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



[[Page 20179]]

Vol. 76

Monday,

No. 69

April 11, 2011

Part III





Department of Commerce





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



 National Oceanic and Atmospheric Administration



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



50 CFR Part 226



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

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

[[Page 20180]]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 090224232-0457-04]
RIN 0648-AX50


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

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

ACTION: Final rule.

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

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

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

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

FOR FURTHER INFORMATION CONTACT: Brad Smith (907-271-3023), Kaja Brix 
(907-586-7235), or Marta Nammack (301-713-1401).

SUPPLEMENTARY INFORMATION: 

Rulemaking Background

    We are responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) are threatened or endangered and 
for designating critical habitat for these species under the Endangered 
Species Act (ESA) (16 U.S.C. 1531 et seq.). On October 22, 2008, we 
published a Final Rule to list the Cook Inlet beluga whale as an 
endangered species (73 FR 62919). At the time of listing, we announced 
our intent to propose critical habitat for the Cook Inlet beluga 
whales. This critical habitat was subsequently proposed on December 2, 
2009 (74 FR 63080). The proposed rule's critical habitat for the Cook 
Inlet beluga whale was determined by considering information received 
in response to our Advance Notice of Proposed Rulemaking, sighting 
reports, satellite telemetry data, The Traditional and Ecological 
Knowledge of Alaska Natives (TEK), scientific papers and other 
research, the biology and ecology of the Cook Inlet DPS of beluga 
whales, and information indicating the presence of one or more of the 
identified primary constituent elements (PCEs) within certain areas of 
their range. The proposed rule identified ``specific areas'' within the 
geographical area occupied by the Cook Inlet beluga whale to be 
proposed as critical habitat.
    We considered various alternatives to the critical habitat 
designation for the Cook Inlet beluga whale. The alternative of not 
designating critical habitat for the Cook Inlet beluga whale would 
impose no economic, national security, or other relevant impacts, but 
would not provide any conservation benefit to the species. This 
alternative was rejected because such an approach does not meet the 
legal requirements of the ESA and would not provide for the 
conservation of Cook Inlet beluga whale. The alternative of designating 
all eligible occupied habitat areas also was considered and rejected, 
because some areas within the occupied range were not considered to be 
critical habitat, and did not contain the identified physical or 
biological features that are essential to the conservation of the Cook 
Inlet beluga.
    An alternative to designating critical habitat within all eligible 
occupied areas is the designation of critical habitat within a subset 
of these areas. Under section 4(b)(2) of the ESA, we must consider the 
economic impacts, impacts to national security, and other relevant 
impacts of designating any particular area as critical habitat. We have 
the discretion to exclude any particular area from designation as 
critical habitat if the benefits of exclusion (i.e., the impacts that 
would be avoided if an area were excluded from the designation) 
outweigh the benefits of designation (i.e., the benefits to the Cook 
Inlet beluga whale if an area were designated), so long as exclusion of 
the area will not result in extinction of the species. Exclusion under 
section 4(b)(2) of the ESA of one or more of the areas considered for 
designation would reduce the total impacts of designation. The 
determination to exclude any particular areas depends on our ESA 
4(b)(2) analysis, which is described in detail in the ESA 4(b)(2) 
analysis report.
    This final rule includes several small changes to the areas 
proposed as critical habitat and, importantly, excludes under Section 
4(b)(2) the Port of Anchorage (POA) from designated critical habitat 
for reasons relating to national security. We corrected errors within 
the proposed rule's descriptions of the boundaries for this critical 
habitat so that the final rule utilizes the coordinate system of 
degrees, decimal-minutes. We have also changed the sentence structure 
of the PCEs concerning noise and toxins in the final rule to improve 
clarity.
    The total quantifiable economic impact associated with this final 
rule is estimated to be between $157,000 to $472,000 (discounted at 7 
percent) or $187,000 to $571,000 (discounted at 3 percent). While we 
have excluded a small portion of the area originally proposed as 
critical habitat for national security reasons (the POA), that 
exclusion does not affect the economic impact analysis because the 
small size of the area indicates that the potential cost-savings are 
likely nominal (i.e., consultations will continue to occur to ensure 
proposed activities in those areas do not jeopardize the species or 
adversely modify or destroy adjacent areas of critical habitat). 
Additional economic impacts, both costs and benefits, that were not 
amenable to quantification, but nonetheless important to a complete 
evaluation of this action, were identified and analyzed qualitatively. 
Both the quantitative and qualitative economic effects of the final 
rule are presented, in detail, in the Final Regulatory Impact Review/
4(b)(2) Preparatory Assessment/Final Regulatory Flexibility Analysis. 
We promulgate this final rule because it results in a critical habitat 
designation that provides for the conservation of the Cook Inlet beluga 
whale, without economic effects of sufficient significance to warrant 
an exclusion from designation on that basis alone. Other areas within 
the species' range did not contain the identified physical or 
biological features that are essential

[[Page 20181]]

to the conservation of the Cook Inlet beluga. This alternative also 
meets the requirements under the ESA and our joint NMFS-USFWS 
regulations concerning critical habitat.

Cook Inlet Beluga Whale Biology and Habitat Use

    The beluga whale is a small, toothed whale in the family 
Monodontidae, a family it shares with only the narwhal. Belugas are 
also known as ``white whales'' because of the white coloration of the 
adults. The beluga whale is a northern hemisphere species that inhabits 
fjords, estuaries, and shallow waters of the Arctic and subarctic 
oceans. Five distinct stocks of beluga whales are currently recognized 
in Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea, 
Bristol Bay, and Cook Inlet. The Cook Inlet population is numerically 
the smallest of these, and is the only one of the five Alaskan stocks 
occurring south of the Alaska Peninsula in waters of the Gulf of 
Alaska.
    A detailed description of the biology of the Cook Inlet beluga 
whale may be found in the Proposed Listing Rule (72 FR 19854; April 20, 
2007).

Summary of Comments and Responses

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

General Comments on Critical Habitat

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

[[Page 20182]]

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

Physical or Biological Features Essential for Conservation (PCEs)

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

[[Page 20183]]

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

[[Page 20184]]

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

[[Page 20185]]

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

[[Page 20186]]

expertise and observations of NMFS researchers, and the reports and 
observations of whales in this area by the Alaska Department of Fish 
and Game, National Park Service, and private parties. Please note also 
that the 5-mile (8km) distance around these (high and medium flow) 
anadromous waters describes the PCE, and not the boundary of the 
critical habitat.
    Comment 27: There are discrepancies between the depiction and 
boundaries of critical habitat within the proposed rule, in that there 
are differing definitions of Areas 1 and 2 in different sections. The 
map accompanying the rule was not at sufficient resolution to be 
useful.
    Response: The proposed rule contained several discrepancies in the 
coordinates and mapping conventions used to describe the boundaries of 
the critical habitat. Corrections have been made within the final rule. 
A higher resolution map of this critical habitat will be added to our 
regional Web site at http://www.fakr.noaa.gov.
    Comment 28: NMFS' statement that ``there remain additional and 
unmet management needs owing to the fact that none of these management 
regimes is directed at the conservation and recovery needs of Cook 
Inlet beluga whales'' is objectionable. There is no evidence that 
supports a lack of effectiveness of any of the management regimes in 
place in Cook Inlet or that any management or regulatory gap 
contributed to the endangered listing of Cook Inlet beluga whales, or 
limits its recovery.
    Response: The quoted statement does not assert that the lack of 
effective management in Cook Inlet contributed to the whale's listing 
or limits its recovery. As explained in the proposed rule, the ESA 
defines critical habitat as areas on which are found those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protection. For 
each essential feature we identified, we determined that it may require 
special management considerations or protection. One of the reasons for 
this finding is the lack of any existing laws, regulations, or 
practices that provide for the management or protection of these 
features for the conservation of Cook Inlet beluga whales. It is 
therefore foreseeable, if not likely, that through the ESA section 7 
consultation process, we will offer recommendations to protect the 
essential features, which would otherwise remain without such 
protection, in order to ensure the conservation of the beluga whale. We 
agree that existing laws and regulations provide some benefit to these 
whales and to their conservation. We disagree with the statement that 
the endangered status of these whales is unrelated to a lack of 
effective management. In fact, we believe much of the decline in this 
DPS is attributable to unregulated subsistence harvest practices prior 
to regulation and management of these hunts.
    Comment 29: Those areas that do not require special management 
consideration or protections are not critical habitat and are not to be 
designated as such under the ESA. Existing state and Federal 
environmental management and regulatory regimes already protect habitat 
for beluga whales, justifying a more narrow identification of areas as 
critical habitat.
    Response: We disagree. The definition of critical habitat (16 
U.S.C. 1532(5)(A)) requires that the physical or biological essential 
features may require special management considerations or protection, 
rather than that the area require such protections. Any area may be 
designated as critical habitat provided it contains one or more of 
these features, and provided that those features may require special 
management or protection.
    Comment 30: NMFS unjustifiably disregarded comments made during 
proposed rulemaking identifying the many existing refuges, sanctuaries, 
state critical habitat areas, legal protections, and mitigative 
requirements that provide protection to beluga whales and their 
habitat.
    Response: We recognize that many conservation and environmental 
actions occur through the efforts of the State of Alaska, local 
governments, and private concerns. These all contribute to a 
conservation ethic, undoubtedly benefit the Cook Inlet region 
environment, and can be beneficial to Cook Inlet beluga whales and 
their habitat. The ESA provides that, when considering a species for 
listing as a threatened or endangered species, consideration be given 
to efforts by any State, or any political subdivision of a state, to 
protect such species. Generally, a species that would otherwise qualify 
for listing may be excluded from listing if there are formalized 
conservation efforts that are sufficiently certain to be implemented 
and effective so as to have contributed to the elimination or adequate 
reduction of one or more threats to the species identified through a 
threats analysis conducted pursuant to section 4(a)(1) of the ESA. 
However, no such provision exists for the designation of critical 
habitat. If such provisions existed, it would still be difficult to 
demonstrate they were effective in providing for the conservation of 
the Cook Inlet beluga whales, as many of these efforts were in place 
during the periods in which these whales experienced significant 
declines, leading to the 2008 listing.
    The ESA allows for critical habitat not to be designated if such 
designation would not benefit the species. Congress intended, however, 
that in most situations NMFS will designate critical habitat at the 
same time that a species is listed as either endangered or threatened. 
It is only in rare circumstances where the specification of critical 
habitat concurrently with the listing would not be beneficial to the 
species. See H.R. Rep. No. 95-1625 at 17 (1978), reprinted in 1978 
U.S.C.C.A.N. 9453, 9467. In this instance, we have determined that the 
designation of critical habitat for the Cook Inlet beluga whale would 
be beneficial to the species by providing specific protections against 
Federal actions that would otherwise destroy or adversely modify that 
habitat. We also identify other benefits, as discussed in the following 
comment.
    Comment 31: Contrary to statements in the Proposed Rule, section 7 
consultations are not a benefit accruing from the action, but will only 
add additional layers of administrative process without additional 
effective protections for beluga whales or their habitat.
    Response: As our analysis of economic impacts from the proposed 
designation indicates, many, if not most, of the future consultations 
on Federal actions pursuant to section 7 of the ESA would otherwise be 
required because of section 7's requirement that Federal agencies not 
take actions that jeopardize the continued existence of the species 
(the jeopardy standard). However, the characterization of this 
designation as an additional layer of process ignores the tangible 
benefits that will accrue from it.
    The designation of critical habitat and identification of essential 
physical and biological features will provide procedural and 
substantive protections, thereby promoting the conservation of the Cook 
Inlet beluga whale. Procedurally, the designation of critical habitat 
will focus future consultations on key habitat attributes and avoid 
unnecessary attention to other, non-essential habitat features. 
Designation of critical habitat will also provide clarity to the 
process by alerting Federal agencies to the specific areas and features 
that should be considered and addressed during these consultations. The 
designation also educates the public as well as State and local

[[Page 20187]]

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

[[Page 20188]]

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

Comments for Exclusions

    We received many comments requesting exclusion from critical 
habitat. These requests concerned excluding navigation corridors, 
portions of the west and east sides of Cook Inlet, the site of the Knik 
Arm bridge, the POA, Port Mackenzie, commercial fishing areas, the City 
of Kenai, Kachemak Bay, and State legislatively-created sites (see 
below). We prepared an analysis to assess, among other things, the 
economic impacts attributable to the designation of critical habitat 
for the Cook Inlet beluga whale. We have determined that, based upon 
economic impact considerations, there are no proposed critical habitat 
areas or sites for which the benefits from excluding the area or site 
outweigh the benefits from designating that area or site. As a result, 
we have not proposed to exclude any sites on economic grounds. We have 
not provided a specific response to each individual request that was 
received and considered here, but we have included responses to all 
significant issues raised in the comments. We also considered requests 
for exclusion based on national security and other relevant impacts, 
and as discussed below, we are excluding a small area connected with 
the POA from the designation. In light of the impacts to national 
security, we determined that the benefits of excluding that small area 
outweigh the benefits of including it.
    Comment 40: Critical habitat should be reduced to areas where the 
beluga whales are most concentrated and should not include areas of 
historical use.
    Response: Generally, critical habitat includes those areas 
necessary to conserve the beluga whale, which broadly means those areas 
that will promote its recovery. To determine the boundaries of critical 
habitat, we identified the specific areas within the geographical area 
occupied by the whale at the time it was listed on which are found 
those physical or biological features essential to the conservation of 
the whale and which may require special management considerations or 
protection. This process resulted in a proposed designation and, 
through the notice-and-comment procedure, we refined the critical 
habitat designation. Our analysis indicates that the inclusion of areas 
only where the whales are most concentrated would be too narrow. The 
critical habitat designation does not include areas outside the 
geographical area occupied by the species as of 2008 because we do not 
believe that any such area is essential for the whale's conservation.
    Comment 41: The POA should be excluded from designation in 
recognition of it being one of nineteen National Strategic Ports whose 
functions include the mobilization and embarkation of military vessels 
for quick deployment around the world.
    Response: We have considered this request and find that, in light 
of the impacts to national security, the benefits of exclusion outweigh 
the benefits of designating the POA and a small area adjacent to it as 
critical habitat. The POA supports certain military functions and 
requirements which cannot be met elsewhere in the State. While air 
shipment of goods and materials present some alternatives as far as 
supply lines to military interests in Alaska, many other demands cannot 
be met without the support of large supply ships calling at this port 
facility. The POA also serves as the conduit for all of the jet JP-8 
fuel now used at Elmendorf Air Force Base.
    We believe that the POA's function in military readiness and role 
as a National Strategic Port could be negatively affected by 
designation it and surrounding waters as critical habitat. Therefore, 
in keeping with the provisions of the ESA, the POA and waters of Knik 
Arm in front of the Port (i.e., the navigation channels and turning 
basin) are not designated as critical habitat. We have determined this 
exclusion will not result in the whale's extinction.
    Comment 42: Any exclusion of the POA for reasons of national 
security should be strictly limited to military activities, and not 
extend to non-military activities.

[[Page 20189]]

    Response: Section 4(b)(2) of the ESA provides that the Secretary of 
Commerce may exclude ``any area'' from designation as critical habitat 
for reasons of national security. We did not find any authority to 
limit these exclusions to a particular activity or entity. Also, 
certain non-military functions which support the operational readiness 
of the port, such as maintenance dredging, could impact military 
operations if they were delayed or otherwise impacted by designation.
    Comment 43: Port MacKenzie is significant to national security in 
providing the ability to efficiently transfer military units, 
munitions, and general cargo between land and marine modes, and should 
be excluded from designation.
    Response: Port MacKenzie is not currently identified as a strategic 
port, nor is it adjacent to military lands, accessed by a major road 
system, utilized for munitions transfers, or serviced by rail. We 
received no supporting recommendations for this exemption from the 
Department of Defense (DOD), and did not find reasonable evidence of 
the need to exclude Port MacKenzie based on national security 
interests.
    Comment 44: The Department of Defense (DOD) reminds us that 
Congress has mandated that Fort Richardson and Elmendorf Air Force Base 
be combined into a single facility by October 2010, and that the 
proposed landward boundary of critical habitat (Mean Higher High Water) 
would overlay the seaward military boundaries for these lands, which 
have been established as Mean High Water. They request clarification on 
this boundary issue.
    Response: Because the areas between mean higher high water (MHHW) 
and mean high water (MHW) are predominately unvegetated mudflats, and 
because all lands of Fort Richardson and Elmendorf AFB (now combined, 
Joint Base Elmendorf-Richardson) are administered under an Integrated 
Natural Resources Management Plan (INRMP) which we found to provide 
benefit to Cook Inlet beluga whales, these areas are ineligible for 
designation as critical habitat. Modifications have been made within 
the final rule to reflect this change.
    Comment 45: The commercial and subsistence fisheries for the Native 
Village of Tyonek (NVT) should be excluded from critical habitat 
designation.
    Response: We believe the commenter is requesting exclusion of those 
waters which support commercial and subsistence fisheries in and 
surrounding the Chuitna River, near the NVT under section 4(b)(2) of 
the ESA. We have considered economic impacts, impacts to national 
security, and other relevant impacts, including impacts to tribal 
interests. We conclude that the benefits of excluding any particular 
area do not outweigh the benefits of specifying such area as critical 
habitat, except for a small area associated with the POA which we 
excluded in light of impacts to national security. We emphasize that 
where no Federal authorization, permit, or funding is required (i.e., 
no Federal action exists), the activity is not subject to section 7 of 
the ESA. Therefore, there would be no section 7 consultations costs 
associated with that activity. Further, we do not believe impacts to 
tribal interests indicate that the benefits of excluding the areas that 
cover the NVT subsistence and commercial fisheries outweigh the 
benefits of specifying these areas as critical habitat. We have not 
received comments that indicate tribal interests would be harmed by 
this action.
    Comment 46: The State of Alaska requests exclusion under section 
4(b)(2) of the ESA for all legislatively-designated areas, such as 
refuges, sanctuaries, and critical habitat areas.
    Response: We have considered this request. The Secretary of 
Commerce may use his discretion to exclude areas from critical habitat 
if the Secretary determines the benefits of such exclusion outweigh the 
benefits of designation of the area, provided the exclusion would not 
result in the extinction of the species. The areas in question include 
the Goose Bay and Anchorage Coastal Refuges, and the Redoubt Bay, 
Kalgin Island, and Kachemak Bay State Critical Habitat Areas. As stated 
in an earlier response to comment, we recognize the contribution of 
such sites to the conservation of the Cook Inlet region, and the direct 
and indirect benefits they provide to Cook Inlet beluga whales and 
their habitat. In this case, the State is arguing the benefits we place 
on including in the designation these legislatively-designated areas be 
reduced by their existing benefit/value owing to their function in 
conserving these whales. All of these areas include important 
ecological and environmental attributes, especially for fish and 
wildlife. Also, several of these sites include important beluga whale 
habitats and may have large numbers of beluga whales within their 
boundaries at various times of the year. Despite the ecological values 
of these areas and the presence of beluga whales and their habitat, we 
know of no such State area whose purpose specifically includes the 
conservation of beluga whales or their habitat. Moreover, neither the 
Cook Inlet beluga whale nor its habitat is included on the State of 
Alaska's endangered species list. We believe that the benefits from 
designation, described in this final rule, will accrue to the 
conservation of the Cook Inlet beluga whale, even in those areas 
currently protected for other purposes by the State of Alaska, such as 
refuges and sanctuaries.
    We also considered the economic impacts associated with the 
designation as critical habitat of the State legislatively-designated 
areas. Our economic analysis indicates that the majority of those 
impacts are associated with the requirement to consult on Federal 
actions under section 7 of the ESA. Often times, however, such costs 
are minimal, because the consultation would already be required because 
the proposed Federal action has the potential to affect beluga whales. 
Any Federal action that ``may affect'' an endangered or threatened 
species requires consultation, regardless of the existence of critical 
habitat. Because land use and management plans exist for these sites, 
and many of these areas are remote, there are fewer Federal actions 
occurring or proposed here than may be expected outside of these 
refuges, sanctuaries, and critical habitat areas. We, therefore, do not 
expect the demand for Federal actions in these sites to increase 
markedly in the future. Additionally, any costs that may be 
attributable to critical habitat designation would be unlikely to be 
borne by the State of Alaska, but rather by the Federal action agency 
or any private entity proposing work here that requires Federal 
authorization, permits, or funding. Also, any ``costs'' such as 
increased consultation on actions that may impair the function of 
habitat (critical habitat for beluga whales) in these areas may be 
viewed as a benefit, rather than a cost, in that it may add to the 
values for which these areas were established.
    Therefore, after considering the economic impacts and other 
relevant impacts described above, we have determined that the benefits 
of designation of critical habitat outweigh the benefits of excluding 
those areas currently designated by the State of Alaska as refuges, 
sanctuaries, and critical habitat areas from this designation.
    Comment 47: NMFS can exclude areas to preserve partnerships and 
existing protections if the designation risks losing important 
protection for beluga whales.
    Response: The ESA requires that the designation process take into 
consideration the economic impact ``and

[[Page 20190]]

any other relevant impact'' of specifying an area as critical habitat, 
but neither the ESA nor the implementing regulations provide clarity on 
the provisions for the Secretary of Commerce to exclude from 
designation any areas for which the benefits of exclusion outweigh the 
benefits from designation. We are not entirely clear as to what is 
meant by the comment's reference to critical habitat designation posing 
risks to existing protective measures. Nonetheless, we believe that the 
designation will result in an increase in protection or conservation 
measures.
    Comment 48: Electric energy for the Anchorage area is supplied by 
undersea cables from a generating plant near Beluga, Alaska. The cable 
field and overlying waters should be excluded from critical habitat as 
any delays in maintenance or repairs would present significant economic 
costs and threat to the reliability of the region's electrical system. 
The possible requirement to stop water operations if a whale is sighted 
closer than 2,000 feet would have very negative impacts on cable 
laying. Similarly, barge operations in support of power generation 
could be negatively impacted by this designation, and these barge 
landing areas should also be excluded.
    Response: After preparing an economic impact analysis and 
considering those economic impacts and the ones raised in public 
comments on the proposed rule, we have determined that the benefits of 
exclusion do not outweigh the benefits of including any particular 
area. The economic analysis assesses power generation projects and 
general commercial activities in the upper Inlet. Thus, we believe the 
findings in the economic analysis are applicable to this comment. 
Whenever practicable, the analysis sought to identify the incremental 
costs unique to critical habitat designation. The analysis found that 
the impacts from a designation decision will often be co-extensive with 
the ones from the listing decision. That is, in many instances, costs 
arising from the need to consult because of the potential to destroy or 
adversely modify critical habitat will be co-extensive with the costs 
arising from the need to consult because of the potential to jeopardize 
the species.
    In the specific example the commenter provides (stopping operations 
when a whale was near the work boat), consultation costs would be 
entirely attributable to ESA jeopardy considerations stemming from the 
listing, not critical habitat designation, because the hypothetical 
scenario involves the direct interaction between a whale and the work 
activity referenced (i.e., a potential ``take''). This interaction is, 
in no way, influenced by the designation of critical habitat. In other 
instances, for example, actively laying submarine cable in Cook Inlet, 
the incremental cost of evaluating the potential of a proposed action 
to ``destroy or adversely modify'' critical habitat during a 
consultation would be largely indistinguishable from the costs 
attributable to evaluating that activity's potential to jeopardize the 
species.
    Moreover, the commenter provided no specific information indicating 
that this work would even require Federal authorization, permits, or 
funding (i.e., Federal action). Absent a Federal action, the critical 
habitat designation would not impose section 7 consultation obligations 
on the commenter's hypothetical activity. We are aware of no Federal 
permit requirements to maintain or repair submarine cable, or to 
operate a barge. Based upon the information provided, we did not find a 
compelling reason to exclude these areas from critical habitat.
    Comment 49: NMFS has not presented sufficient information to 
justify the inclusion of the lower Inlet areas as critical habitat. 
Hobbs et al. (2005) is cited as describing dive behavior in winter, yet 
no such data are reported in that paper. Winter behavior and habitat 
use may differ from that of summer months, and NMFS habitat models are 
primarily based on observations during June.
    Response: The Proposed Rule incorrectly referenced Hobbs et al. in 
describing dive behavior; that paper did not include analysis of dive 
patterns. That work did, however, establish the distribution of tagged 
beluga whales during winter months as including offshore waters of the 
mid Inlet which are consistently deeper than those areas typically 
occupied by whales during the summer. At this time, we do not have a 
complete understanding of the specific attributes that support winter 
beluga habitat within Cook Inlet. Because we are required to consider 
the best scientific data available in designating critical habitat, we 
reviewed non-systematic sighting reports from State and private 
sources, aerial surveys of winter beluga distribution, and TEK in 
assessing the value of the lower Inlet as critical habitat. Also, we 
believe the use of the southwest Inlet during late summer and fall may 
be an extension of the feeding behavior (and distribution) which occurs 
in the upper Inlet as whales move south to take advantage of late 
spawning returns of coho salmon. This habitat use and behavior would 
support the use of the results in Goetz et al. (2007) as descriptive of 
habitat values in the southwest Inlet. While there is some evidence 
that beluga whales may be overwintering in an offshore area south of 
Kalgin Island, these areas were not included as critical habitat 
because we felt information was not adequate to describe this use or 
identify any essential features.

Comments for Inclusion

    We received many comments recommending additional areas be included 
in the critical habitat designation. These include all of Cook Inlet, 
corridors connecting habitat areas, upper and lower Cook Inlet, 
historically-used areas, Iniskin Bay, the mouths of tributary streams 
entering the Inlet, the Eagle River Flats firing range, the POA, and 
Hudson Bay near Churchill, Canada. We have considered all such comments 
and respond below to the significant issues they raise.
    Comment 50: The critical habitat should include important feeding 
areas at the mouths of the Matanuska River, Knik River, and Cottonwood 
Creek.
    Response: The described boundaries for this critical habitat 
generally include areas such as these. While there is often a poorly-
defined division between Cook Inlet and a tributary stream or river, 
our proposed river boundaries would extend critical habitat into the 
lower reaches of many streams. Tidal influence may extend a 
considerable distance up these tributary waters, but represents areas 
in which we have very few observations or reports of belugas. We 
identified several waters where beluga whales are known or suspected to 
utilize such up-river areas for feeding, and specifically extend 
critical habitat into these reaches.
    Comment 51: Critical habitat must include the habitat of prey 
species of beluga whales, such as the Susitna River system and other 
waters above tidal influence.
    Response: The ESA requires that critical habitat be located within 
the geographic area occupied by a species, or within specific areas 
outside of occupied habitat determined to be essential to the 
conservation of the species. The areas described are outside the 
geographic areas occupied by the species at the time of its listing, 
and in light of the areas we are designating and the best scientific 
data available, we have determined that the unoccupied areas are not 
essential to the whale's conservation. We agree that habitat for prey 
species such as salmon and eulachon is a necessary component to their 
existence in the wild, but we do not have adequate scientific 
information

[[Page 20191]]

to identify specific areas that would be essential to the conservation 
of these beluga whales with respect to habitat values of prey species.
    Comment 52: Critical habitat boundaries should be extended to 
incorporate all of the described range of these whales. Both the 
nearshore and offshore areas of lower Cook Inlet should be designated 
as critical habitat.
    Response: We carefully considered designation of these areas as 
critical habitat, but we did not find sufficient justification to do 
so. These areas have been used by beluga whales in the past, during 
periods in which their abundance was much higher than today, and beluga 
whales are still observed in these areas. However, both the current and 
historical accounts of beluga whales in these areas do not indicate 
they supported important numbers/concentrations of whales, or that they 
served important habitat functions. Existing habitat models describe 
open water values that are likely very important attributes to feeding 
and, perhaps, calving habitat needs and preference. Such modeling does 
not indicate high habitat values are present in the areas in the lower 
Inlet that are not included in the designation. We acknowledge more 
information is needed to understand the winter habitat needs of the 
Cook Inlet belugas, and that other areas may be found to be important 
as new data arrive. But presently, we do not find sufficient support 
for inclusion of these areas.

Comments To Extend Public Comment

    Comment 53: NMFS received several comments and requests to extend 
or re-open the comment period for this action, or to conduct additional 
hearings in the State.
    Response: On consideration, we believe the public process, which 
has included the publication of an Advance Notice of Proposed 
Rulemaking with a 30-day public comment period (74 FR 17131; April 14, 
2009), publication of a proposed rule with 60-day public comment period 
(74 FR 63080; December 2, 2009), a 30-day extension of the comment 
period for the proposed rule, and four public hearings held in the 
major population centers in the Cook Inlet region (Kenai, Soldotna, 
Wasilla, and Anchorage), was sufficient and proper. Therefore, we have 
determined not to extend or re-open the comment period, or to hold 
additional hearings for this final rulemaking.

Comments on the Need To Designate Critical Habitat

    Comment 54: Designation of critical habitat was unnecessary, and 
will not add any meaningful protection to these whales. The regulations 
at 50 CFR 424.12 provide that critical habitat may not be prudent, and 
therefore would not be designated, when that designation would not be 
beneficial to the species. The consultation provisions of the ESA 
provide reasonable protection to these whales under the jeopardy 
standard. NMFS has used circular logic in saying the benefit of 
designating critical habitat is that it will require (Federal agencies) 
to ensure their actions do not destroy or adversely modify critical 
habitat. The remaining functional benefit of public education and 
outreach would be more effectively met through a dedicated public 
education program rather than the less direct means of designating 
critical habitat.
    Response: We disagree. The ESA provides that critical habitat shall 
be designated ``to the maximum extent prudent and determinable.'' 16 
U.S.C. 1533(a)(3)(A). The ESA does not define ``prudent.'' NMFS/USFWS 
regulations, however, provide that a designation of critical habitat is 
not prudent when the ``designation of critical habitat would not be 
beneficial to the species.'' 50 CFR 424.12(a)(1)(ii). This means that 
in the rare situation where there is zero benefit from designation, we 
need not designate. If there is any benefit, we must designate. 
Congress intended that in most situations the Secretary will designate 
critical habitat at the same time that a species is listed as either 
endangered or threatened. It is only in rare circumstances where the 
specification of critical habitat concurrently with the listing would 
not be beneficial to the species. See H.R.Rep. No. 95-1625 at 17 
(1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9467. See also Enos v. 
Marsh, 769 F.2d 1363, 1371 (9th Cir.1985) (holding that the Secretary 
``may only fail to designate a critical habitat under rare 
circumstances''); Northern Spotted Owl v. Lujan, 758 F.Supp. 621, 626 
(W.D.Wash.1991) (``This legislative history leaves little room for 
doubt regarding the intent of Congress: The designation of critical 
habitat is to coincide with the final listing decision absent 
extraordinary circumstances.'').
    In short, if there will be any benefit from the designation, we 
must designate. Even if many consultations will occur because of the 
combined potentialities that proposed Federal actions will adversely 
modify critical habitat and jeopardize the species, if some will occur 
only because of the potential for adverse modification, there still is 
benefit to the species (see response to comment 54). Further, courts 
have recognized benefits beyond the need to consult. See Conservation 
Council for Haw. v. Babbitt, 2 F.Supp.2d 1280, 1288 (D. Haw. 1998) 
(substantively, the designation establishes a uniform protection plan 
prior to consultation, and procedurally, the designation educates the 
public as well as state and local governments, and affords them the 
opportunity to participate in the designation). We do not believe this 
situation is the rare one allowing us to avoid the ESA's strong mandate 
to designate critical habitat.
    As for the arguments that the Marine Mammal Protection Act (MMPA) 
protection is enough, critical habitat must be designated regardless of 
whether other laws or provisions arguably provide adequate protection. 
See Natural Resources Defense Council v. U.S. Dep't of the Interior, 
113 F.3d 1121, 1127 (9th Cir. 1991) (``Neither the Act nor the 
implementing regulations sanctions nondesignation of habitat when 
designation would be merely less beneficial to the species than another 
type of protection''). Lastly, while the term ``take'' includes harm, 
and USFWS' definition of harm includes habitat modification, it applies 
only when such modification ``actually kills or injures'' the species 
(50 CFR 17.3). Under section 7 of the ESA, we may find that an action 
will adversely modify critical habitat and propose reasonable and 
prudent alternatives without having to also make the higher evidentiary 
determination that the adverse modification will kill or directly 
injure the species.

Legal and Regulatory Comments

    Comment 55: Existing State and Federal regulation and associated 
mitigation measures are adequate to protect Cook Inlet beluga whales 
and the critical habitat designation is not necessary. One commenter 
also asserts that NMFS has disregarded the information it submitted 
concerning existing laws and regulations that protect Cook Inlet beluga 
whales and their habitat. One commenter also asserts that there is no 
evidence that a lack of effectiveness of any of the management regimes 
in place in Cook Inlet or that any management or regulatory gap 
contributed to the endangered listing of Cook Inlet beluga whales or 
limits its recovery.
    Response: The ESA defines critical habitat, in part, as ``the 
specific areas * * * 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.'' 16 
U.S.C. 1532(5)(A)(i). The phrase ``may require'' indicates that 
critical habitat includes features that

[[Page 20192]]

may now, or at some point in the future, be in need of special 
management considerations or protection.
    As explained in the proposed rule, we determined that each PCE may 
require special management considerations or protection. The commenter 
is correct that certain laws and regulatory regimes already protect, to 
different degrees and for various purposes, the waters of Cook Inlet 
and, therefore, to a certain extent, the physical or biological 
features identified as essential to the conservation of the species. 
The fact that there are relevant state and Federal regulations which 
aim to protect these waters and features from a variety of sources and 
actions indicates that each feature currently is in need of special 
management considerations or protection. The existing laws and 
regulations do not, however, ensure that current and proposed actions 
will not adversely modify or destroy beluga whale critical habitat in 
Cook Inlet. It is therefore probable, if not likely, that the PCEs 
essential to the conservation of the Cook Inlet beluga whale will 
require special management considerations or protection in the future. 
The consultation process is one mechanism through which we can ensure 
that those features are afforded such consideration or protection.
    With regard to the comment that we disregarded information 
submitted on existing laws and regulations, we disagree with the 
commenter because we have considered this information in the proposed 
rule and in this final rule. Finally, with regard to the comment about 
whether the lack of effectiveness of any of the current management 
regimes contributed to the endangered listing, the designation of 
critical habitat for any listed species does not necessarily indicate 
that existing laws are responsible for the species' decline. Similarly, 
the fact that there are existing laws that protect different aspects of 
a listed species' critical habitat does not, per se, preclude the 
designation of critical habitat. The inquiry is whether there are 
physical or biological features that are essential to the conservation 
of the species and which may require special management considerations 
or protection. Congress envisioned that, except in extraordinary 
circumstances, the Secretary would designate critical habitat. There 
are no extraordinary circumstances that would allow us to avoid the 
designation of critical habitat for the Cook Inlet beluga whale.
    Comment 56: The critical habitat designation should not be 
finalized until pending legal rulings on the status of the Cook Inlet 
beluga whales are made.
    Response: We disagree. The ESA requires us to designate critical 
habitat concurrently with the listing decision to the maximum extent 
prudent and determinable (16 U.S.C. 1533(a)(3)(A)(i)). If such 
designation is not determinable, we may extend the deadline by one 
year. In the extraordinary situation where the designation of critical 
habitat is not prudent, we may decide not to do so. See response to 
comment 54 above. Section 424.12(a)(1) of 50 CFR presents two 
circumstances when a designation is not prudent, but neither one is 
applicable here. Accordingly, whichever ``pending legal rulings on the 
status of Cook Inlet beluga whales'' the commenter is referring to, 
they do not constitute cognizable grounds under the ESA for delaying 
the designation of critical habitat. If the State of Alaska prevails in 
its lawsuit challenging our decision to list the Cook Inlet beluga 
whale, we will determine at that time what effect such a ruling has on 
this final rule.
    Comment 57: Because NMFS has not yet complied with all of the 
applicable directives, such as the National Environmental Policy Act, 
Executive Order 13211, and Public Law 108-199, the proposed rule is 
unlawful.
    Response: We disagree. We have complied with Executive Orders 13211 
and 13175, as modified by Public Law 108-199 (74 FR 63,080, 63,093-94; 
Dec. 2, 2009). NEPA does not apply to decisions to designate critical 
habitat. See Douglas County v. Babbitt, 48 F.3d 1495, 1501-08 (9th Cir. 
1995).
    Comment 58: NMFS must provide justification for the designation of 
critical habitat inconsistent with comments provided to it by the State 
of Alaska and its political sub-divisions.
    Response: Section 4(i) of the ESA provides that if the Secretary 
issues a final regulation which is in conflict with the comments of a 
State agency, the Secretary must provide a written justification for 
his failure to adopt regulations consistent with the agency's comments. 
We have complied with this section by submitting a letter to the Alaska 
Department of Fish & Game and the Governor's Office.
    Comment 59: There is a direct Federal nexus with the critical 
habitat designation through the Magnuson-Stevens Act to anadromous 
species. These anadromous species include hooligan, smelt, and salmon.
    Response: We are uncertain as to what this commenter means by 
``direct Federal nexus with the critical habitat designation.'' To the 
extent that this commenter is referring to potential ESA section 7 
consultations, we note that section 7 of the ESA requires each Federal 
agency, in consultation with NMFS, to ensure that ``any action 
authorized, funded, or carried out'' by the agency is not likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of the species' habitat (16 
U.S.C. 1536(a)(2)). Our regulations provide that action ``means all 
activities or programs of any kind authorized, funded, or carried out, 
in whole or in part, by Federal agencies in the United States or upon 
the high seas'' (50 CFR 402.02). Accordingly, if or when there is a 
Federal action that may affect a listed species or its habitat, the 
Federal action agency must consult with NMFS. At this time, we are 
unaware of any proposed Federal actions pertaining generally to 
hooligan, smelt, or salmon that would require consultation.

Economic Comment

    Comment 60: Many comments suggest that the Draft RIR/4(b)(2)PA/IRFA 
did not consider changes to development projects stemming from the 
critical habitat designation, such as added costs and operational and 
permitting delays to projects resulting from the ESA section 7 
consultation process, and the attendant economic consequences. Some 
comments, such as those by Chugach Electric Association and 
ConocoPhillips, also estimated the costs associated with these 
modifications and delays. According to these comments, in addition to 
the ESA process, project delays could also be caused by environmental 
lawsuits, once the critical habitat is designated.
    Response: The Cook Inlet beluga whale was listed as endangered in 
October 2008. Since the listing, all Federal agencies have had the 
obligation to consult with NMFS to ensure that any action authorized, 
funded, or carried out by them (i.e., Federal action) is not likely to 
jeopardize the continued existence of the species. Consultations in 
accordance with this obligation must be conducted in the future, 
regardless of whether critical habitat is designated. The statute 
contains timelines for section 7 consultations, and Federal agencies 
should plan their activities accordingly to avoid delay. Non-Federal 
entities that require Federal permits for development projects should 
also be aware of the consultation requirement, and factor the time 
needed for consultations into their plans and schedules. As 
consultations are already required under the jeopardy standard, the 
additional consultation standard of destruction or adverse modification 
of critical habitat is not anticipated to result in significant, 
additional project

[[Page 20193]]

delays. With respect to project modifications, there presently is no 
detailed empirical information (e.g., engineering, materials, and 
structural design; project scheduling, temporal sequencing of 
construction, and duration; associated costs and financing) pertaining 
to future projects or any project modifications that might be proposed 
for areas within or immediately adjacent to Cook Inlet beluga whale 
critical habitat, making quantitative estimation of directly 
attributable economic costs purely speculative. In other words, since 
the precise nature of any future project modification is unknown, we 
cannot speculate whether such a potential modification ultimately 
increases or decreases project costs and by how much. Qualitatively, 
based on past experience and the best scientific and commercial data 
available, we do not expect project modifications to add significant 
monetary costs, especially since most of these modifications would 
likely be required pursuant to consultations arising under the jeopardy 
standard.
    Finally, whether any project is delayed because of a lawsuit will 
depend on whether a court determines that NMFS has violated Federal law 
and injunctive relief is appropriate. Costs associated with project 
delays due to such lawsuits are extremely speculative.
    Comment 61: A comment by ConocoPhillips asserts that a critical 
habitat designation will result in increased administrative costs to 
the company, and has the potential to result in operational and 
permitting delays and/or lead to other new costs. The independent 
economic analysis conducted by the company conservatively estimates the 
impacts to ConocoPhillips alone in the range of $698,000 to $796,000 
over 20 years. According to the company, these costs could rapidly 
escalate, if NMFS imposed even minor restrictions on ConocoPhillips' 
operations in connection with the critical habitat designation.
    Response: See response to comment 60.
    Comment 62: Some comments request the exclusion of the POA and Port 
Mackenzie from the final critical habitat designation, based on 
national security, as well as economic reasons.
    Response: After considering impacts to national security and 
weighing the benefits of exclusion with those of specifying as critical 
habitat the POA and a small, adjacent area extending to the turning 
basin, we have determined to exclude those areas from the critical 
habitat designation. The exclusion does not, however, include Port 
Mackenzie. We have determined that its inclusion as critical habitat 
does not implicate significant impacts to national security, supported 
by the fact that DOD has not asserted that there would be any. After 
considering the economic impacts of the designation, we determined that 
the benefits of excluding Port Mackenzie do not outweigh the benefits 
of specifying the area as critical habitat. The decision to exclude the 
POA is based principally on impacts to national security, which have 
been described in this rule and were identified in comments responding 
directly to our public notice requesting information on this issue. See 
detailed discussion below.
    Comment 63: A number of comments assert that, contrary to some 
perspectives in Alaska, the critical habitat designation will not 
hamper responsible development. Based on tens of thousands of reviews 
across the nation on development projects in areas containing 
endangered species, less than one percent of projects are significantly 
curtailed, because responsible development and endangered species 
protection can and do go hand in hand. The vast majority of projects 
entering the consultation process are resolved informally with a 
determination that no listed species will be impacted, nor designated 
critical habitat destroyed or adversely modified. Even where a formal 
consultation is required in instances of an identified potential 
threat, the agencies more often than not conclude that no such threat 
exists, or work with the action agency to design project alternatives. 
Only in extremely rare instances are projects terminated because of 
probable impacts on listed species.
    The comments further state that critical habitat designation does 
not affect private activities that do not require Federal permits. Nor 
is it undertaken in a vacuum: Federal agencies are already required to 
consult under section 7 of the ESA if their action could jeopardize the 
continued existence of an endangered or threatened species. Critical 
habitat designation simply adds another question for the agency to 
consider as part of the consultation: Whether the Federal agency action 
could result in the destruction or adverse modification of critical 
habitat. Any incremental cost of critical habitat designation is, 
therefore, small and limited.
    Response: We agree with the commenters. The economic analysis 
conducted in support of the Final RIR/4(b)(2)PA/FRFA is based on the 
same premise as that outlined in these comments.
    Comment 64: A number of comments demand a more robust economic 
analysis before the critical habitat designation is finalized. Further, 
these comments expressed concern with the methodology used to estimate 
the cost of the proposed designation. According to these comments, the 
current analysis is inadequate and a more comprehensive economic 
analysis needs to be conducted.
    Response: The economic analysis conducted in support of the Final 
RIR/4(b)(2)PA/FRFA employed the appropriate methods and used the best 
scientific data available to consider all relevant economic impacts and 
develop cost and benefit estimates. As required under the ESA, 
Regulatory Flexibility Act, Executive Order 12866, and other applicable 
law, the analysis considered all costs and all benefits relevant to 
assessing the net welfare changes attributable to the final action. 
These changes were monetized to the fullest extent useful estimates 
could be made or treated qualitatively when monetization was not 
practicable. These component welfare effects were then integrated in 
order to reach conclusions about the expected ``net benefit to the 
Nation'' attributable to the final critical habitat designation. While 
the commenters demand a more robust economic analysis, they do not 
provide any new or additional data. A few comments mention certain 
``costs'' that are asserted to be incremental to the critical habitat 
designation. However, many of the values identified within these 
comments are not ``economic costs,'' but instead, ``impact'' measures 
(e.g., input-output multipliers) that reflect, for example, localized 
commercial activity. As such, they do not represent economic benefits 
or economic costs, as these concepts are employed in traditional 
``benefit/cost'' analysis. Commercial activity impacts, while important 
distributional indicators, are ``transfers'' within a National 
Accounting analytical framework mandated under applicable Federal law. 
Distributional impacts are treated separately from economic costs and 
benefits in the analytical documents. Those economic costs that are 
correctly identified in these comments would, based upon NMFS' economic 
analysis, likely be incurred regardless of whether critical habitat is 
designated (also see response to earlier comments). Furthermore, there 
are fundamental and important distinctions between economic ``benefits 
and costs'' and economic ``impacts.'' The former are crucial in 
evaluating ``net welfare'' changes; that is, do the benefits exceed

[[Page 20194]]

the costs, resulting in a net gain to society. Impact measures (e.g., 
income and employment multipliers) reflect relative economic 
``activity'' in a specified locale, relative to a baseline condition.
    The commenters have confused these crucial economic concepts. With, 
for example, specific reference to comments on the FRFA, the purported 
``costs'' identified there are not relevant to the traditional cost-
benefit analysis. And, with respect to the ESA, we considered the 
economic impacts cited in these comments, but do not believe that they 
change the conclusion that the benefits of exclusion (principally 
monetary) do not outweigh the benefits (economic, ecological, 
educational, biological) of specifying the areas as critical habitat.
    Comment 65: A few comments point out that the proposed critical 
habitat area overlaps geographically with Alaska's highest human 
population density and its primary economic base. Yet, the economic 
analysis conducted in support of the Draft RIR/4(b)(2)PA/IRFA cites the 
added costs for evaluating future projects in the proposed critical 
habitat at a mere $187,000 to $571,000.
    Response: Some commenters have expressed concern about the 
designation of critical habitat in areas of high population density and 
human activities. The concerns are related to the perceived potential 
economic costs that may be imposed by critical habitat designation. The 
Final RIR/4(b)(2)PA/FRFA concludes that the economic cost of critical 
habitat designation that can be reasonably ``monetized,'' at present, 
is estimated to have a discounted net present value of approximately 
$187,000 to $571,000, assuming a 3 percent real discount rate and 10-
year planning horizon; and about $157,000 to $472,000, using a 7 
percent real discount rate and 10-year period. ``Applicants'' 
associated with section 7 consultations on the various activities that 
could be potentially impacted are only expected to bear $900 to $3,500 
per consultation in administrative costs related to the incremental 
costs of critical habitat designation for formal consultations, while 
they are not responsible for any incremental costs related to informal 
consultation. It is important to recall that section 7(a)(2) of the ESA 
applies only to Federal actions (i.e., actions authorized, funded, or 
carried out by a Federal agency). Absent such Federal action, 
activities undertaken in or adjacent to Cook Inlet are not subject to 
the provisions of section 7 consultation on critical habitat and will 
incur no attributable or quantifiable costs or other encumbrances due 
to the designation of critical habitat. Even for proposed Federal 
actions, ``applicants'' associated with consultations on activities 
such as oil and gas exploration and development, power projects, 
mining, water quality, port expansion and development, transportation 
and other infrastructure projects are not expected to bear any 
significant costs uniquely attributable (i.e., incremental) to the 
designation of critical habitat for the Cook Inlet beluga whale. Every 
Federal agency must consult under section 7 of the ESA to ensure that 
its action will not jeopardize the continued existence of the whale. 
Formal consultation is required if the proposed action ``may affect'' 
the whale (50 CFR 402.14(a)). Whether the consultation may proceed 
informally, as opposed to formal consultation, will depend on whether 
the action is likely to adversely affect the species (50 CFR 
402.14(b)).
    Comment 66: Some commenters point out that the period employed for 
the analysis, 2009 to 2018, may be insufficient, particularly when 
dealing with significant resource and community infrastructure 
operations and development. Firms in these industrial sectors must 
balance disparate time horizons for capital life, field life, field 
extension, and field depletion rates that are rarely as short as 10 
years.
    Response: As mentioned in Section 3.4 of the Final RIR/4(b)(2)PA/
FRFA, an interval of 10 years is widely employed in the policy analysis 
arena. This time-frame allows sufficient scope over which longer-cycle 
trends may be observed (e.g., progress towards population recovery for 
the Cook Inlet beluga whale), yet is short enough to allow 
``reasonable'' projections of changes in use patterns in an area, as 
well as shifts in exogenous factors (e.g., world supply and demand for 
petroleum, U.S. inflation rate trends) that may be influential.
    Comment 67: An independent study commissioned by the Resource 
Development Council (RDC) asserts that the Cook Inlet beluga whale 
critical habitat designation has the potential to result in economic 
impacts on RDC's members ranging from $39.9 million and $399 million, 
annually. Over a 10-year period (the length of time utilized by the 
Draft RIR/4(b)(2)PA/IRFA) the present value of that lost production at 
a three percent discount rate is claimed to be $340.3 million to $3.4 
billion, and at a seven percent discount rate is $280.2 million to $2.8 
billion. These numbers are asserted to be conservative and do not take 
into account, for example, the $400 million-$600 million that the 
Anchorage Water and Wastewater Utility (AWWU) may be required to spend 
to upgrade its facilities. According to RDC, even the most conservative 
estimate of $280.2 million over 10 years, representing an impact of 
only a one percent reduction in Cook Inlet region output, is 
sufficiently significant to warrant broad exclusions.
    Response: The independent study commissioned by RDC considers 
potential ``impacts'' of the proposed critical habitat designation to 
five key industries: oil and gas, mining, POA, commercial fishing, and 
sport fishing. Further, qualitative discussions of impacts on other 
projects/sectors/entities are also provided, though not quantified. 
These include tourism, Knik Arm Bridge and Toll Authority, community 
development projects, Anchorage Water and Wastewater Authority (AWWU) 
discharges, Port McKenzie, vessel traffic, and energy infrastructure.
    We reviewed and considered this report. While the RDC's Economic 
Analysis states that it ``monetizes, quantifies, or qualitatively 
assesses the incremental costs and benefits to entities directly 
attributable to the CHD,'' it is unclear if the analysis excludes the 
conservation measures already underway or which may be taken due to the 
listing of the Cook Inlet beluga whale. Economic impacts from these 
measures are not attributable to the designation of critical habitat. 
Further, given the time periods when most of the six studies relied 
upon in the RDC Economic Analysis for identifying the range of 
reductions were conducted, the impacts identified are likely co-
extensive, not incremental. Therefore, the RDC Economic Analysis 
appears to significantly over-estimate the economic costs that are 
attributable to the designation of critical habitat.
    In terms of specific study outcomes, the impacts to mining in the 
RDC Economic Analysis are based on the premise that both the Chuitna 
Coal Project and the Pebble Project will likely be completed. While 
this may be true for the Chuitna Coal Project, the Pebble Mine project 
is in the planning/pre-permitting/pre-development stage, and does not 
have an approved project description. At this time, there is reasonable 
uncertainty regarding the likelihood of this project (Pebble Project) 
occurring at all, let alone within the next 10 years. Also, many AWWU 
facilities may be required to upgrade for Clean Water Act (CWA) 
compliance, regardless of the designation of critical habitat for the 
Cook Inlet beluga whale. These costs, if incurred, are not

[[Page 20195]]

attributable to the critical habitat designation.
    As noted in response to a previous comment, the misunderstanding 
and resulting confounding of fundamental concepts of ``economic costs 
and benefits'' with ``measures of economic activity'' (e.g., employment 
multipliers) has led the commenters to derive vastly inflated 
projections of the attributable ``economic costs'' of critical habitat 
designation. Input/output multipliers do not reflect, and are not 
equivalent to, economic costs or economic benefits. They are correctly 
interpreted as location-specific ``activity measures'' reflecting the 
rate of turnover and the path of exchange, for example, of a dollar 
created within the identified economic unit (e.g., county, region, 
state), before it leaks out into the wider economy. Emphasizing that 
such relative economic activity impacts are not relevant to the 
assessment of ``net benefits to the Nation,'' we did describe and 
evaluate the temporal and geographical impacts that may accrue to 
localized economic activity, to the extent practicable.
    Comment 68: One commenter has provided suggestions to improve the 
presentation of results in the Draft RIR/4(b)(2)PA/IRFA as follows:
    Regarding the analysis of costs, the overriding conclusion from the 
[economic] analysis is that impacts on the private sector will be 
minimal. This point should be highlighted and the public sector costs 
should be clarified. In particular, Table 7.1 outlining the total costs 
(all based on ``consultation'' costs) is misleading. The numbers 
indicated are for a 10-year period total and that should be represented 
in the table itself.
    Footnote 374 is crucial to the analysis and yet unfortunately is 
buried. It should be part of the main text. The only discount rate is 3 
percent as the ``social discount rate,'' because this is a public/
social policy choice. This is accepted practice in the economics 
profession. If total costs are averaged over the 10-year period, they 
only come out to between $18,700 to $57,000 per year.
    In Section 7 of the Draft RIR/4(b)(2)PA/IRFA, there is no statement 
of the methods used to calculate costs. Once more, these are national 
averages only.
    Response: We appreciate the suggested improvements, and considered 
them when we completed the Final RIR/4(b)(2)PA/FRFA.
    Comment 69: A handful of comments assert that lost development 
opportunities resulting from the critical habitat designation will 
result in declines in both State and local tax revenue, and reduce the 
number of jobs. An example cited is that of Alaska's already struggling 
oil and gas operations, where hundreds of oil field workers and 
professionals have been laid off in recent months. The comment asserts 
that critical habitat designation will have a further crippling effect 
on such industries.
    Response: As stated in more detail in response to an earlier 
comment and in the Final RIR/4(b)(2)PA/FRFA, the designation of 
critical habitat is not anticipated to hamper development in the 
vicinity of Cook Inlet, and thus would not result in declines in State 
and local tax revenues nor lost jobs. The additional costs incurred by 
industry that can be reasonably monetized at present and are uniquely 
attributable to the critical habitat designation, would be the 
negligible third party costs of section 7 consultations (i.e., $900 to 
$3,500 per consultation in administrative costs related to the 
incremental costs of critical habitat designation for formal 
consultations; no costs to industry are incurred for informal 
consultations). The project modifications and associated costs that may 
be requested, expressly due to consultation over potential destruction 
or adverse modification of critical habitat, are anticipated to be 
minimal and rare, given that most of any such modifications would 
already be required under ESA section 7's jeopardy standard. Moreover, 
the nature of any such modification is speculative and, as a result, 
whether the modification ultimately increases or decreases project 
costs (and, by how much) cannot be determined at this time.
    Comment 70: Comments by the Chugach Electric Association, Inc. and 
the Resource Development Council of Alaska, Inc. point out that the 
Draft RIR/4(b)(2)PA/IRFA does not mention the existing high voltage 
submarine cable fields that cross Knik Arm, connecting the Anchorage 
area, as well as the Kenai Peninsula, to Chugach's existing generation 
plant near the Beluga gas fields. These cables must be maintained and 
occasionally replaced. Chugach spelled out for NMFS the potential 
economic impact of any delays in maintaining and repairing those 
cables, explaining that these delay-related costs are in addition to 
any administrative costs associated with ESA consultation, and any 
increased costs incurred by Chugach in altering its projects to benefit 
the whales.
    Response: As discussed in more detail in response to previous 
comments regarding exclusion of cable fields and overlaying waters from 
the critical habitat designation, we are not aware of any Federal 
actions in connection with the maintenance or repair of submarine 
cables, and the commenters have not indicated the existence of such 
Federal action. Therefore, absent Federal action, the proposed critical 
habitat designation would impose no compliance requirements (e.g., no 
delays, direct or indirect costs) on maintaining, repairing, or 
occasionally replacing submarine cables in Cook Inlet.
    Comment 71: One comment states that while the Draft RIR/4(b)(2)PA/
IRFA analyzed cost impacts of critical habitat designation for two 
other tidal energy projects, it should be revised to include the 
potential costs of critical habitat designation to the Turnagain Arm 
Tidal Energy Generation project, as well. The Turnagain Arm Tidal 
Energy Corporation filed an application with the Federal Energy 
Regulatory Commission (FERC) on November 17, 2009, for a preliminary 
permit to study the feasibility of a tidal energy generation system on 
the Turnagain Arm of Cook Inlet.
    Response: The Final RIR/4(b)(2)PA/FRFA analyzed economic impacts of 
critical habitat designation on projects that are reasonably likely to 
occur during the 10-year period of analysis. In November 2009, the 
Turnagain Arm Tidal Energy Corporation filed for a preliminary permit 
pursuant to section 4(f) of the Federal Power Act, proposing to study 
the feasibility of the Turnagain Arm Tidal Energy Generation project. 
According to the December 4, 2009, Federal Register document, ``the 
sole purpose of a preliminary permit, if issued, is to grant the permit 
holder priority to file a license application during the permit term. A 
preliminary permit does not authorize the permit holder to perform any 
land disturbing activities or otherwise enter upon lands or water owned 
by others without the owners' express permission.'' Therefore, while it 
appears from the proposed project description that the project, if 
approved, may affect the whale's critical habitat, the project is still 
sufficiently ill-defined, presumably undergoing design and feasibility 
assessments, that further progress towards development and submission 
of the next series of applications remain in pre-permitting stages. 
Absent more definitive design, siting, and construction information, it 
would be impossible to do more than offer uninformed speculation on the 
interaction, if any, between this potential development and designated 
critical habitat and whether the project may also affect the whale, 
requiring a consultation under section 7 due to the listing of the 
whale as an endangered

[[Page 20196]]

species. As such, it is not considered among the impacts contained in 
the Final RIR/4(b)(2)PA/FRFA's analysis.
    Comment 72: One comment states that Section 7.7 of the Draft RIR/
4(b)(2)PA/IRFA did not analyze the Mt. Spur Geothermal Power Plant 
because a decision to go forward with the plant has not been made. 
Further, Table 6-28 of the Draft RIR/4(b)(2)PA/IRFA describes the 
status of the project as ``pre-decisional, geothermal lease in place, 
no permits have been requested.'' The comment further states that given 
Ormat Technologies' (the major lease holder for the Mt. Spur Geothermal 
development) better record of success than any of the tidal energy 
companies whose projects were analyzed in the Draft RIR/4(b)(2)PA/IRFA, 
Section 7.7 should be revised to include the potential costs of 
critical habitat designation to the project.
    Response: As per Sections 6.4.7 and 7.7 of the Final RIR/4(b)(2)PA/
FRFA, based on the best scientific data available and research 
conducted by NMFS, Ormat Technologies is in the early development/
initial exploration stage of the Mt. Spurr Geothermal Power Plant, and 
no permits have been requested. Additionally, given that no specific 
preferred plan or route for the transmission line(s) have been 
identified, it is unclear whether this potential project may affect the 
Cook Inlet beluga whale and/or its critical habitat. In light of the 
fact that Ormat Technologies will have to submit a site design and 
transmission line corridor proposal, apply for and get the necessary 
permits, and secure funding to develop this project, any analysis of 
economic impacts to the potential project arising exclusively from the 
designation of critical habitat would be highly speculative.
    Comment 73: A commenter notes that Section 6.4.7 of the Draft RIR/
4(b)(2)PA/IRFA states that the Chakachamna Hydropower Plant project was 
reviewed, but determined to not have a connection with the critical 
habitat designation, due to its inland location and lack of physical 
connection with Cook Inlet. However, the project description clearly 
describes the project's planned measures to protect salmon, which are 
designated as a PCE of the critical habitat. The project would 
discharge water flow from the facility into the MacArthur River near 
its confluence with Cook Inlet. The power transmission lines may need 
to cross the MacArthur River, and potentially Cook Inlet, to reach 
Anchorage or the Kenai Peninsula. Chakachamna Power has identified the 
North Forelands Dock and Industrial Area as its logistics base for 
construction and operation of this project, which would result in an 
increase in vessel traffic through this area. A preliminary permit 
application for this project was filed with FERC on December 10, 2009. 
Because this project may affect a small portion of Cook Inlet beluga 
whales' habitat, but is highly unlikely to jeopardize the existence of 
the whales, project modification costs should be estimated. Section 7.7 
of the Draft RIR/4(b)(2)PA/IRFA should be revised to include the 
potential costs of critical habitat designation to the Chakachamna 
Hydropower Plant project.
    Response: Based on the project description provided in the 
preliminary permit application for this project, filed with the Federal 
Energy Regulatory Commission (FERC) on December 10, 2009, the 
Chakachamna Hydropower Plant project is located inland of Cook Inlet, 
including the proposed transmission lines that would connect to the 
Chugach Electric Association's Beluga substation, which is also inland 
of Cook Inlet. The commenter has not provided any supporting 
information or empirical documentation to indicate a clear physical 
connection of the project with the waters of Cook Inlet, the beluga 
whale, or its critical habitat. If, as the commenter asserts, the North 
Forelands Dock and Industrial Area is proposed as the construction 
staging site and permit authorizations are sought for that activity, a 
section 7 consultation may be required. Given currently available 
information, however, no conclusive determination can be made; thus, 
the potential economic impact to the potential Chakachamna Hydropower 
Plant project is not analyzed in the Final RIR/4(b)(2)PAFIRFA.
    Comment 74: One comment by Chugach Electric Association notes that 
the Draft RIR/4(b)(2)PA/IRFA acknowledges NMFS' obligation under 
Executive Order 13211, regarding ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use,'' to evaluate 
the impact of critical habitat designation on energy supply. However, 
the Draft RIR/4(b)(2)PA/IRFA appears to be devoid of any such analysis.
    Response: Section 10.2 of the Final RIR/4(b)(2)PA/FRFA presents the 
``Statement of Energy Effects'' pursuant to Executive Order No. 13211, 
``Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use,'' issued May 18, 2001.
    Comment 75: Two comments state that the proposed designation of 
critical habitat to protect beluga whales in the Cook Inlet does not 
describe the economic impacts of the designation on the North Slope to 
Lower 48 through Canada gas pipeline project (also referred to as 
Alaska natural gas transportation project), nor how impacts of the 
designation on the economic, environmental, energy, and national 
security interests of the nation, relative to this project, which 
Congress has endorsed, were taken into consideration and balanced in 
accordance with Section 4 of the ESA.
    Response: Research conducted by NMFS through the development of the 
Final RIR/4(b)(2)PA/FRFA revealed that the proposed North Slope to 
Lower 48 through Canada gas pipeline project, if permitted, would not 
affect the Cook Inlet beluga whales' critical habitat. No new 
information or empirical documentation has been provided by the 
commenter with which to evaluate how the project would impact the 
critical habitat or vice versa.
    Comment 76: A commenter notes that the Draft RIR/4(b)(2)PA/IRFA 
should analyze the Alaska Natural Gas Development Authority (ANGDA) 
spur pipeline to Cook Inlet. ANGDA is planning a $2 billion pipeline to 
divert a portion of the gas from the North Slope to Lower 48 through 
Canada pipeline project to Cook Inlet, to replace dwindling local 
reserves and provide processed natural gas liquids for export from a 
to-be-developed facility, through Cook Inlet. This pipeline would run 
from Delta, through Glennallen, to the Beluga gas facility near 
Wasilla.
    Response: Section 6.4.1 of the Final RIR/4(b)(2)PA/FRFA discusses 
the subject proposed pipeline, referred to as Beluga to Fairbanks 
Natural Gas Pipeline Project. Potential impacts to this project are 
included in Table 6-28.
    Comment 77: Two comments state that Escopeta Oil's Kitchen Lights 
Unit project to bring a jack-up rig to the Cook Inlet this spring and 
drill the 1 Kitchen Lights Unit well was put on hold 
indefinitely because of the proposed critical habitat designation for 
Cook Inlet beluga whale. According to the commenters, to date Escopeta 
Oil has spent over $20 million on the project (estimate by the second 
commenter is $50 million), and this proposed designation has deterred 
this initial investment away from Cook Inlet. If Ecopeta Oil is not 
allowed to drill the Kitchen Lights Unit by the Federal Government, it 
will lose its significant investment in Alaska, and the State of Alaska 
and its people will also lose a long-term supply of natural gas and the 
jobs and revenues created from the Kitchen Lights Unit development 
program. Further, should an oil and gas company desire to perform the 
costly

[[Page 20197]]

proposition of drilling an offshore well in the Cook Inlet with this 
designation, it will have to budget millions of dollars for additional 
consultations, duplicative permits, delays, legal fees, and 
litigation--without any guarantee of drilling the first well.
    Response: Section 6.4.1 and 7.1.1 and Table 6-28 of the Final RIR/
4(b)(2)PA/FRFA discuss the status and impacts to Escopeta Oil's Kitchen 
Lights Unit. Additional research conducted by NMFS reveals that the 
Kitchen Lights Unit program has a history of delays due to the company 
not being able to fulfill several commitments required not only for 
technically exploring its prospects, but also for meeting the legal 
terms of the State of Alaska's oil and gas leases. The latest available 
information suggests that, as part of its agreement with the State of 
Alaska to hold onto its Kitchen Lights leases, Escopeta Oil has to 
drill an exploration well in the unit by the end of 2010. However, 
following the proposed designation, the company asked the State of 
Alaska in a December 16, 2009, letter to guarantee no Federal 
interference in the company's Cook Inlet oil and gas drilling 
activities planned for 2010 (Petroleum News, December 20, 2009). The 
State did not offer such a guarantee (Petroleum News, December 27, 
2009). It is anticipated that, while the project's potential to affect 
critical habitat could trigger the section 7 consultation process and 
may result in project modifications, there is no evidence suggesting 
that the potential loss of initial investment in Cook Inlet activities 
by the company due to the project being put on hold is attributable to 
the designation. Future economic impacts may arise from the need to 
consult under section 7 to avoid jeopardy and/or to avoid destroying or 
adversely modifying critical habitat. However, the commenter did not 
present any evidence indicating that there would be impacts 
attributable only to the critical habitat designation, nor when in the 
future such renewed activity might be expected.
    Comment 78: One commenter notes that impacts to the $4 billion 
Enstar bullet pipeline should be considered. The proposed pipeline 
would connect Alaska North Slope gas fields through Fairbanks to the 
Beluga gas facility. This project is competing with the ANGDA spur line 
project to supply both local consumption and liquid products export. 
According to the commenter, Enstar is currently pursuing Alaska 
environmental permits for this project.
    Response: Research conducted by NMFS suggests that Enstar bullet 
pipeline, now referred to as Alaska Stand Alone Pipeline (ASAP), is in 
the preliminary planning and engineering stage. The plan, initiated 
originally by Enstar Natural Gas, is now being coordinated by the 
Alaska Governor's office. The preparation of an Environmental Impact 
Statement has been initiated. Given that the project alternatives have 
not been finalized yet, it is unclear whether the pipeline itself will 
reach the waters of Cook Inlet; however, it is possible that some 
associated facilities may be located in the vicinity. Because the 
project is in such preliminary stages, what activities it may stimulate 
in Cook Inlet and how those activities would be impacted by the 
designation of the beluga whales' critical habitat is too speculative 
for consideration in the economic analysis.
    Comment 79: The Tyonek Native Corporation states that impacts of 
the proposed critical habitat designation on the following two projects 
should be considered in the analysis:
    The Corporation is developing plans to mine and export high quality 
aggregate from its North Forelands Dock and Industrial Area using the 
existing adjacent pier, which would require modification (see http://www.tyonek.com/Presentations/tnc-wci08.pdf). According to the 
commenter, the project would result in increased vessel traffic through 
this area. This project is expected to have a total construction cost 
of approximately $20 million.
    Alaska Natural Resources to Liquids recently completed a $1.5 
million preliminary feasibility study with the help of the Alaska 
Industrial Development and Export Authority (see http://www.aidea.org/PDF%20files/BelugaCTLoverview9-20-06.pdf) on the Beluga Coal to Liquids 
Plant. Plans call for using coal from the Chuitna coal fields to 
produce 80,000 barrels per day of diesel and naphtha for U.S. West 
Coast markets. In addition, the facility would produce jet fuel and 
petrochemical feedstocks. This fuel would be shipped out of the 
existing North Forelands Dock, which would require modification, and 
result in increased vessel traffic through this area. This project is 
expected to have a total construction cost, including supporting 
infrastructure, of approximately $12 billion.
    Because these projects may affect a small portion of Cook Inlet 
beluga whale habitat, but are highly unlikely to jeopardize the 
existence of the whales, project modification costs should be 
estimated. The Corporation has requested that Sections 6.4.2, 7-2, and 
9-2-1.1 and Table 6-28 of the Draft RIR/4(b)(2)PA/IRFA be revised to 
include the potential cost impacts of critical habitat designation to 
these projects.
    Response: The commenter has not provided sufficient information 
regarding the current stages of the projects, or the likelihood of 
these occurring in the next 10 years, with which to conduct an 
evaluation of the economic impacts on these project proposals from the 
designation of critical habitat. Even if the projects were reasonably 
likely to occur during the time period under analysis, the modification 
of the North Forelands Dock would require a Federal permit, likely from 
the U.S. Army Corps of Engineers (ACOE), which would likely trigger a 
section 7 consultation (possibly two--one for each project). The 
consultation could be formal if the dock modification requires pile 
driving or informal otherwise. However, the costs associated with the 
consultation to ensure that the project does not destroy or adversely 
modify critical habitat would be co-extensive with those arising from 
the consultation to ensure that the project does not jeopardize the 
whales' existence. Such consultation is required if a Federal action 
may affect the endangered Cook Inlet beluga whale (50 CFR 402.14).
    As for the increase in vessel traffic, it would be considered an 
indirect, interrelated, or interdependent action under the 
consultation. Given that it is unclear at this point if the increase in 
vessel traffic associated with the projects would create enough noise 
to cause abandonment of habitat, the increased vessel traffic would 
likely raise questions concerning whether the action would result in 
takings of the whale. Accordingly, economic impacts associated with the 
consultation over that action would be co-extensive between the 
jeopardy and destruction/adverse modification of critical habitat 
standards.
    Comment 80: A commenter notes that the proposed critical habitat 
designation is likely to have a significant impact on exploration for 
and production of natural gas in the Cook Inlet region, which could 
directly affect the cost of electricity to Chugach Electric 
Association's customers. Chugach generates most of its electricity from 
natural gas produced in the Cook Inlet region. Designating the upper 
half of Cook Inlet, South to below Kalgin Island, as beluga whale 
critical habitat sweeps in all of the existing offshore oil and gas 
fields in the Inlet. This is likely to have an impact on all future oil 
and gas exploration in the region. The Draft RIR/4(b)(2)PA/IRFA 
contains no meaningful discussion of the impact this will have on 
future oil and gas

[[Page 20198]]

exploration and development in Cook Inlet, and no discussion of the 
resulting impact on the cost of electricity in the Railbelt region, 
where most of Alaska's population is located. These economic impacts 
should have been part of the Draft RIR/4(b)(2)PA/IRFA. When these costs 
are given their proper weight, it should be readily apparent that the 
potential benefits to the whales of an unfocused and overly broad 
critical habitat designation are outweighed by the resulting economic 
impacts.
    Response: As has been explained in more detail in responses to 
other similar comments above, oil and gas exploration activities are 
already required to comply with ESA section 7's jeopardy standard due 
to the listing of Cook Inlet beluga whale. It is the additional 
economic impacts that stem from the designation of critical habitat 
that comprise the economic impacts of section 7 consultations analyzed 
pursuant to section 4(b)(2) of the ESA.
    The comment suggests that future oil and gas exploration in Cook 
Inlet will be adversely impacted by the critical habitat designation, 
with resulting costs imposed on electricity users throughout the 
Railbelt region of Alaska, in the form of (implicitly) higher costs. We 
do not agree with these assertions for the following reasons. First, 
the incremental cost uniquely attributable to the critical habitat 
designation as it pertains to project review within Cook Inlet has been 
demonstrated to be very small. Economic impacts arising from the need 
to consult under section 7's jeopardy standard are not considered to be 
economic impacts arising from the designation of critical habitat. 
After review of the best scientific data available regarding the status 
of the beluga whale and the nature of the reasonably foreseeable 
Federal actions in and around Cook Inlet, we concluded that a 
substantial portion of the economic impacts associated with the 
designation of critical habitat are co-extensive with those arising 
from the listing decision. Second, the empirical data and commercial 
information (much of which is cited by numerous commenters referenced 
above) suggest that supplies of gas in Cook Inlet are nearing 
exhaustion. This conclusion is also evidenced in the marketplace by the 
several competing proposals to supply North Slope gas to the Cook Inlet 
region via pipeline. If, as asserted by the region's oil and gas 
industry sector representatives (see submitted comments on gas 
pipelines and critical habitat designation, above), tens of millions to 
hundreds of millions of dollars have been invested by several competing 
interests in efforts to build a gas delivery system to ``move available 
gas into the Cook Inlet region'' in response to dwindling local 
supplies, it appears that the marketplace and nature of supply and 
demand are having, and will continue to have, significant economic 
impacts on future Cook Inlet gas exploration.
    Comment 81: Several comments state that the proposed designation of 
the entire Cook Inlet as critical habitat for the beluga whale creates 
an additional stigma towards future exploration and development in the 
Cook Inlet region. The negative impact created by this designation 
creates an anti-development stigma that is contrary to the national 
energy policy and prejudices Alaska's ability to responsibly explore 
and develop its natural resources for the benefit of all Alaskans.
    Potential investors may withdraw their support for projects in the 
Cook Inlet region because of increased project costs. The additional 
costs include: compliance costs, litigation costs related to suits 
initiated by NGOs, and perhaps the greatest of all, lost opportunity 
costs resulting from loss of investment. The evaluation of the economic 
costs of critical habitat must include a complete evaluation of these 
factors by independent investigators from outside the agencies involved 
in the listing and habitat designation process.
    Response: While substantial areas of Cook Inlet are proposed for 
inclusion in this designation action, critical habitat does not extend 
to the entire inlet. Indeed, the vast majority of the lower inlet is 
not proposed for inclusion. We cannot speculate on ``stigma'' or ``loss 
of investor interest'' as no empirical evidence or analysis of such 
effects for Cook Inlet exists. Moreover, as our economic impact 
analysis indicates, most of the economic impacts on future natural 
resource exploration and development in Cook Inlet arising from ESA 
compliance requirements would exist even without the designation of 
critical habitat.
    Comment 82: A number of commenters note that the proposed critical 
habitat designation may affect barge and vessel activity in Cook Inlet, 
resulting in impacts to their projects. Critical habitat designations 
could increase costs by requiring observers on board, decrease 
efficiency by setting speed limits or time and area restrictions, and 
ultimately raise the cost of all goods, and subsequent services, paid 
for by Alaskans. Any shipping delays will have particularly significant 
consequences for this area, because shipping schedules are affected by 
tides, and delays are compounded by the fact that Anchorage has minimal 
storage capacity for goods and must carefully coordinate shipping 
schedules. Certain planned projects are anticipated to significantly 
increase vessel traffic, and commenters request these impacts be 
included in the Draft RIR/4(b)(2)PA/IRFA.
    Response: Section 7 of the ESA does not apply generically to vessel 
movement or activity. As explained previously, section 7's consultation 
requirements apply only when there is a Federal action (actions 
authorized, funded, or carried out by a Federal agency). The 
designation of critical habitat for the Cook Inlet beluga whale is not 
anticipated to require any additional restrictions on barge and vessel 
movement, above and beyond any such restrictions already being imposed 
following section 7 consultations to avoid jeopardy. Generally, where a 
proposed Federal action will result in increases in vessel traffic, 
such increases are considered indirect effects or arising from 
interrelated or interdependent actions under section 7 consultation 
regulations (50 CFR 402.02). Given that it is unclear at this point if 
the potential increases in vessel traffic associated with projects in 
Cook Inlet could create enough noise to result in the abandonment of 
critical habitat areas, the increased vessel traffic, if it were to 
represent a concern, would likely be considered a take issue. 
Accordingly, the economic impacts from that consultation would be 
attributable to the listing of the whale as an endangered species.
    Comment 83: Some comments suggest that in order to conform to the 
critical habitat designation, the Anchorage Water and Wastewater 
Authority (AWWU) must upgrade its sewage treatment plant, which would 
cost between $400 million and $1 billion. This could potentially triple 
Anchorage residents' wastewater bills. Nowhere is this reflected or 
accounted for in the Draft RIR/4(b)(2)PA/IRFA, which is clearly 
contrary to the requirements of the ESA.
    Response: Sections 6.4.6 and 7.6 and Table 6-28 of the Final RIR/
4(b)(2)PA/FRFA describe the potential costs of the proposed critical 
habitat designation to AWWU. The costs that can appropriately be 
attributed to critical habitat designation are anticipated to stem 
solely from a formal section 7 consultation. It is expected that in 
compliance with the CWA, AWWU may be required by the Environmental 
Protection Agency (EPA) to upgrade its John Asplund Wastewater 
Treatment Plant (WWTP), to meet national waste water discharge 
standards. The compliance exemption for the facility

[[Page 20199]]

has expired and EPA is currently reviewing the facility's operating 
permit. Therefore, any resulting cost associated with the upgrade or 
improvement of the plant to meet CWA mandates would not be attributable 
to the designation of Cook Inlet beluga whale critical habitat.
    Comment 84: One comment notes that the City of Kenai operates a 
wastewater treatment plant at the mouth of the Kenai River. The 
permitted discharge is into Cook Inlet. We expect, but cannot confirm, 
that the City will have to comply with new effluent standards, as a 
result of the designation. The cost of plant upgrades could range from 
$250,000 to $50,000,000.
    Response: The Final RIR/4(b)(2)PA/FRFA discusses the Kenai 
Wastewater Treatment Facility in Section 6.4.6. The facility is 
considered a major discharger under EPA standards. As discussed in the 
response to the previous comment regarding John Asplund WWTP, any 
required upgrades to the facility in order to comply with CWA standards 
would not be attributable to the critical habitat designation.
    Comment 85: One commenter states that there is increasing demand 
for coal in Pacific Rim countries. After many years of lackluster 
demand in the export coal market, prospects are looking better for 
development of a coal export business, and Cook Inlet could play a key 
role in that development. Critical habitat designation in the Port 
Mackenzie area and for the shipping lanes through upper Cook Inlet 
could be a serious impediment to coal and other export opportunities. 
Clearly, there are many opponents to coal development, and critical 
habitat designation would provide them with a powerful tool to hamper 
and potentially stop coal and other bulk commodity exports, with no 
corresponding benefit to the beluga whales.
    Response: As explained above, the designation of critical habitat 
for the Cook Inlet beluga whale is not anticipated to require any 
additional restrictions on barge and vessel movement in Cook Inlet, 
above and beyond those already being imposed following section 7 
consultations to avoid jeopardy.
    Comment 86: Several comments suggest that the proposed critical 
habitat designation could affect tourism in Southcentral Alaska. 
Holland America Cruise Lines is planning to bring numerous cruise ships 
into the POA and Homer. Future moorings by the industry could be 
decreased or eliminated as a result of a critical habitat designation. 
Subsequently, decrease in the number of visitors to Southcentral Alaska 
could transpire as limitations are placed on sport fishing, sightseeing 
cruises, and other operations. Local communities will be significantly 
impacted through decreased bed and rental taxes.
    Response: As discussed in an earlier response, the POA is not 
included in the proposed critical habitat designation because of 
impacts to national security. Therefore, future moorings at POA are not 
likely to be affected by the designation of critical habitat for the 
Cook Inlet beluga whale.
    Comment 87: A large number of comments provided both through 
written letters and orally during the public hearings assert they place 
a very great value upon, and derive substantial personal utility and 
enjoyment from, watching Cook Inlet beluga whales and having the 
opportunity to interact with the species in a wild environment. 
Further, some commenters made special note of the need to preserve this 
experience for future generations.
    Response: We acknowledge these comments on the benefits accruing to 
area residents, tourists, and other visitors to Cook Inlet, and the 
value experienced by those interested in maintaining for future 
generations the opportunity to encounter the Cook Inlet beluga whale in 
its native habitat in such close proximity to a large population 
center. We provided an extensive treatment of the theoretical 
foundations, technical considerations, and empirical methodologies that 
have been developed and applied to quantitatively measure and evaluate 
economic benefits attributable to non-market use and passive-use 
values, as reflected in these comments. We believe that the designation 
of critical habitat will play a major role in ensuring the conservation 
of the Cook Inlet beluga whale to the benefit of current and future 
generations.
    Comment 88: Several comments question the benefits of the proposed 
critical habitat designation (due to preserving the natural beauty of 
Cook Inlet) in attracting and retaining workers, and in adding value to 
visitors who recreate in the area. Concern is expressed that benefits 
in retaining workers are hypothetical and that Cook Inlet is one of the 
most pristine areas of the United States, such that workers would not 
reasonably be affected by the proposed critical habitat designation in 
their location decision. One commenter also suggested that these 
benefits can only be realized if there are jobs present that enable 
people to live and work in the Cook Inlet area.
    Response: It is well documented that quality of life factors, 
including environmental quality and recreation opportunities, enter 
into employee and business location decisions (see Love and Crompton, 
1999; Florida, R, 2000; Granger and Blomquist, 1999). To the extent 
that the proposed critical habitat designation preserves the 
environmental quality, natural resource amenities, and recreation 
opportunities in Cook Inlet, visitors and residents alike will benefit. 
It is not known how the incremental improvement in environmental 
quality, due to the proposed critical habitat designation, will affect 
the ability of any particular business or industry to attract and 
retain employees; hence, the Final RIR/4(b)(2)PA/FRFA notes that these 
benefits are likely to be ``relatively small'' and are not quantified 
in the analysis. Regarding job growth, recreation and tourism 
industries depend on aesthetic amenities, environmental quality, access 
to fish and wildlife (e.g., fishing, hunting, viewing, photographing), 
etc., and it is precisely these aspects and attributes that are 
expected to benefit due to the proposed critical habitat designation in 
Cook Inlet.
    Comment 89: Several comments expressed concern about the lack of 
quantification of benefits of the proposed critical habitat 
designation. According to some comments, this leads to an overstatement 
of speculative or hypothetical benefits, and an arbitrary and biased 
conclusion that the proposed critical habitat designation results in a 
net benefit to the Nation. Additional concern is expressed that the net 
benefit finding is not replicable, and that there is no evidence or 
factual basis for these benefits. One comment also notes that well-
being, as a measure of benefit, is ill-defined, and questions what 
`goods and services' would be provided to the public due to the 
proposed critical habitat designation that would increase well-being. 
Other comments assert that, by not quantifying benefits, the analysis 
understates the benefits of the proposed critical habitat designation.
    Response: The principal benefit of the proposed critical habitat 
designation is the avoidance of destruction or adverse modification of 
the critical habitat of the Cook Inlet beluga whale, supporting the 
conservation and recovery of this endangered species, as provided for 
under the ESA. These benefits are biological. Ancillary economic, 
socioeconomic, cultural, educational, and procedural benefits are also 
expected to accrue, associated with the designation and related 
preservation and possible incremental improvement of the inlet's 
environmental quality. Quantifying economic benefits requires 
identifying the net change in environmental amenities and service

[[Page 20200]]

flows, such as air quality, water quality, or fish and wildlife 
populations (among others), specifically attributable to, in this 
instance, the proposed Cook Inlet beluga whale critical habitat 
designation. While the degree of biological, environmental, and 
economic benefit is not readily amenable to quantification, it is known 
that relatively small changes in environmental quality and wildlife 
abundance can provide significant economic benefits (also referred to 
as increased well-being or utility) through both use and non-use 
values. Evidence of these types of values is documented in the Final 
RIR/4(b)(2)PA/FRFA. Thus, while it is not possible to monetize, or even 
quantify these benefits, the best economic data available provide 
substantial evidence that the magnitude of anticipated benefits 
outweigh the anticipated costs. This is supported by the fact that we 
have determined, based upon the best scientific data available, the 
incremental cost attributable to the proposed critical habitat 
designation is likely small, relative to the expected benefits.
    Comment 90: Several comments note that NMFS has stated it has 
little specific empirical information with which to predict how 
consultations initiated by critical habitat considerations might lead 
to any particular project modification, yet the stated primary benefit 
in the Draft RIR/4(b)(2)PA/IRFA of critical habitat is the requirement 
for consultations to ensure that action agency actions do not modify or 
destroy critical habitat. These comments assert that NMFS has not shown 
how the measurable improvement would be attributable to the proposed 
critical habitat designation and, thus, lacks a factual basis for 
estimating benefits. Similarly, several comments note that it is 
important to distinguish the incremental benefits of the proposed 
critical habitat designation from the baseline benefits of listing the 
Cook Inlet beluga whale, as well as other existing management and 
regulatory requirements.
    Response: The commenters are correct that we have stated that the 
primary benefit of critical habitat designation is the biological 
benefit that will accrue from consultations that result in avoiding or 
minimizing adverse modification or destruction of critical habitat. As 
stated in the Final RIR/4(b)(2)PA/FRFA, ``The primary driver for 
benefits from [the critical habitat designation] is a potential change 
in the quality or condition of the critical habitat absent [the 
critical habitat designation].'' Critical habitat designation is, 
fundamentally, an action to promote the conservation of the species. 
Ancillary economic, socioeconomic, educational, procedural, cultural, 
and aesthetic benefits (among others) also accrue from the critical 
habitat designation, contributing to the aggregate benefit measure. 
While the exact number of affected projects and the precise types of 
project modifications that may be uniquely attributable to the critical 
habitat designation (and not the listing of the Cook Inlet beluga 
whale) cannot be known, we reasonably assume that whatever 
modifications occur, they will contribute to the conservation of Cook 
Inlet beluga whales and generate biological benefits that yield 
associated economic value.
    We agree that, in assessing the benefits arising from the 
designation of critical habitat, we must focus on those incremental 
benefits that are uniquely attributable to the designation and not to 
the endangered listing. Our analysis endeavored to distinguish between 
such incremental and co-extensive benefits.
    Comment 91: Numerous comments emphasize the social and cultural 
importance of the beluga whale to the region, as indicated by the 
naming of places, such as Beluga Lake, in the region and the 
traditional ways that are centered on the Cook Inlet beluga whale. 
Several comments indicate that the dollar value of the social and 
cultural benefits is very high.
    Response: The Final RIR/4(b)(2)PA/FRFA discusses the cultural use 
and passive use importance of the Cook Inlet beluga whale and notes 
such examples as the traditional subsistence and cultural harvesting by 
Alaska Native groups, the naming of places, public educational 
displays, numerous technical and popular books, and the utility 
accruing to individuals from the knowledge that Cook Inlet beluga 
whales persist within their natural habitat in Cook Inlet. Cultural use 
values are recognized as real and potentially significant benefits 
deriving from the proposed critical habitat designation, but have not 
been estimated in dollar terms, owing to the complexity, high cost, and 
controversy associated with estimation of such values. Cultural values 
have been asserted by some to be unique to each group of people and, as 
such, do not readily lend themselves to monetary approximation. 
Similarly, cultural passive use values are not quantified, as there are 
not appropriate studies available upon which to base rigorous, 
quantitative estimates.
    Comment 92: A number of comments question the potential of the 
proposed critical habitat designation to increase fish stocks and 
benefit commercial and sport fisheries. Some comments cite baseline 
requirements to maintain the reproductive capacity of fish stocks as 
indicating that critical habitat will not increase stocks, while other 
comments note that, to the extent that critical habitat increases the 
Cook Inlet beluga whale population, consumption of fish by beluga 
whales will result in a net decrease in available fish for commercial 
and sport anglers. One comment also asserts that fishing will be 
limited in the proposed critical habitat designation if it is found to 
have potential adverse effects on the environment, while other comments 
note that the analysis should further assess the benefits of enhanced 
commercial and sport fisheries attributable to the proposed critical 
habitat designation.
    Response: As noted in the Final RIR/4(b)(2)PA/FRFA, it is possible 
that commercial and sport fisheries will experience small, indirect 
benefits attributable to the proposed critical habitat designation, as 
fish stocks share habitat with Cook Inlet beluga whales and benefit 
from avoidance of destruction or adverse modification of that (i.e., 
their common) habitat. Effects of the proposed critical habitat 
designation on fishing activity are likely to be limited, because most 
of the fisheries in Cook Inlet occur in state waters and are managed by 
the State of Alaska. Though speculative, were a Federal action to occur 
that implicated those fisheries, effects from their management would 
likely be considered in the cumulative effects section of the 
biological opinion (See 50 CFR 402.02). At this time, however, it is 
impossible to speculate as to what that Federal action would be and how 
the state-managed fisheries would be analyzed. As described in the 
Final Draft RIR/4(b)(2)PA/FRFA, it is anticipated that there will be an 
informal consultation, approximately every 5 years, over Federal 
management of Cook Inlet commercial groundfish fisheries, attributable 
to the designation of the beluga whales' critical habitat.
    Comment 93: Several comments question the benefit of education and 
outreach associated with the proposed critical habitat designation, and 
assert that this is a baseline benefit that accrues due to the 2008 
Conservation Plan for the Beluga Whale.
    Response: The volume of public comments received on the Draft RIR/
4(b)(2)PA/IRFA indicates the level of public awareness of this process 
and the potential for education and outreach benefits. Furthermore, the 
consultation process, itself, serves to increase

[[Page 20201]]

awareness and sensitivity in design, execution, and operation of 
proposed projects.
    Comment 94: Several comments note that the Alaska tourism industry, 
including activities such as whale watching, are important to the 
Alaskan economy and may benefit from the proposed critical habitat 
designation. These comments note that tourists are attracted to Alaska 
because of the scenic beauty and wildlife viewing opportunities, and 
protecting these assets has direct economic benefit.
    Response: As noted in the Final RIR/4(b)(2)PA/FRFA, leisure 
activities, such as fishing, whale watching, and other wildlife viewing 
may be enhanced by the proposed critical habitat designation, insofar 
as the designation prevents or mitigates degradation, destruction, or 
adverse modification of critical habitat areas. While the recreation-
related economic benefits of the proposed critical habitat designation 
are real, and potentially significant, these benefits have not been 
estimated in dollar terms because empirical data and relevant research 
are not currently available. It is reasonable to assume, nonetheless, 
that designation of critical habitat in Cook Inlet for the beluga whale 
will benefit recreation and tourism, and the businesses that depend 
upon and support these user groups.
    Comment 95: Several comments were provided regarding the comparison 
of market-based, monetary estimates of economic cost, to non-market 
benefits measured through willingness-to-pay studies and other methods. 
Some comments questioned the reliability and validity of estimates of 
non-market values, while other comments noted that there are inherent 
values to the proposed critical habitat designation that are not 
measured in the marketplace with dollar values.
    Response: Non-market valuation of species, habitats, and 
environmental amenities is an accepted and standard practice in the 
economics profession and endorsed for use by Federal agencies, when and 
where market prices do not exist. According to Office of Management and 
Budget guidelines for economic analysis of Federal regulations under 
Executive Order 12866, all benefits to society should be measured in 
cost-benefit analyses of Federal regulations, including non-market 
benefits that are not traded directly in the marketplace. The Executive 
Order stipulates that estimation of the monetary value of goods or 
services indirectly traded in the marketplace (such as whale watching 
trips and scenic views from residential homes) should be based on 
willingness-to-pay valuation methodology, using actual market 
transactions where possible. For goods that are not traded directly or 
indirectly in the marketplace, the Executive Order recommends the use 
of contingent-valuation methods to estimate economic value. At present, 
no such empirical studies have been completed for the Cook Inlet beluga 
whale or its critical habitat. We have, however, initiated just such an 
analysis. Its results are not expected to be available for several 
years. Until that time, it must suffice to observe that non-market, 
non-use, and passive-use economic values represent relevant, and very 
often significant, aspects of the benefits deriving from Federal 
actions pertaining to ESA listings and critical habitat designation. 
These estimation techniques, such as the contingent valuation method, 
have been reviewed and approved by peer review scientific panels and 
sanctioned by Federal courts.
    Comment 96: A few comments cite additional economic studies that 
could be used to develop value estimates of the proposed critical 
habitat designation, including studies from Japan, regarding the value 
of beluga whales, a study on the benefits of expanding California's sea 
otter population, and a study of the benefits of designating critical 
habitat for the lynx. Another comment asserted that ``benefits 
transfer'' estimation techniques can be applied to the estimation of 
non-market values attributable to Cook Inlet beluga whale critical 
habitat designation, using a value function.
    Response: There are numerous peer-reviewed studies, such as those 
referred to in the comments, which provide estimates that provide 
nonmarket value of species and habitat. As discussed in Appendix A of 
the Final RIR/4(b)(2)PA/FRFA, we have determined that the values from 
these studies are not directly applicable to the Cook Inlet beluga 
whale, beyond confirming that non-market and passive-use values exist 
with respect to the designation of critical habitat for the Cook Inlet 
beluga whale.
    There are approaches to quantitatively estimating the value of 
critical habitat designation, such as outlined in Kroeger (2004), a 
study referenced in the comments. Kroeger outlined a meta-analysis 
approach (which is regression analysis of several studies' results) for 
determining the per-acre net benefits for critical habitat conservation 
for lynx habitat conservation areas. Kroeger points out that generating 
benefit transfer estimates through meta-analysis could be error prone, 
if the studies used in the meta-analysis differ from the study site in 
perceived resource quality.
    Another study recommended in the comments used a meta-analysis 
approach to derive the benefits to California households of an 
increased southern sea otter population. Based on existing valuation 
literature on the species (and other rare and endangered species), this 
study estimates the non-market benefits of the species itself. This 
study thus values species based on population increases, rather than 
habitat designation. This differs from the policy context for 
estimating benefits of beluga whale proposed critical habitat 
designation, as there are no quantitative estimates available for how 
the proposed critical habitat designation will affect Cook Inlet beluga 
whale population estimates.
    Cultural values of species habitat conservation inherently differ 
by culture. Values derived in Japan, while an indicator of potential 
value, are not used in this analysis.
    Comment 97: Several comments concern the assumptions regarding the 
current environmental conditions in Cook Inlet, or regarding the effect 
of the proposed critical habitat designation on environmental 
conditions. Specifically, some comments assert that the analysis 
erroneously assumes that degradation of habitat is inevitable in the 
absence of the proposed critical habitat designation, while others 
allege that the analysis mistakenly assumes that the proposed critical 
habitat designation will improve the quality of the natural environment 
in Cook Inlet, above current levels. One commenter was concerned that 
the analysis implies that Cook Inlet is currently polluted.
    Response: The Final RIR/4(b)(2)PA/FRFA recognizes that the current 
state of Cook Inlet is suitable for the conservation and recovery of 
the species. The aim of the critical habitat designation is to bring 
about the conservation of the Cook Inlet beluga whale through the 
creation of the benefits described above. The analysis does assume 
that, in the absence of the designation, the risk of degradation is 
unacceptably high and that through consultations the risk of 
degradation otherwise occurring in connection with Federal actions in 
Cook Inlet will be reduced.

Critical Habitat

    4(b)(2) of the ESA requires us to designate critical habitat for 
threatened and endangered species ``on the basis of the best scientific 
data available and after taking into consideration the economic impact, 
the impact on national security, and any other relevant

[[Page 20202]]

impact, of specifying any particular area as critical habitat.'' This 
section also grants the Secretary of Commerce (Secretary) discretion to 
exclude any area from critical habitat if he determines ``the benefits 
of such exclusion outweigh the benefits of specifying such area as part 
of the critical habitat.'' The Secretary's discretion is limited, as he 
may not exclude areas that ``will result in the extinction of the 
species.''
    The ESA defines critical habitat under section 3(5)(A) 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.''
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement applies along with the section 7 requirement that Federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.

Physical and Biological Features Essential for Conservation

    ESA section 3(5)(A)(i) defines critical habitat to include those 
``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.'' Joint NMFS/FWS regulations for listing endangered and 
threatened species and designating critical habitat at section 50 CFR 
424.12(b) state that the agency ``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'' (also referred to as ``Essential Features'' or ``Primary 
Constituent Elements''). 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 
(5) habitats that are protected from disturbance or are representative 
of the historic geographical and ecological distributions of a species. 
These regulations go on to emphasize that the agency shall focus on 
essential features within the specific areas considered for 
designation. These features ``may include, but are not limited to, the 
following: roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dryland, water quality or quantity, geological 
formation, vegetation type, tide, and specific soil types.''
    Scientific research, direct observation, and TEK indicate fish are 
the primary prey species of the Cook Inlet beluga whale, and that 
certain species are especially important. This importance may be due to 
feeding strategies of the whales, physical attributes of the prey 
(e.g., size), the caloric value of the prey, the availability of the 
prey, and the life-history aspects of the whales, among other 
considerations. Two fish species that are highly utilized by Cook Inlet 
beluga whales are king (Chinook) salmon and Pacific eulachon 
(hooligan). Both of these species are characterized as having very high 
fat content, returning to the upper Inlet early in the spring, and 
having adult (spawning) returns which occupy relatively narrow 
timeframes during which large concentrations of fish may be present at 
or near the mouths of tributary streams.
    Analysis of stomach contents and research of fatty acid signatures 
within beluga blubber indicate the importance of other species of 
fishes and invertebrates to the diets of these whales. The most 
prominent of these are other Pacific salmon (sockeye, chum, and coho), 
Pacific cod, walleye pollock, saffron cod, and yellowfin sole. Beluga 
whales are also known to feed on a wide variety of vertebrate and 
invertebrate prey species. However, the aforementioned fish species 
occupy a prominent role in their foraging and energetic budgets and are 
considered essential to the beluga whales' conservation.
    NMFS research has considered the distribution of the Cook Inlet 
beluga whale and its correlations with behavior, habitat function, and 
physical parameters (Goetz et al., 2007). While these whales are highly 
mobile and capable of ranging over a large portion of Cook Inlet on a 
daily basis, in fact they commonly occupy very discrete areas of the 
Inlet, particularly during summer months. These areas are important 
feeding habitats, whose value is due to the presence of certain species 
of prey within the site, the numbers of prey species within the site, 
and the physical aspects of the site which may act to concentrate prey 
or otherwise facilitate feeding strategy. In upper Cook Inlet, beluga 
whales concentrate offshore from several important salmon streams and 
appear to use a feeding strategy which takes advantage of the 
bathymetry in the area. The channels formed by the river mouths and the 
shallow waters act as a funnel for salmon as they move past waiting 
belugas. Dense concentrations of prey may be essential to beluga whale 
foraging. Hazard (1988) hypothesized that beluga whales were more 
successful feeding in rivers where prey were concentrated than in bays 
where prey were dispersed. Fried et al. (1979) noted that beluga whales 
in Bristol Bay fed at the mouth of the Snake River, where salmon runs 
are smaller than in other rivers in Bristol Bay. However, the mouth of 
the Snake River is shallower, and hence may concentrate prey. Research 
on beluga whales in Bristol Bay suggests these whales preferred certain 
streams for feeding based on the configuration of the stream channel 
(Frost et al., 1983). This study theorized beluga whales' feeding 
efficiencies improve in relatively shallow channels where fish are 
confined or concentrated. Bathymetry and fish density may be more 
important than sheer numbers of fish in beluga whale feeding success. 
Although beluga whales do not always feed at the streams with the 
highest runs of fish, proximity to medium to high flow river systems is 
also an important descriptor in assigning importance to feeding 
habitats. Research has found beluga whale distribution in Cook Inlet is 
significantly greater near mudflats and medium and high flow 
accumulation rivers. (These waters were categorized in Goetz et al. 
(2007) using a digital elevation model, similar to drainage basins. A 
complete list of these waters may be found on our Web site http://www.fakr.noaa.gov/). Beluga whales are seldom observed near small flow 
tributaries.
    Cook Inlet beluga whales are preyed upon by killer whales, their 
only known natural predator. We have received reports of killer whales 
throughout Cook Inlet, and have responded to several instances of 
predation within Turnagain Arm, near Anchorage.
    Given the small population size of the Cook Inlet beluga whale, 
predation may have a significant effect on beluga whale recovery. In 
addition to directly reducing the beluga whale population, the presence 
of killer whales in Cook Inlet may also increase stranding events. We 
consider killer whale predation to

[[Page 20203]]

be a potentially significant threat to the conservation and recovery of 
these whales. Beluga whales may employ several defense strategies 
against killer whale predation. One strategy is to retreat to shallow 
estuaries too shallow for the larger killer whales. These areas might 
also provide acoustical camouflage due to their shallow depths, silt 
loads, and multiple channels.
    Because of their importance in the Cook Inlet beluga whales' 
feeding strategy, as predator escape terrain, and in providing other 
habitat values, we consider ``mudflats,'' identified here as shallow 
and nearshore waters proximate to certain tributary streams, to be a 
physical feature essential to the conservation of the Cook Inlet beluga 
whale.
    For purposes of describing and locating this feature, and after 
consultation with the author of the model presented in Goetz et al. 
(2007), we determined spatial extent of this feature may best be 
described as being within the 30-foot (9.1-m) depth contour and within 
5 miles (8.0 km) of medium and high flow accumulation rivers. These 
accumulation rivers are also waters with populations of anadromous fish 
that are important prey to Cook Inlet belugas.
    It appears Cook Inlet beluga whales have lower levels of 
contaminants stored in their bodies than other populations of belugas. 
Because these whales occupy the most populated and developed region of 
the state, they must compete with various anthropogenic stressors, 
including pollution. These whales often occur in dense aggregations 
within small nearshore areas, where they are predisposed to adverse 
effects of pollution. Beluga whales are apex predators, occupying the 
upper levels of the food chain. This predisposes them to illness and 
injury by biomagnification of certain pollutants. Another population of 
beluga whales found in the Gulf of St. Lawrence in Canada is 
characterized by very high body burdens of contaminants. There, high 
levels of PCBs, DDT, Mirex, mercury, lead, and indicators of 
hydrocarbon exposure have been detected in beluga whales. These 
substances are well-known for their toxic effects on animal life and 
for interfering with reproduction and resistance to disease. Many of 
these contaminants are transferred from mother to calf through nursing.
    Given present abundance levels, the impact of any additional 
mortalities to the extinction risk for this DPS, the sensitivity of 
beluga whales to certain pollutants, their trophic position and 
biomagnifications, the fact that large numbers of Cook Inlet beluga 
whales typically occupy very small habitats, and that their range 
includes the most populated and industrialized area of the state, we 
consider water quality to be an important aspect of their ecology, and 
essential to their conservation within both areas 1 and 2.
    Cook Inlet beluga whales do not occupy an extensive range, and are 
not known to undertake migrations. Within their occupied range, 
however, these whales move freely and continuously. The range of the 
Cook Inlet beluga whale is neither biologically nor physically uniform. 
It ranges between shallow mudflats, glacial fjords, deep waters with 
marine salinities, vegetated shallows of predominantly freshwaters, and 
areas of the upper Inlet in which heavy ice scour, extreme tidal 
fluctuations, high silt content, low temperatures, and high turbidity 
work to limit any intertidal or persistent nearshore organisms. Beluga 
whales have adapted here by utilizing certain areas over time and space 
to meet their ecological needs. While much remains to be understood of 
their ecology and basic life history, it is apparent a large part of 
their movement and distribution is associated with feeding. Feeding 
habitat occurs near the mouths of anadromous fish streams, coinciding 
with the spawning runs of returning adult salmon. These habitats may 
change quickly as each species of salmon, and often each particular 
river, is characterized as having its individual run timing. Calving 
habitat is poorly described, but may depend on such factors as 
temperatures, depths, and salinities. Predator avoidance may be a very 
important habitat attribute, and is likely to exist only in shallows 
within Turnagain and Knik Arms of the upper Inlet. Causeways, dams, and 
non-physical effects (e.g., noise) can interfere with whale movements. 
It is essential to the conservation of Cook Inlet beluga whales that 
they have unrestricted access within and between the critical habitat 
areas.
    Beluga whales are known to be among the most adept users of sound 
of all marine mammals, using sound rather than sight for many important 
functions, especially in the highly turbid waters of upper Cook Inlet. 
Beluga whales use sound to communicate, locate prey, and navigate, and 
may make different sounds in response to different stimuli. Beluga 
whales produce high frequency sounds which they use as a type of sonar 
for finding and pursuing prey, and likely for navigating through ice-
laden waters. In Cook Inlet, beluga whales must compete acoustically 
with natural and anthropogenic sounds. Man-made sources of noise in 
Cook Inlet include large and small vessels, aircraft, oil and gas 
drilling, marine seismic surveys, pile driving, and dredging.
    Anthropogenic noise above ambient levels may cause behavioral 
reactions in whales (harassment) or mask communication between these 
animals. The effects of harassment may also include abandonment of 
habitat. At louder levels, noise may result in temporary or permanent 
damage to the whales' hearing. Empirical data exist on the reaction of 
beluga whales to in-water noise (harassment and injury thresholds) but 
are lacking regarding levels that might elicit more subtle reactions 
such as avoiding certain areas. Noise capable of killing or injuring 
beluga whales, or that might cause the abandonment of important 
habitats, would be expected to have consequences to this DPS in terms 
of survival and recovery. We consider ``quiet'' areas in which noise 
levels do not interfere with important life history functions and 
behavior of these whales to be a necessity. Therefore, we consider the 
assurance of in-water noise levels that do not cause beluga whales to 
abandon or fail to access important critical habitat areas, such as 
foraging sites at river mouths, to be an essential feature. This 
feature is found in both areas 1 and 2.
    Based on the best scientific data available of the ecology and 
natural history of Cook Inlet beluga whales and their conservation 
needs, we have determined the following physical or biological features 
are essential to the conservation of this species:
    (1) Intertidal and subtidal waters of Cook Inlet with depths less 
than 30 feet (MLLW)(9.1 m) and within 5 miles (8 km) of high and medium 
flow anadromous fish streams.
    (2) Primary prey species consisting of four species of Pacific 
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific 
cod, walleye pollock, saffron cod, and yellowfin sole.
    (3) Waters free of toxins or other agents of a type and amount 
harmful to Cook Inlet beluga whales.
    (4) Unrestricted passage within or between the critical habitat 
areas.
    (5) Waters with in-water noise below levels resulting in the 
abandonment of critical habitat areas by Cook Inlet beluga whales.
    One or more of these features is found or identified within the 
designated critical habitat.

Special Management Considerations or Protection

    An occupied area may be designated as critical habitat only if it 
contains

[[Page 20204]]

physical and biological features that ``may require special management 
considerations or protection.'' It is important to note the term ``may 
require special management considerations or protection'' refers to the 
physical or biological features, rather than the area proposed as 
critical habitat. Neither the ESA nor NMFS regulations define the ``may 
require'' standard. We interpret it to mean that a feature may 
presently or in the future require special management considerations or 
protection. 50 CFR 424.02(j) defines ``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.'' We considered 
whether the PCEs indentified for Cook Inlet beluga whales may require 
special management considerations or protection. In our initial 
determination, we considered whether there is:
    (a) Presently a negative impact on the feature(s);
    (b) A possible negative impact on the feature in the future;
    (c) Presently a need to manage the feature(s); or
    (d) A possible need to manage the feature(s) in the future.
    Intertidal and subtidal waters of Cook Inlet with depths less than 
30 feet (MLLW)(9.1 m) and within 5 miles (8 km) of high and medium flow 
anadromous fish streams support important beluga feeding habitat 
because of their shallow depths and bottom structure which act to 
concentrate prey and aid in feeding efficiency by belugas. The physical 
attributes of this PCE could be modified or lost through filling, 
dredging, channel re-alignment, dikes, and other structures. Within 
navigable waters, the ACOE has jurisdiction over these actions and 
structures and administers a permit program under the Rivers and 
Harbors Act and CWA. In establishing these laws, it was the intent of 
the U.S. Congress to regulate and manage these activities. The CWA was 
created to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters. Section 404 of the CWA regulates the 
discharge of fill materials into these waters, noting concerns with 
regard to water supplies, shellfish beds, fishery areas, and spawning 
and breeding areas. The intent of Congress to protect these features 
indicates that they may require special management considerations or 
protection. Further, through the ESA section 7 consultation process, we 
may identify reasonable and prudent measures to minimize impacts to 
these features.
    Four species of Pacific salmon (Chinook, sockeye, chum, and coho), 
Pacific eulachon, Pacific cod, walleye pollock, saffron cod, and 
yellowfin sole constitute the most important food sources for Cook 
Inlet beluga whales as identified through research and as held by the 
traditional wisdom and knowledge of Alaska Natives who have 
participated in the subsistence hunting of these whales. Stomach 
analysis of Cook Inlet beluga whales has found these species constitute 
the majority of consumed prey by weight during summer/ice free periods. 
All of these species are targeted by commercial fisheries, and some are 
prized by sport fishermen. The recognition of harm due to 
overexploitation and the need for continued management underlie the 
efforts of the state and Federal government to conserve these species. 
The fisheries in State waters of Cook Inlet are managed under various 
management plans. In addition to commercial fisheries, State plans 
manage subsistence, sport, guided sport, and personal use fisheries. 
Federal fisheries management plans provide for sustainable fishing in 
Federal waters of lower Cook Inlet. These regulatory efforts indicate 
that these four fish species may require special management 
considerations or protection.
    Cook Inlet is the most populated and industrialized region of the 
state. Its waters receive various pollutant loads through activities 
that include urban runoff, oil and gas activities (e.g., discharges of 
drilling muds and cuttings, production waters, treated sewage effluent 
discharge, deck drainage), municipal sewage treatment effluents, oil 
and other chemical spills, fish processing, and other regulated 
discharges. The EPA regulates many of these pollutants, and may 
authorize certain discharges under their National Pollution Discharge 
Elimination System (section 402 of the CWA). Management of pollutants 
and toxins is necessary to protect and maintain the biological, 
ecological, and aesthetic integrity of Cook Inlet's waters. 
Accordingly, ensuring the absence of toxins or other agents of a type 
or amount harmful to beluga whales may require special management 
considerations or protection.
    Certain actions may have the effect of reducing or preventing 
beluga whales from freely accessing the habitat area necessary for 
their survival. Dams and causeways may create physical barriers, while 
noise and other disturbance or harassment might cause a behavior 
barrier, whereby the whales reach these areas with difficulty or, in a 
worst case, abandon the affected habitat areas altogether due to such 
stressors. Most in-water structures would be managed under several on-
going Federal regulatory programs (e.g., CWA). Regulation for behavior 
barriers is less clear. Any significant behavioral reaction with the 
potential to injure whales may be prohibited under the provisions of 
the ESA and MMPA. However, it is unclear whether these two acts could 
manage this proposed feature in the absence of designation of critical 
habitat and recognition of this PCE. The unrestricted passage within or 
between critical habitat areas may require special management 
considerations or protection.
    We have discussed the importance of sound to beluga whales, and 
concern for man-made noise in their environment. There exists a large 
body of information on the effects of noise on beluga whales. Research 
on captive animals has found noise levels that result in temporary 
threshold shifts in beluga whale hearing. Based on this research and 
empirical data from beluga whales in the wild, we have established in-
water noise levels that define when these animals are harassed or 
injured. We consider the threshold for acoustic harassment to be 160 dB 
re: 1 [mu]Pa for impulsive sounds (e.g., pile driving) and 120 dB re: 1 
[mu]Pa for continuous noise.
    No specific mechanisms presently exist to regulate in-water noise, 
other than secondarily through an associated authorization. Even then, 
there is some question whether the authorizing state, local, or Federal 
agency has the authority to regulate noise. Because of the importance 
of the ability to use sound to Cook Inlet beluga whales, the in-water 
noise essential feature is clearly one that may require special 
management considerations or protection.
    While these PCEs are currently subject to the aforementioned 
regulatory management, there remain additional and unmet management 
needs owing to the fact that none of these management regimes is 
directed at the conservation and recovery needs of Cook Inlet beluga 
whales. As a result, through the ESA section 7 consultation process, we 
may identify reasonable and prudent measures designed to minimize 
impacts to the PCEs. This supports the finding that each of the 
identified PCEs ``may require special management considerations or 
protection.''

Specific Areas Within the Geographical Area Occupied by the Species

    We previously identified the range of Cook Inlet belugas as of the 
time of listing (74 FR 63080; December 2, 2009)

[[Page 20205]]

to be waters of Cook Inlet north of a line from Cape Douglas to Cape 
Elizabeth. We reviewed all available information on Cook Inlet beluga 
whale distribution, habitat use and requirements, and features 
essential to the conservation of these whales. Within the occupied 
geographical area we identified two specific areas that contain 
essential physical or biological features (Areas 1 and 2).
    Area 1: Area 1 encompasses 1,909 square kilometers (738 sq. mi.) of 
Cook Inlet northeast of a line from the mouth of Threemile Creek to 
Point Possession. This area is bounded by the Municipality of 
Anchorage, the Matanuska-Susitna Borough, and the Kenai Peninsula 
borough. The area contains shallow tidal flats and river mouths or 
estuarine areas, and it is important as foraging and calving habitats. 
Mudflats and shallow areas adjacent to medium and high flow 
accumulation streams may also provide for other biological needs, such 
as molting or escape from predators (Shelden et al., 2003). Area 1 also 
has the highest concentrations of beluga whales from spring through 
fall as well as the greatest potential for adverse impact from 
anthropogenic threats.
    Many rivers in Area 1 habitat have large eulachon and salmon runs. 
Two such rivers in Turnagain Arm, Twenty-mile River, and Placer River 
are visited by beluga whales in early spring, indicating the importance 
of eulachon runs for beluga whale feeding. Beluga whale use of upper 
Turnagain Arm decreases in the summer and then increases again in 
August through the fall, coinciding with the coho salmon run. Early 
spring (March to May) and fall (August to October) use of Knik Arm is 
confirmed by studies by Funk et al. (2005). Intensive summer feeding by 
beluga whales occurs in the Susitna delta area, Knik Arm, and Turnagain 
Arm.
    Whales regularly move into and out of Knik Arm and the Susitna 
delta (Hobbs et al., 2000; Rugh et al., 2004). The combination of 
satellite telemetry data and long-term aerial survey data demonstrate 
beluga whales use Knik Arm 12 months of the year, often entering and 
leaving the Arm on a daily basis (Hobbs et al., 2005; Rugh et al., 
2005, 2007). These surveys demonstrate intensive use of the Susitna 
delta area (from the Little Susitna River to Beluga River) and 
Chickaloon Bay (Turnagain Arm), with frequent large scale movements 
between the delta area, Knik Arm, and Turnagain Arm. During annual 
aerial surveys conducted by the National Marine Mammal Lab in June and 
July, up to 61 percent of the whales sighted in Cook Inlet were in Knik 
Arm (Rugh et al., 2000, 2005). The Chickaloon Bay area also appears to 
be used by beluga whales throughout the year.
    Beluga whales are particularly vulnerable to impacts in Area 1 due 
to their high seasonal densities and the biological importance of the 
area. Because of their intensive use of this area (e.g., foraging, 
nursery, predator avoidance), activities that restrict or deter use of 
or access to Area 1 habitat could reduce beluga whale calving success, 
impair their ability to secure prey, and increase their susceptibility 
to predation by killer whales. Activities that reduce anadromous fish 
runs could also negatively impact beluga whale foraging success, 
reducing their fitness, survival, and recovery. Furthermore, the 
tendency for beluga whales to occur in high concentrations in Area 1 
habitat predisposes them to harm from such events as oil spills.
    Area 2: Area 2 consists of 5,891 square kilometers (2,275 square 
miles) of less concentrated spring and summer beluga whale use, but 
known fall and winter use areas. It is located south of Area 1, and 
includes nearshore areas along the west side of the Inlet and Kachemak 
Bay on the east side of the lower inlet.
    Area 2 is largely based on dispersed fall and winter feeding and 
transit areas in waters where whales typically occur in smaller 
densities or deeper waters. It includes both near and offshore areas of 
the mid and upper Inlet, and nearshore areas of the lower Inlet. Due to 
the role of this area as probable fall feeding areas, Area 2 includes 
Tuxedni, Chinitna, and Kamishak Bays on the west coast and a portion of 
Kachemak Bay on the east coast. Winter aerial surveys (Hansen, 1999) 
sighted belugas from the forelands south, with many observations around 
Kalgin Island. Based on tracking data, Hobbs et al. (2005) document 
important winter habitat concentration areas reaching south of Kalgin 
Island.
    Beluga whales have been regularly sighted at the Homer Spit and the 
head of Kachemak Bay, appearing during spring and fall of some years in 
groups of 10 to 20 individuals (Speckman and Piatt, 2000). Beluga 
whales have also been common at Fox River Flats, Muddy Bay, and the 
northwest shore of Kachemak Bay (NMFS unpubl. data), sometimes 
remaining in Kachemak Bay all summer (Huntington, 2000).
    Deeper mid Inlet habitats may also be important to the winter 
survival and recovery of Cook Inlet beluga whales.

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA defines critical habitat to include 
specific areas outside the geographical area occupied by the species at 
the time of listing only if the Secretary determines them to be 
essential for the conservation of the species. Section 3(3) of the ESA 
defines conservation as ``the use of all methods and procedures which 
are necessary to bring any endangered species or threatened species to 
the point at which the measures provided pursuant to this Act are no 
longer necessary.'' NMFS' ESA regulations at 50 CFR 424.12(e) state 
that the agency ``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.'' We are not including unoccupied 
areas because there is no information available indicating that any 
such area may be essential to the conservation of the species.

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 habitat and, when carried out, funded, 
or authorized by a Federal agency, require consultation under section 7 
of the ESA. These same activities may also be affected by the 
designation. Such activities include: Coastal development; pollutant 
discharge; navigational projects (dredging); bridge construction; 
marine tidal generation projects; marine geophysical research; oil and 
gas exploration, development, and production; DOD activities; and 
hydroelectric development. We do not propose to include in critical 
habitat any manmade structures and the land on which they rest within 
the described boundaries that were in existence at the time of 
designation. While these areas would not be directly affected by 
designation, they may be affected if a Federal action associated with 
the area/structure (e.g., a discharge permit from the EPA) might have 
indirect impacts to critical habitat.
    We assessed those actions that may destroy or adversely modify this 
critical habitat by considering recent agency guidance on conducting 
adverse modification analyses. Here we apply the statutory provisions 
of the ESA, including those in section 3 that define ``critical 
habitat'' and ``conservation,'' to

[[Page 20206]]

determine whether a proposed action might result in the destruction or 
adverse modification of critical habitat. We have not relied on the 
regulatory definition of ``destruction or adverse modification'' at 50 
CFR 402.02 because that definition has been struck down by courts. See 
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 
(9th Cir. 2004). As discussed in our economic report on this 
designation, each action is reviewed on a case-by-case basis. Without 
knowledge of, or ability to predict, the specifics of a particular 
action or activity, it is not possible to list all those that may 
adversely modify critical habitat. Depending on the specific details of 
any action, any of the aforementioned activities that may affect 
critical habitat might also result in its adverse modification.

ESA Section 4(a)(3)(B)(i) Analysis

    The ESA was amended by the National Defense Authorization Act for 
Fiscal Year 2004 (Pub. L. 108-136) to address the designation of 
military lands as critical habitat. ESA section 4(a)(3)(B)(i) states: 
``The Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the DOD, or designated 
for its use, that are subject to an integrated natural resources 
management plan prepared under section 670a of this title [section 101 
of the Sikes Act], if the Secretary determines in writing that such 
plan provides a benefit to the species for which critical habitat is 
proposed for designation.''
    The Eagle River Flats Impact Area (ERFIA), a military live-fire 
practice range on Joint Base Elmendorf-Richardson, near Anchorage, 
provides training in artillery such as mortars. While the boundaries 
for the ERFIA (i.e., the MHHW line) do not overlap with the proposed 
critical habitat, the firing range includes the lower reaches of Eagle 
River which could have been included in the designation (similar to the 
Susitna and Little Susitna Rivers). Research by the DOD has documented 
beluga whale use, including feeding behavior, within this portion of 
Eagle River. Having consulted with the U.S. Army Garrison, Alaska, and 
reviewed its 2007-2011 INRMP, we have determined and set forth in 
writing here that the plan provides benefit to the Cook Inlet beluga 
whale. The INRMP establishes coordination and consultation mechanisms 
with NMFS on issues which may affect Cook Inlet beluga whales, and 
provides specific means to reduce potential harm due to military 
actions on the garrison. Some of these benefits include restrictions on 
access to habitat areas utilized by beluga whales, mitigation measures 
to reduce potential harassment or injury to beluga whales from activity 
at the ERFIA, and implementation of research programs regarding the 
habitat use of Cook Inlet belugas in and adjacent to DOD property at 
Joint Base Elmendorf-Richardson, Alaska. For the foregoing reasons, we 
have determined pursuant to section 4(a)(3)(B)(i) that the beluga 
habitat areas occurring here (specifically; within the ERFIA) do not 
qualify as critical habitat.
    In response to the ANPR, we received a request from the U.S. Air 
Force to exempt other portions of Joint Base Elmendorf-Richardson from 
the designated critical habitat. The Air Force sought this exemption 
based on the existence of an INRMP, consistent with Public Law 108-136.
    The landward boundary of critical habitat (MHHW) would overlay the 
seaward military boundaries for Joint Base Elmendorf-Richardson, which 
have been established as MHW. Because the areas between MHHW and MHW 
are predominately unvegetated mudflats at relatively high elevations 
(or shallow depths) rarely used by beluga whales, and because all lands 
of Joint Base Elmendorf-Richardson are administered under an INRMP 
which we found to provide benefit to Cook Inlet beluga whales, these 
areas were also determined to be ineligible for designation as critical 
habitat.

ESA Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA states that the Secretary must designate 
and revise critical habitat on the basis of the best scientific data 
available after taking into consideration the economic impact, the 
impact on national security, and other relevant impacts of specifying 
any particular area as critical habitat. The Secretary of Commerce may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as critical habitat, unless he determines that failure to 
designate that area would result in the extinction of the species. In 
making that determination, the legislative history is clear that the 
Secretary has broad discretion regarding which factors to use and how 
much weight to give any factor. Because the authority to exclude is 
discretionary, exclusion is not required for any area. The section 
4(b)(2) considerations are more fully described in the proposed rule. 
In the following sections, we address the issues relevant to our 
determinations under this section.

Economic Analysis

    We conducted an analysis of the economic impacts of the proposed 
designation of critical habitat for the Cook Inlet beluga whale, under 
the mandates of the ESA, Executive Order 12866, Regulatory Flexibility 
Act, and other applicable law. Each prescribes the analytical frame-of-
reference, methodology, interpretive context, and threshold criteria 
that must be adhered to. These include, but are not limited to, a 
national accounting stance, use of traditional cost/benefit analytical 
techniques, emphasis on changes in domestic surplus measures, whether 
and how impacts accrue to, and distribute across, specific populations 
of concern (e.g., small entities, minority communities, tribal 
authorities). The economic analyses were further required to (and, to 
the fullest extent practicable, do) employ the best scientific data and 
commercial information available. The analyses underwent a series of 
systematic technical reviews by agency scientists, attorneys, and 
administrators, resulting in significant revisions and refinements, 
both prior to, and after formal public presentation and comment 
periods. The draft analysis report was made available for public review 
and comment on our regional Web site. Substantive comments and 
information received on the analysis are summarized above and are 
incorporated into the final 4(b)(2) analysis, as appropriate. Taking 
into account all new and relevant information, we have completed a 
final economic analysis. That analysis is also available on our Web 
site (see ADDRESSES above). NMFS considered the conservation benefits 
to the Cook Inlet beluga whale of designating two areas; the economic 
benefits of excluding particular areas within the two areas; and the 
national security benefits of excluding particular military sites and 
associated assets owned, heavily utilized, highly depended upon, or 
controlled by the DOD; and other relevant impacts or benefits, such as 
impacts to tribal interests, raised through the public comment process.

Benefits of Designation

    The primary benefit of designating critical habitat for any 
endangered species is that, upon designation, section 7 of the ESA 
requires all Federal agencies to ensure actions they authorize, fund, 
or undertake are not likely to destroy or adversely modify habitat 
critical for the conservation and recovery of the listed species. This 
is in addition to the ESA's requirement that all Federal agencies 
ensure their actions

[[Page 20207]]

are not likely to jeopardize the species' continued existence. Another 
benefit of designation is that it provides notice of areas, PCEs, and 
features important to species conservation, and information about the 
types of activities that may reduce the conservation value of the 
habitat. Such notice will focus future consultations on key habitat 
attributes and avoid unnecessary attention to other, non-essential 
habitat features.
    Critical habitat designation may also trigger complementary 
protections (i.e., benefits) under state or local regulations. In 
addition to the direct benefits of critical habitat designation 
accruing to Cook Inlet beluga whales, there are indirect benefits. 
These benefits may be economic in nature (whether market or non-market, 
consumptive, non-consumptive, or passive), educational, cultural, and 
sociological, or they may be expressed through beneficial changes in 
the ecological functioning and service flows of Cook Inlet, which 
themselves yield ancillary welfare gains (e.g., improved quality of 
life) to the region's human population.
    All these benefits are also relevant to the evaluation of the ``net 
benefit to the Nation'' attributable to critical habitat designation 
for the Cook Inlet beluga whale. For example, Cook Inlet is one of the 
``premier tourist destinations'' in Alaska, and local economies 
throughout the inlet and surrounding region provide support services 
to, and benefit directly from, tourism. Beluga whales are widely 
identified with Cook Inlet and aggressively promoted as a ``unique'' 
and high value component of the Cook Inlet tourism experience. In 
addition, many local residents express strong affinity for the beluga 
whales and place significant ``value'' on the opportunity to encounter 
this whale in the wild. Federal, state, regional and local governments, 
Alaska Native peoples, civic groups, non-governmental organizations, 
and private citizens in the region have invested considerable money, 
time, and effort to promote, educate, inform, and advocate for the Cook 
Inlet beluga whale population (e.g., roadside visitor's centers and 
interpretive sights focusing public attention on, and enjoyment of, the 
resident beluga whale population). It follows that conservation and 
recovery of the Cook Inlet beluga whale population, resulting, in part, 
from designation of its critical habitat, would enhance the ``value'' 
tourists (and other travelers) to the inlet receive from visiting the 
region, and simultaneously benefit the tourism, hospitality, and 
affiliated services sectors.
    Residents of Cook Inlet communities and surrounding areas who value 
the beluga whale would also be expected to experience a welfare gain, 
as conservation of the whale's critical habitat results in an enhanced 
beluga whale population, in turn, making opportunities for sightings 
and observation more probable and frequent. With sufficient recovery, 
subsistence users could benefit from the restoration of their 
traditional uses of Cook Inlet beluga whales. Another benefit of 
designation could be the increased abundance and sustained viability of 
Cook Inlet salmon populations, if the environmental and ecological 
functions of the inlet upon which they depend are sustained or enhanced 
by beluga whale critical habitat designation.
    Cook Inlet salmon runs support a myriad of uses and users, 
including: commercial fisheries and associated support sectors; 
recreational anglers, guides, lodges and lodging, transportation, 
support and affiliated businesses; subsistence communities; and 
personal use fishermen. Salmon constitute a critical resource for non-
human users, as well. Four of the five Pacific salmon species native to 
the region are listed as PCEs of Cook Inlet beluga whale critical 
habitat. At various life stages, salmon support many other marine and 
terrestrial organisms (i.e., mammals, birds, and fishes) as prey 
species. Ancillary benefits from Cook Inlet beluga whale critical 
habitat designation may accrue through protection and enhancement of 
vital components and characteristics of the critical habitat relied 
upon and exploited by a vast array of species.
    It is not presently feasible to monetize, or even quantify, each 
and every component part of the comprehensive benefit accruing from 
designation of critical habitat for the Cook Inlet beluga whale. We 
augmented the quantitative measurements that have been presented with 
qualitative and descriptive assessment techniques, as provided for in 
Executive Order 12866 and OMB Circular A-4.
    With respect to the qualitative elements of this impact analysis, 
we have systematically assessed the expected benefit of designating the 
two critical habitat areas based upon their individual physical, 
ecological, and biological features and functions. Each area was 
evaluated on the basis of frequency, duration, seasonality, and 
behavioral characteristics (e.g., foraging, predatory avoidance, 
breeding, calving) of use by the beluga whales. These were (to the 
extent practicable) correlated with site-specific human activity 
mappings in each area that, through an assumed need for Federal 
authorization, permits, or funding, might require one or more future 
ESA section 7 consultations stemming from this critical habitat 
designation. Based upon available information pertaining to specific 
structural design elements, physical attributes, construction materials 
and techniques, development scheduling and duration, etc., for each 
such identified federally authorized activity, the likelihood and 
nature of any substantial physical, design, or schedule modification 
(or other accommodation) of an anticipated Federally authorized 
activity were analyzed.
    The benefit of a comprehensive designation also depends on the 
inherent conservation value arising from the complementary contribution 
each area makes to the whole. The two identified critical habitat areas 
for the Cook Inlet beluga whales are unique and irreplaceable. It is 
difficult to isolate the value contributed by one area, as each of the 
two areas supports a distinct and crucial aspect of the Cook Inlet 
beluga whales' life history. The designation of each particular area 
(i.e., Area 1 and Area 2) is essential to the conservation function of 
the whole. On the collective basis of these assessments, evaluations, 
and analyses, we conclude that there is substantial and compelling 
evidence that the aggregate (i.e., monetized, quantifiable, and 
qualitative) conservation benefits of designating the two particular 
areas identified as critical habitat for Cook Inlet beluga whales is 
high. By contrast, the expected costs, including those we could 
monetize, as well as those that can only be qualitatively characterized 
at this time, such as unspecified design modifications to potential 
projects, are relatively modest in comparison. Based on past experience 
and our professional judgment, we expect design modifications 
attributable solely to the designation of critical habitat will occur 
rarely. In the event that such a modification was to occur, it could 
require substantial costs, but it is also possible that the 
modification would decrease overall project costs. There is no 
information available at this time to provide any reasonable estimate 
of costs for the rare and speculative project modifications 
attributable solely to the designation of critical habitat.

Economic Benefits of Exclusion

    The economic impact analysis and preparatory 4(b)(2) assessment, 
prepared in connection with the designation of critical habitat, 
describe: the actions and activities within Cook Inlet that we estimate 
have some potential to be

[[Page 20208]]

impacted by the designation; the potential nature of modifications that 
might be required to avoid adversely modifying or destroying critical 
habitat; and the expected economic impacts that may accompany such 
modifications.

Consideration of Benefits of Exclusion Versus Benefits of Designation 
of Particular Areas

    After directing NMFS to consider the economic impact, the impact to 
national security, and other relevant impacts of specifying a 
particular area as critical habitat, section 4(b)(2) of the ESA 
provides that the Secretary may exclude any area from critical habitat 
if he determines that the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat, 
unless such exclusion will result in the extinction of the species. The 
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 other aspects of designation will ameliorate those 
threats. If a particular action or activity, which is authorized, 
funded, or carried out by the Federal Government, may destroy or 
adverse modify critical habitat (as distinct from the ``jeopardy'' 
prohibition under section 7), one may isolate and measure the 
incremental benefit of designation, beyond those protections also 
provided by virtue of the listing.
    We have endeavored to identify the categories of actions and 
activities within each of the two proposed designated areas that may 
have the potential to destroy or adversely modify critical habitat. 
Based upon these categorical lists, the analysis has, to the extent 
possible in light of the best scientific data and commercial 
information available, identified and analyzed project-specific impacts 
attributable to the proposed designation. With a few notable exceptions 
identified in the analyses, detailed engineering design, construction 
methods, materials, and schedules, and financing/investment/cost 
information are not readily available on a project-by-project basis, 
particularly for plans that are far off into the future. 
Notwithstanding these empirical data limitations, we have 
systematically and objectively evaluated the likely economic impact to 
future development and use uniquely attributable to the beluga whale 
critical habitat designation in Cook Inlet.
    We have determined that designation of critical habitat will 
enhance the nation's welfare by augmenting the Federal Government's 
ability to conserve this endangered species and ensuring Federal 
actions do not destroy or adversely modify habitat critical to that 
end. This outcome would be facilitated through ESA section 7 
consultations and through ongoing public involvement, outreach, 
information, and education.
    The benefits of exclusion of any particular area, as contemplated 
under section 4(b)(2), involve many of the same considerations 
identified in assessing the benefits of designation. Among these would 
be the likelihood or expectation of a Federal action occurring within 
the particular area under scrutiny. Should such an action or activity 
be identified, it could trigger one or more of the ESA section 7 
consultation requirements. If any such consultation resulted in the 
determination that the action would destroy or adversely modify 
critical habitat (or jeopardize the continued existence of the 
species), we would attempt to identify reasonable and prudent 
alternatives that allow the project to go forward but avoid adverse 
modification/jeopardy by changes to design, construction practices, or 
scheduling. For the benefit-of-designation side of the equation, it is 
the incremental cost of designation incurred (or, if exclusion of any 
particular area is justified, the incremental cost avoided), uniquely 
attributable to designation, that should, to the extent practicable, be 
evaluated. By disentangling the sources of section 7 consultation 
effects, we can more appropriately weigh those incremental costs of 
designation, distinct from the cost associated with listing and the 
jeopardy prohibition.
    In balancing the potential costs of designation, we considered the 
nature of the threats to critical habitat and the relevance to these 
threats of ESA section 7's requirement that Federal actions avoid 
causing the destruction or adverse modification of critical habitat. 
Because in the present case the condition of adverse modification is 
likely to be associated with certain work along the Cook Inlet 
shoreline (and in-water construction and development), and because some 
modifications to design, construction practices, or scheduling of such 
projects are possible as a result of consultation, we gave these costs 
of designation moderately high weight. Such construction and 
development has the potential to alter several of the identified PCEs 
of beluga whale habitat, including, but not limited to, in-water noise 
levels, access to passage corridors, and access to shallow areas for 
feeding, breeding, or predator escape use. Further, we recognize that 
the adverse modification/destruction of critical habitat criterion 
bears a strong relationship to water quality management (e.g., 
municipal waste water discharge, oil spills, gas and oil drilling 
discharges, dredge spoils disposal, bilge and ballast discharges), but 
we lack sufficient point-source and project-specific data to 
quantitatively estimate any potential attributable economic impact. 
Nonetheless, we recognize their significance and qualitatively assigned 
these costs of critical habitat designation a moderate weight.
    However, our analysis found few cases where these costs were not 
co-extensive. We evaluated these incremental costs (i.e., costs beyond 
those associated with the jeopardy standard), and concluded that the 
economic benefits of excluding any particular area do not outweigh the 
conservation benefits of including each particular area within the 
critical habitat designation, given the endangered status of the 
whales, the uniqueness and irreplaceable attributes of the habitat, and 
the fact that designation will enhance the ability of an ESA section 7 
consultation to facilitate cost effective and successful protection of 
this critical habitat.

Exclusion for National Security Reasons

    We received a request from the Port of Anchorage to exclude both 
the Port of Anchorage and Port MacKenzie from critical habitat 
designation based on national security considerations. While the DOD 
itself did not make a request to exclude the POA, DOD has designated 
the POA as one of nineteen Strategic Ports, which forms the basis for 
our exclusion. NMFS conferred with the Alaska Command after the request 
from the POA for the exclusion and the Alaska Command confirmed that 
the POA is a strategic port that could be excluded from critical 
habitat designation. Both the Port of Anchorage and Port MacKenzie are 
within the boundaries we proposed for critical habitat designation and 
include docking facilities, nearshore areas and structures such as 
docks, piers, and wharfs, and offshore navigational channels, turning 
basins, anchorage areas, and areas with security restrictions enforced 
by the U.S. Coast Guard (USCG).
    In making its request for an exclusion, the POA asserts that it is 
strategically important for military readiness. The DOD did not request 
the exclusion of the POA, but confirmed, through the Alaskan Command, 
that the U.S. Army's worldwide deployments from Alaska go through the 
POA, and that since 2005, over 18,000 pieces of military-related

[[Page 20209]]

cargo-combat vehicles, weaponry, and support equipment have passed 
through the POA on their way to and from the Middle East and training 
grounds in the Lower 48 and the Western Pacific.
    In addition, the POA is one of nineteen ports designated by the DOD 
as a Strategic Port. There are four military bases located in Alaska 
(Joint Base Elmendorf-Richardson, Eielson AFB, Ft. Wainwright, and Ft. 
Greely), and the POA supports the U.S. military in Alaska as its 
primary source of daily operating supplies. Over 33 million gallons of 
aviation fuel for the military are offloaded annually at this port.
    Thus the U.S. military's ability to deploy to combat theaters 
around the globe is heavily dependent on sealift through the POA. 
Particularly in times of active warfare, it is critical that there be 
no unnecessary delays in deployment or reductions in military 
readiness. In short, the POA plays a vitally important role in ensuring 
the readiness of military operations in Alaska.
    We have conferred with the Alaskan Command and conclude that the 
benefits of exclusion outweigh the benefits of inclusion. The principal 
benefit from excluding the POA is avoiding the risk that the 
designation might impede the POA's operations or otherwise result in a 
reduction in military readiness. The costs of including the area as 
critical habitat generally include the costs (including delays) 
associated with ESA section 7 consultation under the destruction/
adverse modification of critical habitat standard, any change in the 
POA's activities or functions necessary to avoid adverse modification 
or destruction of critical habitat, and any concomitant reduction in 
military readiness. Given that the DOD has stated the POA is critical 
to military operations in and deploying out of the State of Alaska, any 
delays in military movements through the POA could reduce the ability 
of the military to ensure national security.
    By contrast, we believe the benefits to the conservation of the 
Cook Inlet beluga whale from designating the particular area subject to 
the exclusion as critical habitat are small. Even with the exclusion, 
Federal agencies would still have to consult to ensure that their 
activities do not jeopardize the continued existence of the Cook Inlet 
beluga whale, which would include any direct, indirect, or cumulative 
effects of the action on critical habitat adjacent to the excluded 
area. Moreover, any Federal actions at the POA that may adversely 
affect or destroy critical habitat areas not excluded by this rule 
would remain subject to all of section 7's consultation requirements. 
Therefore, most of the conservation benefits will accrue despite the 
exclusion.
    In assessing the impacts of this critical habitat designation on 
national security, we considered the following factors: (1) The size of 
the particular area requested for exclusion relative to the area 
proposed for critical habitat designation; (2) the likelihood of a 
consultation with the DOD, or of a consultation having direct impact on 
DOD in this area; (3) the intensity of use of the area by the DOD; (4) 
the likelihood that DOD activities would destroy or adversely modify 
the critical habitat; (5) the level of protection provided to one or 
more PCEs by existing DOD safeguards, and (6) the likelihood that other 
Federal actions may occur in the particular area that would no longer 
be subject to the critical habitat provisions if the area were excluded 
from designation.
    Factors 1, 3, 4, and 6 weigh in favor of the exclusion. The area 
excluded is very small in contrast to the area included--less than 1 
percent of the habitat proposed for designation in Cook Inlet. It 
appears unlikely that most DOD activities associated with the POA would 
require consultation on critical habitat because cargo loading and ship 
movement should not affect that habitat or the identified essential 
features. There appears little probability that DOD activities here 
would be likely to destroy or adversely modify critical habitat. 
Finally, there are no other Federal actions expected to occur that 
would no longer be subject to the critical habitat provisions if the 
area were excluded from designation. As for the remaining factors, 
factor 2 is neutral, and factor 5 weighs against granting the exclusion 
since we are unaware of any existing protections provided by DOD to the 
PCEs within the excluded area.
    We also considered the high priority placed on national security, 
the potential for designation of critical habitat to impact military 
readiness, and the total habitat value represented by this area. Based 
on our assessment of these considerations, we conclude that benefits to 
national security of exclusion outweigh the conservation benefits of 
inclusion. We, therefore, are not designating the POA, nor its 
immediately adjacent offshore operational area, as critical habitat. 
See Figure 1 for the specific areas and excluded area.
    While the POA exclusion area contains some of the essential 
features of this critical habitat, those features exist throughout the 
designated habitat and are not unique to the POA area. The area of the 
POA is less than 1 percent of the available habitat within Cook Inlet, 
and its exclusion would not be likely to result in the extinction of 
this DPS.
    Port MacKenzie is not listed as a Strategic Port, nor is it 
currently adjacent to military lands, accessible by a major road 
system, utilized for munitions transfers, or serviced by rail. We 
received no supporting recommendations for this exemption from the DOD, 
and did not find substantial evidence of impacts to national security 
because of Port MacKenzie's inclusion as critical habitat. In light of 
the conservation benefits described in this rulemaking from its 
inclusion, we decline to exercise our discretion to exclude Port 
MacKenzie from the critical habitat designation.

Conclusions

    With one exception, we conclude that the benefits from excluding 
any and each particular area do not outweigh the benefits of 
designation as critical habitat, upon consideration of: (1) The 
functional role of critical habitat and its essential features in the 
conservation of Cook Inlet beluga whales; (2) the benefits of 
designation to Cook Inlet beluga whales in terms of enhanced ability to 
protect or conserve this habitat under ESA consultation; and (3) the 
economic costs borne by any and each particular area's inclusion. We 
conclude that, based on consideration of the impact to national 
security, the benefits from excluding the POA from the critical habitat 
designation outweigh those for its inclusion, and we have determined 
not to designate this particular area as critical habitat for the Cook 
Inlet beluga whale.

Critical Habitat Designation

    This final rule will designate as critical habitat for the Cook 
Inlet beluga whale 7,800 square kilometers (3,013 square miles) of 
marine and estuarine area in Cook Inlet, Alaska, within the 
geographical area occupied by this species. In determining this 
critical habitat, we considered comments received in response to the 
Advance Notice of Proposed Rulemaking (74 FR 17131; April 14, 2009), 
the proposed rule (74FR 63080; December 2, 2009), peer review, public 
hearings; sighting reports, satellite telemetry data, TEK, scientific 
papers and other research; the biology and ecology of the Cook Inlet 
DPS of beluga whales; and information indicating the presence of one or 
more of the identified PCEs within certain areas of their range. We 
designate

[[Page 20210]]

critical habitat within two areas of Cook Inlet.
    The designated critical habitat does not include two areas for 
which the military has provided an INRMP that we have determined 
provides benefits to the Cook Inlet beluga whale pursuant to section 
4(a)(3)(B)(i) of the ESA: (1) The Eagle River Flats Range on Fort 
Richardson; and (2) military lands of Joint Base Elmendorf-Richardson 
between Mean Higher High Water and Mean High Water. In addition, we 
have determined that the benefits of excluding the Port of Anchorage 
and adjacent navigation channel and turning basin outweigh the benefits 
of including it because of national security reasons, and excluding 
these areas will not result in the extinction of the Cook Inlet beluga 
whale. We are not designating any unoccupied geographical areas as 
critical habitat.

Classification

Regulatory Planning and Review (Executive Order 12866)

    This final rule has been determined to be significant for purposes 
of E.O. 12866. The economic benefits and costs of this critical habitat 
designation are described in our economic report supporting this 
rulemaking.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, whenever an agency is required to publish a notice of proposed 
rulemaking for any proposed rule, it must either certify that the 
action is not likely to result in significant adverse economic impacts 
on a substantial number of small entities; or 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 a final regulatory flexibility analysis (FRFA), as 
part of our economic analysis. Responses to comments on this document 
are provided above in the preamble to the rule, and any necessary 
changes were made to the FRFA.
    The reasons for the action, a statement of the objectives of the 
action, and the legal basis for the final rule are discussed earlier in 
the preamble. A summary of the analysis follows.
    The small entities that may be directly regulated by this action 
are those that seek formal approval (e.g., a permit) from, or are 
otherwise authorized by, a Federal agency to undertake an action or 
activity that ``may affect'' critical habitat for the Cook Inlet beluga 
whale. Submission by a small entity of such a request for a Federal 
agency's approval would require that agency (i.e., the ``action 
agency'') to consult with NMFS (i.e., the ``consulting agency'').
    Consultations vary from simple to highly complex, depending on the 
specific facts of each action or activity for which application is 
made. Attributable costs are directly proportionate to complexity. In 
the majority of instances projected to take place under this critical 
habitat designation, these costs are expected to accrue solely to the 
Federal agencies that are party to the consultation. In only the most 
complex formal consultations, a private sector applicant might incur 
costs directly attributable to the designation consultation process. 
For example, if the formal consultation concludes that the proposed 
activity is likely to destroy or adversely modify critical habitat, the 
applicant will have to implement modifications to avoid such effects. 
These modifications have the potential to result in adverse economic 
impacts, although they need not necessarily do so.
    An examination of the Federal agencies with management, 
enforcement, or other regulatory authority over activities or actions 
within, or immediately adjacent to, the designated critical habitat 
area, resulted in the following list: The ACOE, EPA, Minerals 
Management Service (MMS), Maritime Administration (MARAD), USCG, DOD, 
NMFS, Federal Highway Administration (FHWA), Federal Energy Regulatory 
Commission (FERC), and Federal Aviation Administration (FAA). 
Activities or actions that require Federal authorization, permits, or 
funding, and which may be expected to require some level of 
consultation, include: COE permits for structures and work in waters of 
the United States; EPA permitting of discharges under the National 
Pollutant Discharge Elimination System; MMS oil and gas exploration and 
production permitting in Federal waters of Cook Inlet; MARAD permits 
for the POA expansion; USCG permits for spill response plans; DOD 
activities at Joint Base Elmendorf-Richardson facilities; NMFS 
authorizations of commercial fisheries, and review of subsistence 
harvest allowances; FHWA funding of highway and bridge improvements 
along Turnagain Arm; FERC permits for turbine electrical generation 
projects (wind and tidal); and FAA permitting of regional airport 
expansions and development.
    A 10-year ``post-critical habitat designation'' analytical horizon 
was adopted, during which time NMFS may reasonably expect to consult on 
critical habitat-related actions with one or more of the action 
agencies identified above. The majority of the consultations are 
expected to be ``informal'' (we estimate 90 percent of all 
consultations would be informal). In each of these, no adverse impacts 
would accrue to the entity or applicant requesting Federal action. The 
more complex and costly formal consultations are projected to account 
for, perhaps, ten percent. Here, NMFS and the Federal action agency may 
develop alternatives that prevent the likelihood that critical habitat 
will be destroyed or adversely affected. The extent to which these 
formal consultations will result in more than de minimus third party 
costs, as well as whether such third parties constitute small entities 
for Regulatory Flexibility Act purposes, cannot be predicted. Often, no 
consultation will be necessary, as all questions can be resolved 
through the ``technical assistance'' process.
    We lack sufficient information to estimate precisely the number of 
consultations that may result in a determination of destruction or 
adverse modification to critical habitat. However, on the basis of the 
underlying biological, oceanographic, and ecological science used to 
identify the PCEs that define critical habitat for the Cook Inlet 
beluga whale, as well as the foregoing assumptions, empirical data, 
historical information, and accumulated experience regarding human 
activity in Cook Inlet, we believe that various federally authorized 
activities have the potential to ``destroy or adversely modify'' Cook 
Inlet beluga whale critical habitat. While we are unable to predict in 
advance exactly which activities might result in the destruction or 
adverse modification of the designated critical habitat, we note that 
such activities are restricted to those actions impacting the 
identified essential features, or PCEs. Importantly, however, an action 
that may adversely affect a PCE is not necessarily one that will result 
in the destruction or adverse modification of the proposed critical 
habitat.

Executive Order 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

[[Page 20211]]

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 finds the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above.

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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (a) This final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
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; AFDC 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 who 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 the take of this species both 
within and outside of the designated areas, we do not anticipate that 
this final 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 final rule does not have 
significant takings implications. A takings implication assessment is 
not required. The designation of critical habitat affects only Federal 
agency actions. Private lands do not exist within the designated 
critical habitat and therefore would not be affected by this action.

Federalism

    In accordance with E.O. 13132, this final rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of Commerce policies, we have 
requested information from, and will continue to coordinate this 
critical habitat designation with appropriate state resource agencies 
in Alaska. This 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 to the survival of Cook Inlet beluga whale 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 final rule does not unduly burden the judicial 
system and meets the requirements of sections 3(a) and 3(b)(2) of the 
Order. We are designating critical habitat in accordance with the 
provisions of the ESA. This final rule uses standard property 
descriptions and identifies the PCEs within the designated areas to 
assist the public in understanding the habitat needs of the Cook Inlet 
beluga whale.

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

    This final rule does not contain new or revised information 
collection for which the Office of Management and Budget (OMB) approval 
is required under the Paperwork Reduction Act. This rule will not 
impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. Notwithstanding 
any other provision of the law, no person is required to respond to, 
nor shall any person be subject to a penalty for failure to comply 
with, a collection of information subject to the requirements of the 
PRA, unless that collection of information displays a currently valid 
OMB Control Number.

National Environmental Policy Act

    NMFS has determined that an environmental analysis as provided for 
under the National Environmental Policy Act of 1969 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

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from 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. Public Law 108-199 (2004), codified in 
notes to 25 U.S.C. 450, requires all Federal agencies to consult with 
Alaska Native corporations on the

[[Page 20212]]

same basis as Indian tribes under this Executive Order.
    We have determined that designation of critical habitat for the 
Cook Inlet beluga whale in Cook Inlet, Alaska, would not have tribal 
implications, nor affect any tribal governments or Native corporations. 
Although the Cook Inlet beluga whale may be hunted by Alaska Natives 
for traditional use or subsistence purposes, none of the designated 
critical habitat areas occurs on tribal lands, affects tribal trust 
resources, or the exercise of tribal rights.

References Cited

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

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: April 1, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, we amend 50 CFR part 226 as 
follows:

PART 226--[AMENDED]

0
1. The authority citation of part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.


0
2. Add Sec.  226.220, to read as follows:


Sec.  226.220  Critical habitat for the Cook Inlet beluga whale 
(Delphinapterus leucas).

    Critical habitat is designated in Cook Inlet, Alaska, for the Cook 
Inlet beluga whale as described in paragraphs (a) and (b) of this 
section. The textual description of this critical habitat is the 
definitive source for determining the critical habitat boundaries. 
General location maps are provided for general guidance purposes only, 
and not as a definitive source for determining critical habitat 
boundaries. Critical habitat does not include manmade structures and 
the land on which they rest within the designated boundaries described 
in paragraphs (a)(1) and (2) of this section that were in existence as 
of May 11, 2011.
    (a) Critical Habitat Boundaries. Critical habitat includes two 
specific marine areas in Cook Inlet, Alaska. These areas are bounded on 
the upland by Mean High Water (MHW) datum, except for the lower reaches 
of four tributary rivers. Critical habitat shall not extend into the 
tidally-influenced channels of tributary waters of Cook Inlet, with the 
exceptions noted in the descriptions of each critical habitat area.
    (1) Area 1. All marine waters of Cook Inlet north of a line from 
the mouth of Threemile Creek (61[deg]08.5' N., 151[deg]04.4' W.) 
connecting to Point Possession (61[deg]02.1' N., 150[deg]24.3' W.), 
including waters of the Susitna River south of 61[deg]20.0' N., the 
Little Susitna River south of 61[deg]18.0' N., and the Chickaloon River 
north of 60[deg]53.0' N.
    (2) Area 2. All marine waters of Cook Inlet south of a line from 
the mouth of Threemile Creek (61[deg]08.5' N., 151[deg]04.4' W.) to 
Point Possession (61[deg]02.1' N., 150[deg]24.3' W.) and north of 
60[deg]15.0'N., including waters within 2 nautical miles seaward of MHW 
along the western shoreline of Cook Inlet between 60[deg]15.0' N. and 
the mouth of the Douglas River (59[deg]04.0' N., 153[deg]46.0' W.); all 
waters of Kachemak Bay east of 151[deg]40.0' W.; and waters of the 
Kenai River below the Warren Ames bridge at Kenai, Alaska.
    (b) A map of the designated critical habitat for Cook Inlet beluga 
whale follows (Figure 1).
BILLING CODE 3510-22-P

[[Page 20213]]

[GRAPHIC] [TIFF OMITTED] TR11AP11.000

BILLING CODE 3510-22-C

[[Page 20214]]

    (c) Primary constituent elements. The primary constituent elements 
essential to the conservation of the Cook Inlet beluga whale are:
    (1) Intertidal and subtidal waters of Cook Inlet with depths <30 
feet (MLLW) and within 5 miles of high and medium flow anadromous fish 
streams.
    (2) Primary prey species consisting of four species of Pacific 
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific 
cod, walleye pollock, saffron cod, and yellowfin sole.
    (3) Waters free of toxins or other agents of a type and amount 
harmful to Cook Inlet beluga whales.
    (4) Unrestricted passage within or between the critical habitat 
areas.
    (5) Waters with in-water noise below levels resulting in the 
abandonment of critical habitat areas by Cook Inlet beluga whales.
    (d) Sites owned or controlled by the Department of Defense, or of 
interest to national security. Critical habitat does not include the 
following areas owned by the Department of Defense or for which the 
Secretary has determined to exclude for reasons of national security:
    (1) All property and overlying waters of Joint Base Elmendorf-
Richardson between Mean Higher High Water and Mean High Water; and
    (2) All waters off the Port of Anchorage which are east of a line 
connecting Cairn Point (61[deg]15.4' N., 149[deg]52.8' W.) and Point 
MacKenzie (61[deg]14.3' N., 149[deg]59.2' W.) and north of a line 
connecting Point MacKenzie and the north bank of the mouth of Ship 
Creek (61[deg]13.6' N., 149[deg]53.8' W.).

[FR Doc. 2011-8361 Filed 4-8-11; 8:45 am]
BILLING CODE 3510-22-P