[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Notices]
[Pages 62961-62965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25101]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI77


Marine Mammal Protection Act; Final Conservation Plan for the 
Cook Inlet Beluga Whale

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

ACTION:  Notice; response to comments.

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

SUMMARY:  NMFS announces the availability of the final conservation 
plan for the Cook Inlet Beluga Whale pursuant to the Marine Mammal 
Protection Act of 1972, as amended (MMPA). NMFS incorporated into this 
document new information on Cook Inlet beluga whales and comments 
received on the draft conservation plan released for public review and 
comment on March 16, 2005.

[[Page 62962]]


ADDRESSES:  The conservation plan is available on the Internet at the 
following address: http://www.alaskafisheries.noaa.gov/protectedresources/whales/beluga/management.htm. Copies of the 
conservation plan may be reviewed and/or copied at NMFS, Protected 
Resources Division, 222 W. 7th Ave., Room 517, Anchorage, AK 99513; or 
at NMFS, Alaska Regional Office, Protected Resources Division, 709 W. 
9th St., Juneau, AK 99802.

FOR FURTHER INFORMATION CONTACT:  Mandy Migura, NOAA/NMFS, Alaska 
Region, Anchorage Field Office, (907) 271-5006, or Kaja Brix, NOAA/
NMFS, Alaska Region, (907) 586-7235.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA requires NMFS to prepare a conservation plan to promote 
the conservation and recovery of any species or stock designated as 
depleted. The Cook Inlet beluga whale stock declined by nearly 50 
percent from 1994 to 1998. In response to this significant decline, 
NMFS designated the Cook Inlet beluga as depleted under the MMPA on May 
31, 2000 (64 FR 34580). A draft conservation plan was released for 
public review and comment on March 16, 2005 (70 FR 12853). This 
conservation plan incorporates new information on Cook Inlet beluga 
whales as well as information and suggestions received from the public, 
State, Federal and municipal agencies, Alaska Natives, industry and 
environmental groups. The goal of this conservation plan is restore the 
Cook Inlet beluga whale population to its optimum sustainable 
population (OSP). The conservation strategy NMFS developed to attain 
this goal has four components: (1) improve our understanding of the 
biology of Cook Inlet beluga whales and the factors limiting the 
population's growth; (2) stop direct losses to the population; (3) 
protect valuable habitat; and (4) evaluate the effectiveness of these 
strategies and the success of the conservation actions in restoring the 
Cook Inlet beluga whale population. The Plan will be reviewed and 
updated every five years. The goal of the Plan will be met when the 
depleted designation for Cook Inlet beluga whales can be removed.

Comments and Responses

    NMFS received 115 letters of comment on the draft conservation plan 
for the Cook Inlet beluga whale. Substantive comments of a similar 
nature are consolidated, grouped by subject and responded to below.
    NMFS received suggestions regarding editorial and format changes to 
the draft conservation plan. Generally, these suggestions regarding 
editorial and format changes were accepted, and the plan has been 
modified accordingly. Substantive comments are summarized and addressed 
in this notice.
    Comment 1: More than one hundred commenters advocated habitat 
protection. Comments varied with some recommending development 
prohibition in Type 1 habitat, prevention of oil and gas activities in 
Type 1 and 2 habitats, providing for discrete protected areas, and 
broadening Type 1 and 2 habitat areas. One commenter said NMFS failed 
to recommend measures that adequately protect these key beluga feeding 
and breeding areas. Comments also expressed concern about specific 
development projects such as Knik Arm Bridge, Coastal Trail, Port of 
Anchorage expansion, Campbell Creek, and coastal development. Many 
commenters urged additional habitat research.
    Response: NMFS believes habitat protection to be one of the 
principal actions needed to recover this population to its OSP. The 
conservation plan outlines what we believe to be appropriate 
conservation actions associated with varying habitat types as 
determined by specific habitat characteristics and frequency and timing 
of use by Cook Inlet beluga whales.
    Beluga habitat use was ascertained by examining long-term data 
derived from intensive annual aerial surveys conducted from 1993-2007, 
monthly surveys from June 2001 to June 2002, aerial surveys in August 
2006 and August 2007, traditional knowledge gathered through interviews 
with Cook Inlet beluga hunters, habitat modeling, Cook Inlet aerial 
surveys conducted by other government agencies (Alaska Department of 
Fish and Game and Minerals Management Service), satellite tracking of 
14 beluga whales, stranding data, archeological studies, opportunistic 
reports, and other scientific study reports.
     The final conservation plan has reexamined and updated habitat 
information and valuable habitat types. Additional information was 
incorporated into the definitions of habitat types I, II and III from 
NMFS analyses and from surveys conducted for the Knik Arm Bridge and 
Toll Authority and the Port of Anchorage. Important habitat has been 
identified and will be reassessed periodically when new data are 
gathered, the population recovers, or as habitat changes over time. 
Habitat classifications and corresponding management goals will be 
reassessed as this conservation plan is periodically updated.
    Response to proposed habitat alterations will vary according to the 
sensitivity of the habitat.
    Comment 2: NMFS should prioritize actions, and fully fund and 
identify funding sources for the research plan set forth in the draft 
conservation plan. Two commenters requested that NMFS ask Congress for 
$20M per year during the next five years to manage and research the 
Cook Inlet beluga whale stock. Four commenters recommended that a 
``team'' of experts convene a workshop to review the priorities and 
funding needs for Cook Inlet beluga recovery.
    Response: Priorities for research and management projects were 
updated in the final conservation plan. Costs for various activities 
have been estimated, but identifying funding sources is outside the 
scope of this document. Current NMFS funding supports annual abundance 
surveys and co-management activities. The conservation plan takes a 
comprehensive look at identifying funding needs and will be used 
(adaptively) to set regional management and research priorities.
    Comment 3: The draft conservation plan failed to address non-
hunting impacts on belugas and their important habitats, including 
pollution, noise, oil and gas development, aviation impacts, sewage, 
military activities, coastal development, and food supplies, among 
other things.
    Response: Subsistence hunting was a major contributing factor in 
the Cook Inlet beluga decline during the 1990s. The long-term harvest 
regulatory process will be finalized in 2008. NMFS agrees that research 
and management should address non-hunting impacts and expanded these 
aspects in the conservation plan. The threats discussion has been 
updated in the final conservation plan to address the concerns from 
these commenters.
    Comment 4: More detail is needed on the overview of Cook Inlet 
beluga whales.
    Response: NMFS has updated and expanded the background information 
on Cook Inlet beluga whales. NMFS will continue to use and gather the 
best available information on Cook Inlet belugas and provide that 
information to the public through updates to the conservation plan.
    Comment 5: Discrete action thresholds need to be provided which 
describe specific management steps should the beluga population 
continue to decline.

[[Page 62963]]

    Response: NMFS has revised the Conservation Action section of the 
conservation plan to include more specific actions necessary for the 
conservation and management of the Cook Inlet beluga whales.
    Comment 6: More outreach and development of a broader stakeholder 
group is necessary.
    Response: NMFS conducted significant outreach to the public and 
interested groups when the draft conservation plan was published (e.g., 
notice in the Federal Register, public meetings, mailings, press 
release, NMFS website). The comment period for the draft conservation 
plan was extended 30 additional days to enable all interested parties 
to formulate their comments. Consequently, NMFS' address list for 
interested parties on Cook Inlet beluga whales has been expanded. 
Specific outreach on stranding response was conducted in local area 
communities to improve the capacity for stranding Response: Homer in 
2003, Anchorage in 2006 and 2007, and Seward in 2008.
    Comment 7: Some commenters opposed NMFS' restrictions in Cook Inlet 
on coastal development, oil and gas, National pollutant discharge 
elimination system (NPDES) permits, vessel traffic, etc. unless 
objective scientific research supports the conclusion that restrictions 
would aid in Cook Inlet beluga whale recovery. Some commenters said the 
draft conservation plan was inaccurate if it implied development had 
significantly impacted the beluga population or their recovery. 
Commenters supported additional research for Cook Inlet belugas and 
their habitat.
    Response: NMFS agrees that more research should be done for the 
Cook Inlet belugas. The habitat research and monitoring sections have 
been expanded in the final conservation plan. Although the Cook Inlet 
beluga population decline in the 1990s was attributed primarily to 
Native subsistence harvests, since 1999 the harvest has been severely 
restricted (only five belugas taken from 1999-2008) and the population 
has not increased as expected. It is probable that other factors are 
keeping the beluga population from recovering, and it is prudent to 
protect their habitat. Important habitat has been characterized in this 
conservation plan and will be reassessed periodically when new data are 
available, the population recovers, or as habitat changes over time. 
With so few belugas remaining (estimated abundance of 375 belugas in 
2008), failure to protect important habitats could rapidly reduce the 
Cook Inlet beluga population to a level where recovery is impossible.
    The conservation plan develops a strategy based on what is known 
about these whales and what can be done to understand them better, 
prevent further declines, and aid the stock to recover its population 
to the OSP. NMFS pursued a scientifically-based conservation plan, 
while using a precautionary approach to management. We believe this 
plan is (1) appropriate given our current knowledge of Cook Inlet 
belugas and their low population abundance, (2) comprehensive in nature 
by combining management and applied research for many different issues, 
and (3) adaptive through subsequent revisions and updates. The 
conservation plan has used the best available scientific, commercial, 
and traditional ecological knowledge available at this time.
    Comment 8: Commenters expressed concern about pollutants from 
sewage, industry, aircraft, storm drains, Eagle River Flats, and 
ballast water. Stronger environmental standards and monitoring were 
recommended.
    Response: The final conservation plan included additional pollution 
information when available. Information was added on Anchorage 
wastewater treatment, Anchorage stormwater, Stevens International 
Airport deicing, ballast water discharges, and military testing at 
Eagle River Flats. Contaminant analysis has been done on Cook Inlet 
belugas since 1992 and results are presented in the conservation plan. 
Contaminant analysis will continue to be a priority and funded when 
possible. NPDES permits for outfalls and oil and gas development will 
be reviewed and appropriate mitigation will be recommended.
    Comment 9: The final conservation plan should address acoustic 
impacts as related to geophysical operations in Cook Inlet. Some 
commenters noted that mitigation measures have been implemented during 
seismic surveys to eliminate noise impacts to beluga whales. Other 
commenters advocated additional acoustic restrictions on geophysical 
operations in Cook Inlet not be included, while yet other commenters 
advocated additional noise restrictions and another recommended 
additional acoustic studies before restrictive actions are instituted.
    Response: NMFS recognizes the cooperation and effort of industry to 
eliminate and reduce impacts to the marine environment. NMFS agrees 
that additional acoustic studies and monitoring should occur and will 
continue to gather acoustic information and update protocols to protect 
beluga whales. Recommendations for noise regulation and acoustic 
studies have been improved in the final conservation plan.
    Comment 10: Some commenters supported a status review under the 
ESA.
    Response: Even though a status review under the ESA occurs 
independently from a conservation plan under the MMPA, NMFS agreed with 
commenters that a second status review was necessary for Cook Inlet 
belugas. The purpose of a status review is to assemble the best 
scientific or commercial data available, in this case on Cook Inlet 
beluga whales, within its known historic range. Since publication of 
the draft conservation plan in 2005, NMFS released a status review for 
the Cook Inlet beluga whales in November 2006, followed by an update in 
April 2008. NMFS considered the information presented in, and 
conclusions drawn from the status reviews for the conservation plan.
    Comment 11: NMFS needs to update the historic Cook Inlet beluga 
abundance and carrying capacity.
    Response: The conservation plan used the best available scientific 
data, both for Cook Inlet beluga whale population status and carrying 
capacity determinations. Cook Inlet beluga whale data collected before 
1990 have been reviewed and included where appropriate in the 
conservation plan. NMFS has also included traditional ecological 
knowledge on the population where appropriate.
    Historic abundance of Cook Inlet beluga whales was estimated from 
an Alaska Department of Fish and Game survey conducted in 1979. The 
1979 beluga count was the most comprehensive survey for Cook Inlet 
belugas prior to 1993, and by using a conversion factor for missed 
belugas, it provides the best scientific method and available data for 
a historical abundance estimate. Given that the true number of whales 
Cook Inlet could support is unknown, NMFS is using this historical 
abundance estimate as the carrying capacity. Edits were incorporated 
into the conservation plan to better clarify the historical abundance 
estimate and carrying capacity. The beluga population trend analysis 
was updated with the most recent abundance surveys.
    Comment 12: NMFS should establish guidelines that protect the 
whales from undue harassment from tour operators and jet skis.
    Response: Harassment of marine mammals under the MMPA is currently 
considered as part of the definition of a ``take.'' Takes are 
prohibited under the MMPA. NMFS will evaluate the need

[[Page 62964]]

for further guidelines as they might pertain to tour operators and jet 
ski operations that may cause takings of Cook Inlet beluga whales.
    Comment 13: Some commenters supported tighter controls on oil and 
gas activity. Commenters urged NMFS to take a stronger approach to 
determine the effects of existing oil and gas activity.
    Response: NMFS agrees that monitoring oil and gas activity in Cook 
Inlet should be comprehensive and effective. NMFS reviews all 
applicable Federal permits for oil and gas development and recommends 
appropriate mitigation measures and stipulations as necessary.
    Comment 14: NMFS should invoke its statutory authority to implement 
various management tools to protect Cook Inlet beluga whales.
    Response: Under various authorities, NMFS has implemented 
management measures to protect Cook Inlet beluga whales. Among the 
protection measures, NMFS enforces the MMPA marine mammal take 
moratorium. NMFS has issued regulatory provisions that prevent or 
restrict Native subsistence harvests. NMFS is listing the whale as an 
endangered species under the ESA. Also, with this conservation plan, 
NMFS is describing methods to stop direct population losses and restore 
the stock.
    Comment 15: The marine mammal stranding plan and network should be 
expanded. Commenters indicated that more stranding data in Cook Inlet 
should be collected and analyzed.
    Response: NMFS agrees. The conservation plan reflects NMFS' efforts 
to improve stranding response and agreements. Furthermore, stranding 
outreach workshops have been held (with USFWS) in Homer (2003), 
Anchorage (2006, 2007), and Seward (2008). NMFS plans to update the 
Cook Inlet stranding plan in 2008/2009.
    Comment 16: Four commenters indicated that the draft conservation 
plan used flawed methodology, flawed population estimates, and 
unrealistic recovery rates.
    Response: The final conservation plan was updated with the most 
recent abundance surveys and trend analysis. The annual abundance 
surveys on Cook Inlet beluga whales are a comprehensive and 
statistically validated assessment of the Cook Inlet beluga whale 
population Aerial survey methodology has been consistent since 1994 and 
video analysis has been improved over the years as technology has 
advanced. For odontocetes, the typical average growth rate is 4 percent 
per year. The Cook Inlet beluga population has seen a 1.5 percent 
annual decline since 1999 when the harvest was regulated. This 
declining trend since 1999 indicates that factors other than 
subsistence hunting may be preventing recovery. A detailed discussion 
on population abundance estimates and recovery rates is included in the 
conservation plan.
    Comment 17: The draft conservation plan failed to adequately 
address beluga whale subsistence issues.
    Response: The final conservation plan was edited to better clarify 
subsistence issues. NMFS recognizes the cultural and nutritional values 
of subsistence foods, including beluga whale, for Alaska Natives. 
Harvests from this stock have been severely restricted (0 to 2 whales 
annually) since 1999. Alaska Native subsistence harvests will continue 
at low levels when the five year population average is more than 350 
Cook Inlet belugas. The conservation efforts on subsistence harvests 
are due to both the voluntary efforts by the Native hunters and 
conditions imposed by Federal law.
    Since 2000, six annual co-management agreements have been signed 
between NMFS and Cook Inlet Marine Mammal Council in compliance with 
Public Laws 106-31 and 106-553. NMFS has worked extensively with 
experts, including Native hunters, to use the best available science 
and traditional knowledge in our management and conservation of Cook 
Inlet belugas. This includes workshops by NMFS, Cook Inlet Marine 
Mammal Council, and Alaska Beluga Whale Committee.
    A technical working group was created by an administrative law 
judge to develop a Cook Inlet beluga harvest management plan for 2005 
and subsequent years that would recover Cook Inlet belugas while 
allowing for traditional subsistence use. The long-term harvest 
regulations were finalized in 2008. It is probable that other factors, 
not subsistence harvest, keep the population from recovering. This is 
addressed in the final conservation plan.
    Comment 18: NMFS should immediately enter into agreements with 
relevant Federal agencies to ensure enhanced protection measures are in 
place for Cook Inlet issues, concerns, and development projects that 
are outside NMFS direct jurisdiction.
    Response: NMFS has good working relationships with other State and 
Federal agencies and does not believe additional agreements are 
necessary at this time. No changes were made to the conservation plan 
to develop agreements with other agencies.
    Comment 19: While beluga tagging efforts provide invaluable 
information on beluga movements and behavior, the actual tagging 
process and subsequent tag conveyance by whales poses heightened risk 
(stress) to the tagged whales.
    Response: Some research activities may have the potential to 
negatively affect the small population of Cook Inlet beluga whales. 
NMFS carefully evaluates all marine mammal research permit applications 
to ensure that the proposed research is not likely to have a long term 
direct or indirect impact on the stock.
    Comment 20: A goal of the conservation plan should be to analyze 
Cook Inlet salmon and other prey availability more closely.
    Response: NMFS agrees. The need for a forage fish analysis research 
project was included in the conservation plan.
    Comment 21: Reorganize and clarify the conservation strategy and 
step-down outline. The step-down outline needs better organization and 
specificity.
    Response: NMFS agrees. The entire conservation program, including 
the conservation strategy, has been reorganized for clarity and re-
prioritized in the conservation plan.
    Comment 22: Improve the enforcement plan by adding specific 
information on who will conduct air, boat, and vehicle patrols and 
when; and specifically how NMFS will interface with citizens and 
community groups to enhance enforcement oversight.
    Response: The enforcement section was updated to include the 2008 
NOAA Law Enforcement Plan for Cook Inlet belugas (see Appendix D); 
however, this plan does not describe specific enforcement methods and 
activities which may compromise the effectiveness of the enforcement 
plan.
    Comment 23: Exploratory drilling should not be limited to November 
1 through April 1 of each year. Due to winter ice conditions in Cook 
Inlet, this restriction will effectively eliminate all exploratory 
drilling in the inlet.
    Response: This specific condition has been eliminated in the final 
conservation plan. However, NMFS will develop mitigation measures 
(including timing) tailored to drilling locations and beluga presence 
on a case by case basis as coordinated under the MMPA, ESA, Fish and 
Wildlife Coordination Act, and Magnuson-Stevens Act (as it pertains to 
Essential Fish Habitat).
    Comment 24: One commenter encouraged NMFS to avoid recommending an 
outright prohibition on wastewater discharge permits for Type 1 
habitat. Wastewater treatment needs can be tailored to meet even the

[[Page 62965]]

most stringent receiving water requirements identified in a permit.
    Response: NMFS has reassessed its position in the conservation 
plan. NMFS acknowledges that a lack of sewage treatment in a growing 
urban area would have negative impacts. Further, NMFS acknowledges that 
wastewater treatment needs can be tailored to meet a permit's 
requirements; therefore, this prohibition was removed.
    Comment 25: One commenter noted that Type I and II habitat 
management measures place severe restrictions on any work that would be 
associated with placing and maintaining undersea electrical cables. The 
commenter said it is not aware that previous cable circuit installation 
and subsequent operation have negative impacts on the beluga whale 
population.
    Response: NMFS has no evidence that electrical cable operation or 
maintenance has had negative impacts on beluga whales. Any cable 
installation must go through the Corps of Engineers permitting process, 
as required by law. The goal of the conservation plan is not to 
restrict development or prohibit maintenance for undersea electrical 
cables, but rather to protect beluga habitat and allow the population 
to recover and expand to its historic range. Projects in Type I habitat 
area (which has been redefined in the conservation plan) should not 
adversely affect the beluga habitat.
    Comment 26: One commenter says that NMFS must continue to study 
belugas to help future preservation and knowledge efforts, and must not 
delay actions ensuring the belugas' survival.
    Response: With the continued annual decline at 1.5 percent since 
harvest was regulated in 1999, we agree that conservation actions need 
to occur immediately. The conservation plan develops a strategy based 
on: (1) improving our knowledge about the biology of these belugas and 
the factors that are limiting their population growth; (2) stopping 
direct losses to the population; (3) protecting valuable habitat; and 
(4) evaluating the effectiveness of these strategies and the success of 
the conservations actions in restoring the Cook Inlet stock to its OSP. 
NMFS pursued a scientifically-based conservation plan while using a 
precautionary approach to management. As monitoring and studies provide 
additional scientific information, management can be adjusted 
accordingly. This section was clarified in the final conservation plan.
    Comment 27: One commenter is concerned that NMFS plans to re-assess 
this stock for possible listing under ESA, and asserts that it is 
inappropriate for NMFS to abandon the current co-management agreement 
and conservation measures.
    Response: Although NMFS is listing Cook Inlet beluga whales as an 
endangered species, NMFS will continue to co-manage Cook Inlet belugas 
with the Cook Inlet hunters and make use of conservation measures under 
the MMPA while a recovery plan under the ESA is being prepared.
    Comment 28: NMFS should not manage or authorize fishing operations 
that are likely to have an impact on beluga whales. The commenter adds 
that the draft conservation plan is unclear as to NMFS' role in Federal 
and State fisheries.
    Response: The conservation plan has been clarified to differentiate 
between managing Federal fisheries and providing input to State 
fisheries.

    Dated: October 16, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-25101 Filed 10-17-08; 11:15 am]
BILLING CODE 3510-22-S