreach and education. Because some of these threats 
bear a stronger relationship to adverse modification than to jeopardy, 
we also believe there is an incremental benefit of designation beyond 
the protection afforded by the jeopardy prohibition.
    The benefit of designation also depends on the inherent 
conservation value of the area. The habitat areas for these killer 
whales are unique and irreplaceable. It is difficult to separate the 
value of any one of the areas: each of the three areas supports a 
distinct aspect of the whales' life history, and the conservation 
function of each area complements the conservation function of the 
others. Therefore, designation of each particular area benefits the

[[Page 34583]]

conservation function of the other areas. For all of the reasons 
discussed above, we consider the benefit of designation of each area to 
be high.
    The benefit of exclusion of an area depends on some of the same 
factors--the likelihood of an ESA section 7 consultation and the extent 
to which an activity is likely to change as a result of that 
consultation. As with the benefit of designation side of the equation, 
if a threat bears a closer relationship to the adverse modification 
prohibition of section 7, we can begin to understand and give weight to 
the incremental cost of designation (benefit of exclusion) beyond the 
cost associated with listing and the jeopardy prohibition. In balancing 
the potential costs of designation, we also considered the nature of 
the threats and the relevance of section 7's adverse modification 
prohibition to each threat. Because adverse modification and jeopardy 
bear an equally strong relationship to fishing, and because some 
changes in fishing are likely as a result of consultation, we gave 
these costs of designation moderate weight. We recognize that adverse 
modification bears the strongest relationship to water quality 
management, but we presently lack sufficient data to estimate an 
economic impact. We also recognize that we have not monetized 
(quantified) the costs that may be associated with the education 
benefit of designation with respect to vessel traffic.
    We conclude that the economic benefits of excluding each particular 
area do not outweigh the conservation benefits of designating each 
particular area as critical habitat, given the endangered status of the 
whales, the uniqueness of the habitat, the fact that threats to habitat 
were a primary concern leading to our endangered finding, and the fact 
that designation will enhance the ability of an ESA section 7 
consultation to protect the habitat.
    We will seek further information, including public comment and 
information from other Federal agencies, on important and relevant 
aspects of this economic analysis to better understand economic impacts 
before a final designation. These include a better understanding of the 
potential impacts of designation on water quality management 
activities.

Impacts on National Security

    Prior to listing Southern Resident killer whales under the ESA, we 
contacted the DoD by letter and identified 18 military sites, 
previously addressed during salmon and steelhead habitat designations, 
that potentially overlapped with areas under consideration for Southern 
Resident killer whale critical habitat: (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; and (18) Crescent Harbor 
Explosive Ordnance Units Training Area.
    These 18 sites overlap with areas we found to meet the definition 
of critical habitat for the Southern Resident killer whale DPS. These 
sites include shore-based facilities and offshore areas in Puget Sound 
where the Navy has security restrictions. Because of mapping 
imprecision, we cannot determine the extent to which the shore-based 
facilities may extend into 20-foot (6.1 m) deep waters of Puget Sound, 
and, therefore, the exact amount of overlap with proposed killer whale 
critical habitat. There are, however, sites that clearly include waters 
deeper than 20 feet (6.1 meters). The 18 sites, including open marine 
areas associated with these sites, cover approximately 112 square miles 
(291 sq km) out of the total 2,676 square miles (6,931 sq km) under 
consideration as critical habitat for Southern Residents. The shore-
based sites cover 81 miles (130 km) of shoreline out of the total 2,081 
miles (3,349 km) of shoreline in the proposed critical habitat areas.
    The DoD confirmed that the 18 sites are owned or controlled by the 
DoD, identified the types of military activities that take place in the 
areas, and provided an assessment as to whether designation of critical 
habitat would affect military readiness. The Army and Navy concluded 
that critical habitat designation at any of these sites would likely 
impact national security by diminishing military readiness. The DoD 
requested that we consider conducting an ESA section 4(b)(2) analysis 
to determine whether all of the sites could be excluded from 
designation because the benefits of exclusion outweigh the benefits of 
designation. The possible impacts to national security include: 
preventing, restricting, or delaying training or testing exercises or 
access to sites; restricting or delaying activities associated with 
vessel/facility maintenance and ordnance loading; and delaying response 
times for ship deployments and overall operations.
    The benefit of excluding these particular areas is that the Navy 
would only be required to comply with the jeopardy prohibition of ESA 
section 7(a)(2) and not the adverse modification prohibition. The Navy 
maintains that the additional commitment of resources in completing an 
adverse modification analysis, and any change in its activities to 
avoid adverse modification of critical habitat, would likely reduce its 
readiness capability. Given that the Navy is currently actively engaged 
in training, maintaining, and deploying forces in the current war 
effort, this reduction in readiness could reduce the ability of the 
military to ensure national security.
    We assessed the benefit of designating these areas of overlap based 
on: the physical or biological features of each area, the Southern 
Residents' use of each area (including how frequently they are 
present), the Federal activities in each area that might trigger an ESA 
section 7 consultation, the likelihood that we would seek a 
modification of those activities, and the strength of the connection 
between those activities and habitat modification. The benefit of 
designation is that the section 7 requirement regarding adverse 
modification would focus our section 7 consultations on essential 
physical and biological features of the whales' habitat, particularly 
where the Federal activity has a more direct impact on habitat features 
and a less direct impact on individual killer whales.
    We considered the overlap of killer whale habitat within the 
boundaries of military sites; the conservation value of that habitat; 
and the types of Federal activities in those areas that would likely 
undergo ESA section 7 consultation. We also considered the high 
priority placed on national security, the potential for critical 
habitat designation to have some impact on military readiness, and the 
fact that, collectively, these areas represent relatively small 
percentages of the total habitat and none of them are located in Area 
1, the core summer area. Based on our consideration of these factors, 
we concluded that the national security benefits of exclusion outweigh 
the conservation benefits of designation for each of the 18 sites, and 
we are not proposing to designate these DoD sites as critical habitat.

[[Page 34584]]

Other Relevant Impacts

    We did not identify other relevant impacts of designation beyond 
economic impacts and impacts on national security. In this proposed 
rule, we are seeking information on such impacts.

Critical Habitat Designation

    We are proposing to designate approximately 2,564 square miles 
(6,641 km) of marine habitat within the area occupied by Southern 
Resident killer whales in Washington. Although areas with water less 
than 20 feet (6.1 meters) deep are not proposed for critical habitat, 
these shallow areas have not been subtracted from the estimate of 
square mileage, so it is an overestimate. The proposed 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. Some of these areas overlap 
with military sites, which are not proposed for designation because 
they were determined to have national security impacts that outweigh 
the benefit of designation and are therefore being excluded under ESA 
section 4(b)(2). We determined that the economic benefits of exclusion 
of any of the areas do not outweigh the benefits of designation, and we 
are therefore not proposing to exclude 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 recommending 
exclusion of only a small percentage of the whales' habitat because of 
impacts to national security. Given this small percentage, we conclude 
that the exclusion of these areas will not result in extinction of the 
Southern Resident killer whale DPS. No unoccupied areas are currently 
proposed for designation of critical habitat.

Public Comments Solicited

    We request that interested persons submit comments, information, 
maps, and suggestions concerning this proposed rule during the comment 
period (see DATES). We are soliciting comments or suggestions from the 
public, other concerned governments and agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. Comments particularly are sought concerning:
    (1) Maps and specific information describing the amount, 
distribution, and use type (e.g., feeding, migration, resting) of 
Southern Resident killer whales in inland and coastal waters, including 
shallow areas with less than 20 feet (6.1 m) of water;
    (2) Information on the identification, location, and quality of 
physical or biological features which may be essential to the 
conservation of Southern Resident killer whales, including information 
on sound as a PCE;
    (3) Information regarding potential impacts of designating any 
particular area, including the types of Federal activities that may 
trigger an ESA section 7 consultation and the possible modifications 
that may be required of those activities as a result of section 7 
consultation. In particular, we are seeking information on water 
quality management activities that may trigger section 7 consultation, 
potential modifications of those activities, and estimated costs of 
those modifications;
    (4) Information regarding the benefits of designating any 
particular area of the proposed critical habitat;
    (5) Information regarding the benefits of excluding particular 
areas from the critical habitat designation;
    (6) Current or planned activities in the areas proposed for 
designation and their possible impacts on proposed critical habitat; 
and
    (7) Any foreseeable economic or other potential impacts resulting 
from the proposed designations.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES). The proposed rule, map, 
fact sheets, references, and other materials relating to this proposal 
can be found on the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/. We will consider all comments and information 
received during the comment period in preparing the final rule. 
Accordingly, the final decision may differ from this proposal.

Public Hearings

    50 CFR 424.16(c)(3) requires the Secretary to promptly hold at 
least one public hearing if any person requests one within 45 days of 
publication of a proposed rule to designate critical habitat. Such 
hearings provide the opportunity for interested individuals and parties 
to give comments, exchange information and opinions, and engage in a 
constructive dialogue concerning this proposed rule. We encourage the 
public's involvement in such ESA matters. Based on the level of public 
interest in Southern Resident killer whales, public meetings have been 
scheduled for July 12, 2006, 7-9 p.m., at the Seattle Aquarium, 
Seattle, WA and for July 13, 2006, 7-9 p.m., at the Whale Museum, 
Friday Harbor, WA. Requests for additional public hearings must be made 
in writing (see ADDRESSES) by July 31, 2006.

Peer Review

    OMB issued its Final Information Quality Bulletin for Peer Review 
on December 16, 2004. The Bulletin went into effect June 16, 2005, and 
generally requires that all ``influential scientific information'' 
disseminated on or after that date be peer reviewed. A scientific 
document supports this proposal to designate critical habitat for 
Southern Resident killer whales--a draft Biological Report (NMFS, 
2006a), which is available on our Web site (see ADDRESSES). We obtained 
independent peer review of this document and incorporated the peer 
review comments into the document prior to its dissemination in support 
of this rulemaking. A draft Economic Analysis (NMFS, 2006b) that 
supports the proposal to designate critical habitat for Southern 
Resident killer whales was also peer reviewed and is available on our 
Web site (see ADDRESSES).

Required Determinations

Regulatory Planning and Review

    We have determined this proposed rule to be significant for 
purposes of E.O. 12866. A draft economic report and ESA section 4(b)(2) 
report document our consideration of alternatives to rulemaking as 
required by this E.O.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    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 have prepared an 
initial regulatory flexibility analysis, which is part of the draft 
Economic Analysis and available on our Web site (NMFS, 2006b). The 
analysis is summarized below.
    A description of the reasons why this action is being considered, 
as well as a statement of the objectives of, and legal basis for, this 
proposed rule is provided earlier in the preamble and is not repeated 
here. This proposed rule will not impose any recordkeeping or reporting 
requirements and will not duplicate, overlap, or conflict with any 
other laws or regulations.

[[Page 34585]]

    At the present time, insufficient information exists regarding the 
cost structure and operational procedures and strategies in the sectors 
that may be directly impacted by the potential critical habitat 
designation. Further, significant uncertainty exists regarding the 
activities that may trigger an ESA section 7 consultation or how those 
activities may be modified as a result of consultation. Bearing in mind 
these limitations, we considered which of the potential economic 
impacts we analyzed might affect small entities. These estimates should 
not be considered exact estimates of the impacts of potential critical 
habitat to individual businesses.
    There are 344 entities engaged in fishing activities in the region, 
332 of which are considered ``small entities.'' Assuming reductions in 
catch, the annual impact across all regulated fishers may range from $1 
million for a 5 percent reduction in catch to $10.1 million for a 50 
percent reduction. Closing particular catch areas would have impacts 
ranging from $29,000 to $7.1 million, depending on the Catch Area 
closed.
    Although ESA section 7 consultations may also occur on water 
quality management activities, at this time it is too speculative to 
estimate the type and number of activities and the potential 
modifications that could result from a consultation.
    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 and rejected the alternative of not designating 
critical habitat for Southern Resident killer whales because such an 
approach does not meet the legal requirements of the ESA. We also 
rejected an alternative in which some or all of the critical habitat 
areas are excluded under the section 4(b)(2) authority because we did 
not find that the economic benefits of exclusion outweigh the 
conservation benefits of designation.

E.O. 13211

    On May 18, 2001, the President issued an E.O. on regulations that 
significantly affect energy supply, distribution, and use. E.O. 13211 
requires agencies to prepare Statements of Energy Effects when 
undertaking any action that promulgates or is expected to lead to the 
promulgation of a final rule or regulation that (1) is a significant 
regulatory action under E.O. 12866 and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy and find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above (NMFS, 2006b).

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, NMFS makes the 
following findings:
    (a) This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute or 
regulation that would impose an enforceable duty upon state, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to state, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the state, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement.) ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.'' The designation of critical habitat does 
not impose a legally binding duty on non-Federal government entities or 
private parties. Under the ESA, the only regulatory effect is that 
Federal agencies must ensure that their actions do not destroy or 
adversely modify critical habitat under section 7. While non-Federal 
entities which receive Federal funding, assistance, permits or 
otherwise require approval or authorization from a Federal agency for 
an action may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Furthermore, to the extent that 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 this species both within 
and outside of the designated areas, we do not anticipate that this 
proposed rule will significantly or uniquely affect small governments. 
As such, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630, the proposed rule does not have 
significant takings implications. A takings implication assessment is 
not required. The designation of critical habitat affects only Federal 
agency actions. Private lands do not exist within the proposed critical 
habitat and therefore would not be affected by this action.

Federalism

    In accordance with E.O. 13132, this proposed rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of Commerce policies, we request 
information from, and will coordinate development of this proposed 
critical habitat designation with, appropriate state resource agencies 
in Washington. The proposed designation may have some benefit to state 
and local resource agencies in that the areas essential to the 
conservation of the species are more clearly defined, and the PCEs of 
the habitat necessary for the survival of the Southern Resident killer 
whales are specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist local governments in long-range 
planning (rather than waiting for case-by-case ESA section 7 
consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988, the Department of Commerce has 
determined that this proposed rule does not unduly burden the judicial 
system

[[Page 34586]]

and meets the requirements of sections 3(a) and 3(b)(2) of the E.O. We 
are proposing to designate critical habitat in accordance with the 
provisions of the ESA. This proposed rule uses standard property 
descriptions and identifies the PCEs within the designated areas to 
assist the public in understanding the habitat needs of Southern 
Resident killer whales.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. This proposed rule will not impose recordkeeping or 
reporting requirements on state or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act of 1969 (NEPA)

    NMFS has determined that an environmental analysis as provided for 
under NEPA for critical habitat designations made pursuant to the ESA 
is not required. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995), cert. denied, 116 S.Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    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 the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. E.O. 
13175--Consultation and Coordination with Indian Tribal Governments--
outlines the responsibilities of the Federal Government in matters 
affecting tribal interests.
    None of the proposed critical habitat occurs on tribal lands. 
However, proposed critical habitat does overlap with Usual and 
Accustomed hunting and fishing grounds. The proposed designation of 
critical habitat for Southern Resident killer whales has the potential 
to affect tribal trust resources, particularly in relation to salmon, 
an important tribal resource and PCE for the whales. We will continue 
to consult with affected tribes regarding this proposal to designate 
critical habitat.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://www.nwr.noaa.gov/ and is available upon 
request from the NMFS office in Seattle, Washington (see ADDRESSES.)

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: June 7, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, we propose to amend part 
226, title 50 of the Code of Federal Regulations as set forth below:

PART 226--[AMENDED]

    1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

    2. Add 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 textual descriptions of 
critical habitat in this section are the definitive source for 
determining the critical habitat boundaries. The overview map is 
provided for general guidance purposes only, and not as a definitive 
source for determining critical habitat boundaries.
    (a) Critical Habitat Boundaries. 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 deeper than 20 feet (6.1 m) relative to a 
contiguous shoreline delimited by the line of extreme high water in 
each of the following areas:
    (1) 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.)
    (2) 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.
    (3) 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.
    (b) An overview map of proposed critical habitat for Southern 
Resident killer whales follows.


[[Page 34587]]


[GRAPHIC] [TIFF OMITTED] TP15JN06.055


[[Page 34588]]


    (c) Primary Constituent Elements. The primary constituent elements 
essential for conservation of the Southern Resident killer whales are:
    (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.
    (d) Sites owned or controlled by the Department of Defense. 
Critical habitat does not include the following areas owned or 
controlled by the Department of Defense, or designated for its use, in 
the State of Washington:
    (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; 
and
    (18) Crescent Harbor Explosive Ordnance Units Training Area.

[FR Doc. 06-5439 Filed 6-14-06; 8:45 am]
BILLING CODE 3510-22-P