[Federal Register Volume 81, Number 17 (Wednesday, January 27, 2016)]
[Rules and Regulations]
[Pages 4838-4874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01633]
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Vol. 81
Wednesday,
No. 17
January 27, 2016
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Species; Critical Habitat for Endangered
North Atlantic Right Whale; Final Rule
Federal Register / Vol. 81 , No. 17 / Wednesday, January 27, 2016 /
Rules and Regulations
[[Page 4838]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 100217099-5999-03]
RIN 0648-AY54
Endangered and Threatened Species; Critical Habitat for
Endangered North Atlantic Right Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We (NMFS) are issuing this final rule to replace the critical
habitat for right whales in the North Atlantic with two new areas. The
areas being designated as critical habitat contain approximately 29,763
nm \2\ of marine habitat in the Gulf of Maine and Georges Bank region
(Unit 1) and off the Southeast U.S. coast (Unit 2). We have considered
positive and negative economic, national security, and other relevant
impacts of the critical habitat. We are not excluding any particular
area from the final critical habitat.
A Biological Source Document provides the basis for our
identification of the physical and biological features essential to the
conservation of the species that may require special management
considerations or protection. A report was also prepared pursuant to
section 4(b)(2) of the Endangered Species Act (ESA) in support of this
rule.
DATES: This rule is effective February 26, 2016.
ADDRESSES: The final rule as well as comments and information received,
and accompanying documents are available at
www.greateratlantic.fisheries.noaa.gov or by contacting Mark Minton,
NMFS, Greater Atlantic Regional Fisheries Office (GARFO) 55 Great
Republic Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Mark Minton, NMFS, Greater Atlantic
Regional Fisheries Office (GARFO), 978-282-8484, [email protected];
Barb Zoodsma, NMFS, Southeast Regional Office, 904-321-2806,
[email protected]; Lisa Manning, NMFS, Office of Protected
Resources, 301-427-8466, [email protected].
SUPPLEMENTARY INFORMATION:
The Biological Source Document (NMFS 2015a) and ESA Section 4(b)(2)
Report (NMFS 2015b) are available on our Web site at
www.greateratlantic.fisheries.noaa.gov, on the Federal eRulemaking Web
site at www.regulations.gov, or upon request (see ADDRESSES).
Background
In 1970, right whales, Eubalaena spp. were listed as endangered (35
FR 18319, December 2, 1970). At that time, we considered the northern
right whale species (Eubalaena glacialis) to consist of two
populations--one occurring in the North Atlantic Ocean and the other in
the North Pacific Ocean. In 1994, we designated critical habitat for
the northern right whale population in the North Atlantic Ocean (59 FR
28805, June 3, 1994). This critical habitat designation included
portions of Cape Cod Bay and Stellwagen Bank, the Great South Channel
(each off the coast of Massachusetts), and waters adjacent to the
coasts of Georgia and the east coast of Florida. These areas were
determined to provide critical feeding, nursery, and calving habitat
for the North Atlantic population of northern right whales. This
critical habitat was revised in 2006 to include two foraging areas in
the North Pacific Ocean--one in the Bering Sea and one in the Gulf of
Alaska (71 FR 38277, July 6, 2006).
In 2006, we published a comprehensive right whale status review,
which concluded that recent genetic data provided unequivocal support
to distinguish three right whale lineages as separate phylogenetic
species (Rosenbaum et al. 2000). They are: (1) The North Atlantic right
whale (Eubalaena glacialis) ranging in the North Atlantic Ocean, (2)
The North Pacific right whale (Eubalaena japonica), ranging in the
North Pacific Ocean, and (3) The southern right whale (Eubalaena
australis), historically ranging throughout the southern hemisphere's
oceans. Based on these findings, we published proposed and final
determinations listing right whales in the North Atlantic, North
Pacific, and southern hemisphere as separate endangered species under
the ESA (71 FR 77704, December 27, 2006; 73 FR 12024, March 6, 2008).
In April 2008, a final critical habitat designation was published for
the North Pacific right whale (73 FR 19000, April 8, 2008).
On October 1, 2009, we received a petition to revise the 1994
critical habitat designation for right whales in the North Atlantic. In
response, pursuant to section 4(b)(3)(D), we published a combined 90-
day finding and 12-month determination on October 6, 2010 (75 FR
61690), that the petition presented substantial scientific information
indicating that the requested revision may be warranted, and that we
intended to issue a proposed rule to revise critical habitat for the
North Atlantic right whale. As noted in that finding, the biological
basis and analysis for the 1994 critical habitat designation were based
on the North Atlantic population of right whales, so that designation
continued to apply to North Atlantic right whales after they were
listed as a separate species in 2008. On February 20, 2015 (80 FR
9314), we proposed replacing the 1994 critical habitat designation for
the population of right whales in the North Atlantic Ocean with two new
areas of critical habitat for the North Atlantic right whale.
In the proposed rule we requested public comment through April 21,
2015. For a complete description of our proposed action, including the
natural history of the North Atlantic right whale, please see the
proposed rule (80 FR 9314, February 20, 2015).
We are making one change from the proposed rule to the areas
designated as right whale critical habitat. The one change is based on
public comments received and further review of the best available
scientific data. We are extending Unit 2 further to the south to
include an area that is a portion of the 1994-designated critical
habitat, increasing Unit 2 by approximately 341 nm \2\. Unit 2 now
includes nearshore and offshore waters of the southeastern U.S.,
extending from Cape Fear, North Carolina south to approximately 27 nm
below Cape Canaveral, Florida.
Summary of Comments and Responses
We received 261 letters and general comments on the proposed rule
and supporting analyses via Regulations.gov, letter, fax, and email. In
addition, 20,826 form letters were also received via letter and email.
We received 20,325 form letters from an environmental advocacy group
stating their general support for the proposed designation of critical
habitat and urging NMFS to include a migratory corridor in the final
designation. We received an additional 500 form letters from a second
environmental advocacy group as well as 210 (additional) form letters
that contained slight variations to the main form letter. We also
received two petitions from environmental advocacy groups with
approximately 17,420 and 2,069 signatures, respectively stating general
support for designating critical habitat and urging the inclusion of a
migratory corridor.
Many comments urged imposing restrictions on Navy activities as
well as oil and gas exploration and
[[Page 4839]]
development, expanding existing fishing gear restrictions, and
expanding seasonal management areas (SMAs) to reduce the risk to right
whales due to ship strikes and vessel speeds as part of this
rulemaking; however, these issues are not within the scope of this
critical habitat rulemaking.
Unit 1 Boundaries
Comment 1: One commenter stated that in proposing to designate Unit
1, we mistakenly proposed to designate a large area in which right
whales congregate, rather than identifying the ``specific areas'' on
which essential foraging features ``are found.'' As a result, the
proposed Unit 1 designation is overbroad and should be more narrowly
tailored, consistent with the ESA. The comment states that the proposed
boundaries of Unit 1 are not based upon the established presence of the
essential features.
Response: We disagree with this comment. The proposed boundaries of
Unit 1 encompass the combination of physical and biological features of
foraging habitat that are essential to right whale conservation and
that may require special management considerations or protection. We
did not simply propose to designate the area depicted as Unit 1 based
on where ``right whales congregate'' as the comment suggests. As
discussed in detail in the Biological Source Document, the seasonal
distributions and general patterns of abundance of C. finmarchicus
within the Gulf of Maine and Cape Cod Bay have been documented. The
geographic scales and depths at which copepods are sampled only rarely
match the fine-scale at which right whales forage (Mayo and Marx 1990,
Baumgartner and Mate 2003). Basin-scale zooplankton monitoring schemes
have proved ineffective in detecting the high concentrations usually
present in the vicinity of actively feeding whales. Furthermore, using
direct copepod sampling efforts to identify where dense aggregations
occur would be unproductive because sufficient data are not available
to establish a specific threshold density of C. finmarchicus that
triggers feeding. For these reasons, the specific area on which are
found dense aggregations of late stage C. finmarchicus cannot be
defined by relying on data from such efforts to sample copepod
aggregations directly throughout the vast Gulf of Maine and Georges
Bank region. Instead, we used an alternative ``whale centric'' approach
for detecting dense prey patches. The location of actively foraging
right whales provides a proxy for the distribution of dense copepod
patches (Marx and Mayo 1990, Wishner et al. 1995, Pace and Merrick
2008). We used the protocol for determining the whale density and
residency indicative of feeding behavior developed by Clapham and Pace
(2001) for the Dynamic Area Management (DAM) program to determine where
the dense patches of C. finmarchicus are found. The boundaries of Unit
1 are not solely based on the presence of the dense C. finmarchicus
patches, as determined by the foraging right whale proxy, but also by
the presence of the physical oceanographic features and the biological
feature of diapausing copepods identified in this rulemaking (see
responses to comment 36 and 49).
Comment 2: The State of Maine Department of Marine Resources stated
that it disagreed with the use of the current exemption line identified
in the Atlantic Large Whale Take Reduction Plan (ALWTRP, 50 CFR 229.32)
as the inshore boundary of the proposed critical habitat. It suggested
that NMFS should use the 100 meter isobath contour as the near shore
boundary to better align with the biological and physical features
identified as supporting the aggregation and distribution of copepods.
This commenter stated that the proposed boundary (the exemption line)
does not have any bearing on the biological and physical oceanographic
features that have been identified as drivers for copepod production,
distribution, aggregation, and retention in the Gulf of Maine, nor is
there a biological justification for using the exemption line as the
inshore boundary given the location of right whale sightings. The
commenter noted that the agency analyzed 35 years of DAM-qualified
sightings but identified only one aggregation of right whales near the
coast of Maine (Pace and Merrick 2008). They noted that all other
identified aggregations occurred beyond the 100 meter contour, which is
well seaward of the ALWTRP's exemption line. The commenter also cited a
study completed by Runge et al. (2010) who found that densities of late
stage copepods were statistically significantly higher at offshore
stations (>100 m) than inshore area and that copepods were not
aggregating in water depths less than 100 meters. The commenter also
stated that this finding was consistent with the statement in Runge et
al. (2010) that the Maine Coastal Current centers at the 100 m contour.
Response: After review of this comment and the study cited, we
conclude that the use of the ALWTRP Exemption line remains appropriate
as the inshore boundary of the area on which the essential foraging
features of right whale critical habitat are found.
The study provided by the commenter in support of the requested
change was somewhat limited both spatially and temporally. The study of
copepod densities cited was based on the sampling that was conducted
over a three-year period with sampling occurring only during the months
of July and August. Also, there is uncertainty as to what exact density
of copepods triggers feeding, with the density seeming to vary both
temporally and spatially.
Asaro (2012) depicts an overlay of the DAMs and Dynamic Management
Areas (DMAs) in the western Gulf of Maine. The inshore extent of the
plots of these events in the western Gulf of Maine closely approximates
the Maine exemption line. While there are several instances of buffered
DAMs and DMAs extending into Maine inshore waters, the sightings
themselves were not located in these waters (Asaro 2012). This analysis
does provide some evidence of right whale foraging activities in areas
seaward and adjacent to the Maine exemption line. As we tried to
explain in the proposed rule and its supporting documents and clarify
now, the essential biological feature of dense patches of copepods is
present in areas seaward and adjacent to the Maine exemption line.
Therefore, the Maine exemption line does have bearing on the presence
of this biological feature and is a reasonable approximation of the
shoreward boundary of critical habitat in Unit 1.
In addition, the decision to retain the Maine Exemption line, as
proposed, for the inshore boundary of right whale critical habitat is
based on the presence of one of the physical oceanographic features
identified as being essential to the conservation of the species--
specifically, the oceanographic conditions and structures of the Gulf
of Maine and Georges Bank region that combine to distribute and
aggregate copepods for right whale foraging, namely prevailing currents
and circulation patterns. The Maine Coastal Current (MCC) is one of the
major oceanographic features in the western Gulf of Maine that is
essential to the conservation of North Atlantic right whales because of
its role in aggregating and distributing copepods. The MCC has two
major components, the Eastern Maine Coastal Current (EMCC) off Maine's
northeast coastline and the Western Maine Coastal Current (WMCC) off
the coastlines of southern Maine, New Hampshire, and Massachusetts.
Manning et al. (2009) report that the
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MMC is centered from approximately the 71 m isobath inshore to the 117
m isobath seaward. Churchill et al. (2005) report that the EMMC is 20
km wide, with its shoreward extent at about 10 km from shore. Manning
et al. (2009) report that on average, the core of the WMCC is centered
at the depth of 67 m. As these studies document, the center of both of
the two major components of the MMC are shoreward of the 100 m isobath
proposed by the commenter as the inshore boundary of critical habitat.
Although the MMC coastal current is highly variable, the ALWTRP
exemption line generally follows the 50 meter isobath and is also the
approximate inshore boundary of the MMC. Further, as the depths
reported represent the core of the two MMC currents; both the EMCC and
the WMCC are present further inshore. The MMC is very dynamic with
interannual variability due to such factors as wind and water
temperature.
Based on our review of the proposed use of the 100 m isobaths as
the inshore boundary of critical habitat instead of the Maine exemption
line, we conclude that the Maine exemption line corresponds more
closely to the inshore extent of the essential physical oceanographic
feature that is the MCC.
Comment 3: Several fishing industry comments supported the
designation of additional right whale critical habitat that is
essential to the conservation and recovery of the North Atlantic right
whale. However, they opposed the designation area as proposed. The
commenters agreed with Maine Department of Marine Resources' (DMR)
review of the scientific literature on the physical oceanographic
conditions and structures of the Gulf of Maine as well as foraging
aggregations. They strongly supported DMR's recommendation that the
shoreward boundary of the proposed Gulf of Maine critical habitat (Unit
1) follow the 100 m contour and not the Maine exemption line defined in
the Atlantic Large Whale Take Reduction Plan. The commenters stated
that Maine's exemption line has no direct bearing on the four physical
and biological features identified by us as being essential to defining
this critical habitat. They stated that in the absence of this
adjustment, they would oppose the change in the Gulf of Maine current
critical habitat designation.
Response: See response to Comment 2.
Comment 4: One commenter requested the expansion of critical
habitat in the Northeast to include all waters in the Gulf of Maine and
Georges Bank from the Hague Line to the shoreline based on the best
available science indicating that the area contains physical and
biological features essential for the survival of the species. The
commenter sought to extend the critical habitat boundary to the
shoreline in Maine beyond the Maine Exemption line. The commenter
questioned the agency's determination that the essential physical and
biological foraging features are not found inshore of the Maine
exemption line. The commenter cited several factors in support of the
expansion of the critical habitat boundary to the shoreline. The
factors cited by the commenter include: (1) Limited systematic
sightings effort inside the ALWTRP Maine exemption line as well as a
recent analysis by Industrial Economics, Inc., evaluating the co-
occurrence of whales and vertical lines used in commercial fisheries in
the northeast shows large areas in inshore Maine, indicating that there
was no survey effort in large segments of the inshore area; (2) the
NMFS program of dynamic management; currently for ship traffic, but
formerly for fishing gear as well, has resulted in the imposition of
dynamic management measures in inshore Maine waters; and (3) the
results of a satellite telemetry study that was done targeting right
whales in the northeast. The commenter stated that in that study at
least 2 of the 14 tagged right whales (approximately 14%) showed tracks
that appear to be within the areas of coastal Maine that were not
included in the proposed Unit 1 critical habitat.
Response: As discussed in our response to Comment 2, we used
foraging right whales as a proxy for identifying areas where the
essential feature of dense aggregations of late-stage copepods are
found. As part of that process, we analyzed 35 years of DAM-qualified
sightings and identified only one aggregation of foraging right whales
near the coast of Maine inshore of the Maine exemption line (see
response to Comment 15 for additional discussion). This analysis
provides strong support for our determination that late stage copepods
in quantities sufficient to trigger right whale foraging are not
present inshore of the Maine exemption line. While the commenter is
correct that some areas have been surveyed more extensively than others
within the Gulf of Maine and Georges Bank region, we are required to
use the best available data. With regard to the results of the
telemetry studies cited by the commenter (Baumgartner and Mate 2005),
the telemetry data were included in the 35 years of DAM-qualified
sightings data we analyzed. The two right whales referenced by the
commenter did not trigger a DAM qualified sighting (aggregations of
three or more feeding right whales in a specified area), indicating the
whales were not foraging and were spatially and/or temporally separate
from each other while in the inshore waters. As such, these data do not
indicate that one or more of the essential physical and biological
features were present.
Comment 5: One commenter stated that the regular imposition of
multiple dynamic management measures that extended into the inshore
waters of Maine in a number of instances casts doubt on the conclusion
that whales are unlikely to use the inshore area with any regularity.
Response: We disagree. As stated in our response to Comment 2,
Asaro (2012) depicts an overlay of the DAMs and Dynamic Management
Areas (DMAs) in the western Gulf of Maine. The inshore extent of the
plots of these events in the western Gulf of Maine closely approximates
the Maine exemption line. While there are several instances of buffered
DAM and DMAs areas extending into Maine inshore waters, the sightings
themselves were not located in these waters, just the buffer zone(s)
associated with the DAM(s) and DMA(s) (Asaro 2012). This analysis does
provide some evidence of right whale foraging activities in areas
seaward and adjacent to the Maine exemption line and thus, provides
support for its use as the shoreward boundary of critical habitat in
Unit 1.
Comment 6: A commenter stated that regardless of right whale
sightings, the inshore waters of Maine contribute to the circulation
patterns of the Gulf of Maine, which support and concentrate C.
finmarchicus--the primary forage of North Atlantic right whales. The
commenter stated that, according to NMFS, ``freshwater inflow from
numerous rivers (e.g., the St. John, Penobscot, Kennebec, Androscoggin,
and Merrimac Rivers) within the Gulf of Maine watershed contributes to
the density driven circulation pattern.'' The commenter asserts that
therefore the inshore waters of Maine contain the physical and
biological features necessary to maintain food resources for right
whales, and that area is therefore essential to the survival of the
species. The commenter stated that because the currents in the Gulf of
Maine are strongly influenced by density gradients between the high-
salinity slope water entering from the Atlantic and fresher waters,
which form in the Gulf of Maine or enter from the Scotian Shelf, the
freshwater inflow from these and other rivers within the Gulf of Maine
[[Page 4841]]
watershed that contributes to the density driven circulation pattern
must be adequately protected. The commenter further stated that the
bays and inlets into which these rivers flow may require special
management to ensure that this flow is not impeded by development such
as hydroelectric or hydrokinetic projects designed to provide
alternative energy to the region.
Response: The physical features in question here are the physical
oceanographic conditions and structures that combine to distribute and
aggregate copepods in sufficient densities to support right whale
foraging and energetic requirements. We agree that freshwater inflow
from numerous rivers (including the St. John, Penobscot, Kennebec,
Androscoggin, and Merrimac Rivers) are one of several external
environmental processes within the Gulf of Maine watershed that may
influence the density driven circulation pattern. However, these
influences are not physical oceanographic features. Rather they simply
have the potential to influence the identified oceanographic features.
The physical oceanographic features of the Gulf of Maine Georges Bank
region are influenced by a variety of conditions including several
outside of the Gulf of Maine. For example, the North Atlantic
Oscillation (NAO) (a climatic phenomenon in the North Atlantic Ocean of
fluctuations in the difference of atmospheric pressure at sea-level
between the Icelandic low and the Azores high) influences the relative
location within the Atlantic Ocean of warm Gulf Stream waters that
approach the Gulf of Maine from the south, and the colder Labrador
Current waters that flow toward the area from the north. Small-scale
changes in the North Atlantic can produce large-scale changes in the
Gulf of Maine. There are large-scale coastal circulation patterns that
influence the Gulf of Maine that originate from the Labrador Sea. The
circulation and water properties within the Gulf of Maine therefore may
depend as much on influences originating over 1,000 km away as on local
processes (Thompson 2010).
In addition, there are other local environmental processes that
influence the physical oceanographic conditions inside the Gulf of
Maine including such factors as wind, tidal mixing, the periodic cooler
and more fresh inflow from the Scotian Shelf, winter cooling, summer
heating, the deep warmer and more saline inflow of the slope water, and
river runoff including from those identified by the commenter (Xue et
al. 2000, Thompson 2010).
Further, the information cited by the commenter regarding
freshwater input into the Gulf of Maine is taken out of context and
relates to the ``may require special management considerations or
protection'' analysis we conducted to determine if the areas containing
the physical oceanographic conditions and structures met the definition
of critical habitat. Consequently, we did not identify the external
freshwater input associated with river inflow from the various sources,
including rivers within the Gulf of Maine watershed, as part of the
physical feature. We have updated the Biological Source Document
accordingly to clarify this issue.
Unit 2 Boundaries
Comment 7: A number of comments were received concerning the
location of the southern boundary of the proposed revised calving area
critical habitat. Comments requested to (1) move the proposed revised
boundary southward (commenter did not specify how far south), (2) keep
the southern boundary for the proposed revised critical habitat the
same as current critical habitat designated in 1994, and (3) move the
proposed revised boundary south of the current critical habitat
designated in 1994. One commenter was concerned that the proposed Unit
2 would exclude Port Canaveral and noted one mother-calf pair was
observed in the Canaveral ship channel while cruise ships were
departing the port. Commenters supported a more southerly boundary
because: (1) Sightings of mother/calf pairs (available at http://www.nefsc.noaa.gov/psb/surveys/) reported since Good's analysis
indicate that waters south of proposed Unit 2 are used consistently--
including by mother-calf pairs, (2) the agency previously recognized
the area as critical to calving right whales, (3) calves are observed
in the area so the areas should be protected even though they are not
part of the area selected by the habitat models, (4) Good's model
(available at: http://dukespace.lib.duke.edu/dspace/handle/10161/588)
predicts calving habitat in the area for at least part of the calving
season, and (5) right whales utilize the area at above-average
densities.
Response: We agree with the commenters and have modified the
southern boundary of Unit 2. We originally considered an alternative
retaining the southern portion of the 1994 designated calving area
critical habitat, discussed in the consideration of alternatives for
the Initial Regulatory Flexibility Analysis (see Appendix B in the
draft ESA Section 4(b)(2) Report). We noted that retaining the southern
boundary as designated in 1994 would have captured suitable habitat
predicted by Good's (2008) combined model for one month. However, in
that analysis we noted that Garrison's (2007) habitat model did not
predict suitable calving habitat that far south, yet it captured 91% of
observed mother-calf pairs.
In response to public comments, we investigated observations of
mother-calf pairs collected subsequent to the data used in the cited
models and re-examined Garrison (2007), Good (2008), and Keller et al.
(2006). We reviewed the North Atlantic Right Whale Consortium Database
(2015) (available at http://www.narwc.org/index.php?mc=8&p=28) for
mother-calf pair sightings south of the proposed Unit 2 and from the
2001-2002 calving season to present. We used this timeframe because
Garrison (2007) and Keller et al. (2006) used Consortium data through
March 2001. We found 39 mother-calf pair sightings at an annual
sighting rate of just under three mother-calf pairs (highest annual
number of pair sightings was 10). Of these, January and February
sightings were most prevalent and totaled 12 and 19, respectively.
While the number of sightings varies among years, sightings of mother-
calf pairs within that area are predictable and consistent, as noted by
some of the commenters. Because occupied critical habitat must be based
on the presence of features essential to the species' conservation that
may require special management considerations or protection, we re-
evaluated the predictive habitat model results in terms of temporal
distribution of the essential depth, temperature, and sea surface
roughness features. First, we reviewed the models and temporal scales
of model outputs. Garrison's (2007) and Keller et al.'s (2006) models
at the 4-month (season-level) temporal resolution (as illustrated in
Garrison's Figure 19 and Keller et al.'s Figure 7), which were used for
the proposed designation, do not predict presence of all the essential
features south of the proposed boundary. This is because the 4-month
scale obscured the areas containing the essential features for a
smaller timeframe (i.e., one month). Garrison's (2007) model output at
a finer temporal resolution (monthly scale) does predict presence of
the essential features south of the proposed revised critical habitat
for at least a portion of the calving season (in January and February)
(see Garrison's Figure 21 and 22). Good's (2008) model outputs are
similar. The presence of all the essential features are not predicted
to simultaneously co-occur south of the proposed unit boundary for the
coarser temporal scale of 3 or 4 months, but the
[[Page 4842]]
essential features are expected to simultaneously co-occur over a
contiguous area in the finer, 1-month temporal scale. Good's model also
predicts presence of the essential features south of the proposed
revised critical habitat in January and February, and to a lesser
degree, in December. Thus, this southern area contains the essential
features at times when the majority of the right whale mother-calf
pairs have been observed there in the years since the models were
published. Mother/calf pairs in the area were most often seen swimming
(n = 23) but other behaviors were observed (diving-7, breaching-1, and
slapping the water with flippers or tails-2) (Right Whale Consortium
2015). The high number of observations of swimming mother/calf pairs in
this area is consistent with our analysis, discussed in the Biological
Source Document for the Critical Habitat Designation, that mother-calf
pairs likely loop many miles up and down the coast in the calving area
to strengthen calves' swimming abilities. Apparent nursing was also
observed in the area (n = 4), and mother-calf pairs were also seen in
physical contact with each other (n = 9).
Therefore, we believe the available data show consistent and
predictable presence of right whale mother-calf pairs in this southern
area, during the months the habitat models predict presence of all the
essential features. The features here may require special management
considerations or protections for the same reasons as the rest of Unit
2: Because of possible negative impacts from activities and events of
offshore energy development, large-scale offshore aquaculture
operations, and global climate change. These activities and their
potential broad-scale impacts on the essential features are discussed
in detail in the Biological Source Document (NMFS 2015). For these
reasons, we agree with the commenters that the southern boundary of the
calving area critical habitat should be moved southward from where we
proposed. Next, we identified new coordinates for including this area
in Unit 2. Based on the above information and Good's (2008) one-month
model, the Southeast Calving Area (Unit 2) boundaries were developed by
drawing straight lines around the modelled one-month area extending
from Daytona Beach to just south of Melbourne, Florida, trying to use
the fewest number of waypoints as possible, and rounding waypoints to
the nearest minute to the greatest extent possible. This extension
represents an approximate 4% increase in the area of Unit 2 from the
proposed rule and retains critical habitat in Atlantic waters adjacent
to Port Canaveral.
To evaluate and consider the economic impacts of including this
area in the designation, we followed the same methodology described in
the proposed rule (80 FR 9314, February 20, 2015) and in the Section
4(b)(2) Report. Similar to the proposed Unit 2 area, we identified
three categories of activities that have occurred and are likely to
recur in the future and have the potential to affect the essential
features in the expanded Unit 2 area: (1) U.S. Army Corps of Engineers
(USACE) maintenance dredging or permitting of dredge and disposal
activities under the Clean Water Act; (2) USACE permitting of marine
construction, including shoreline restoration and artificial reef
placement under the Rivers and Harbors Act and/or Clean Water Act; and
(3) Bureau of Ocean Energy and Management permitting of sand and gravel
extraction under the Outer Continental Shelf Lands Act.
Additionally, we identified one category of activities that has not
occurred in the expanded Unit 2 area in the past but, based on
available information, may occur in the future. The projected activity
is offshore renewable/alternative energy development. If this activity
occurs, it may adversely affect the essential features. In the proposed
rule (80 FR 9314, February 20, 2015), we described our justification
for determining relative levels of impacts (i.e., incremental, or co-
extensive) for all of these activities. We repeated that process, to
consider the impacts of adding the southern extension to the
designation. Based on our analysis of past consultation history, we
project that over the next ten years, there will be 22 consultations,
or about two consultations per year, in this area which may affect the
features of critical habitat. Eleven of these projects would involve
dredging and/or disposal by the U.S. Army Corps of Engineers, and 11
projects would involve permitting of marine construction or artificial
reef placement by the U.S. Army Corps of Engineers. Thus, adding the
southern extension would involve no additional federal agencies or
actions that are different from those that will be conducted in the
rest of Unit 2 and were evaluated in the Draft Section 4(b)(2) report.
As discussed in the Section 4(b)(2) Report, these activities are only
expected to involve incremental administrative costs of consultation as
a result of this designation. Annual administrative costs for these
projected consultations are $10,160 (at $5,080 per consultation--see
the Economics Impact section in the proposed rule and the Section
4(b)(2) Report for background information on the costs for conducting
consultations).
Relative to projected, new activities, offshore renewable/
alternative energy may occur in the southern extension area, given its
proximity to shore and available information about where and how these
activities might be implemented (http://www.boem.gov/Florida/). Because
there are no records in NMFS's consultation history for offshore
renewable or alternative energy projects occurring within Unit 2, we
are unable to (a) predict how many section 7 consultations may result
from projects of this type over the next 10 years or (b) calculate the
projected incremental costs resulting from this action. We are not
aware of any other future new federal activity that may be implemented
in the southern extension area.
We also contacted Department of Defense agencies that are active in
the area to determine if they anticipated any impacts from critical
habitat designation on their activities within the additional southern
area that would pose national security concerns. Their responses were
similar to those submitted for the proposed Unit 2 area in that they
did not anticipate their activities would destroy or adversely modify
the essential features of calving habitat. Therefore, other than the
administrative costs of consultation for about 2 consultations annually
over the next 2 years, there will be no economic or national security
impacts of this addition. Yet, as the sightings data demonstrate, there
appear to be measurable conservation benefits to right whale mother-
calf pairs that use this particular area every year.
Finally, we evaluated whether the data suggest the Unit 2
boundaries should be expanded on a similar basis elsewhere. In other
words, whether there is consistent mother-calf pair usage of other
areas predicted by the habitat suitability models to contain the
essential features in one month of the calving season evaluated in the
models. Good's (2008) model generally predicts calving habitat in one
month (two months in some portions of the area) north of the proposed
Unit 2 boundaries, from Cape Fear to approximately Cape Hatteras, North
Carolina. Nine mother/calf pair sightings occurred in the approximately
2,386 nm\2\ area from the 2001/2002 calving season to present (Right
Whale Consortium, 2015) and at an annual sighting rate of just under
one pair (highest number of pair sightings is four in one season). In
other words, the area
[[Page 4843]]
off North Carolina is approximately 600% larger than the area off
Florida, yet it has 75% fewer sightings of mother/calf pairs of right
whales. Mother-calf pair sightings occurred in three different calving
seasons. Two mother calf pairs observed off North Carolina in April
2010 were likely migrating northward as both were observed earlier in
the calving season off Florida and Georgia (Right Whale Consortium,
2015a). Since available data do not demonstrate that mother-calf pair
usage of the area off North Carolina and north of the proposed Unit 2
boundary is as consistent and predictable as off Florida south of
proposed Unit 2 during the peak calving season (North Atlantic Right
Whale Consortium sighting database), we are not expanding the Unit 2
boundaries to the north at this time.
Consequently, at this time we are extending Unit 2 further to the
south to include a portion of the 1994-designated critical habitat. We
find that this is supported because: (a) Garrison (2007) and Good
(2008) confirm the presence of the essential features of critical
habitat in the area for at least a portion of the right whale calving
season; (b) we confirmed mother-calf pairs were sighted in the area
most frequently when the essential features are expected to be in that
area, and (c) multiple mother-calf pairs consistently and predictably
occur there every year.
Comment 8: One commenter recommended extending calving area
critical habitat eastward off Florida to include the location of an
observed March 20, 2010, right whale birthing event.
Response: We are not extending the calving area critical habitat
boundary farther to the east off South Carolina or Florida. The March
20, 2010, right whale calving event was at least 15 nm east of
predicted suitable right whale calving habitat--at any temporal
resolution (see response to Comment 23).
Comment 9: One commenter suggested extending calving critical
habitat into the Gulf of Mexico because the area was occupied by right
whales at the time the species was listed and because of recent calving
events there.
Response: NMFS is not aware of known incidents of right whale
calves being born in the Gulf of Mexico. Right whales have been
observed only rarely in the Gulf of Mexico. The few published sightings
(Moore and Clark 1963; Schmidly and Melcher 1974; Ward-Geiger et al.
2011) represent either right whale presence that is abnormal (i.e.
outliers) or a more extensive historical range beyond the current sole
known calving and wintering ground in the waters of the southeastern
United States (Waring et al. 2009). We also concur with other right
whale researchers that the Gulf Stream serves as a thermal barrier
preventing right whales from routinely using the Gulf of Mexico (Keller
et al. 2006, Good 2008, Keller et al. 2012). Therefore, we are not
extending the critical habitat to include the Gulf of Mexico.
Comment 10: One commenter stated that Unit 2 should match the area
in Action 1 Alternative 9a of Regulatory Amendment 16 (Reg-16) under
consideration by the South Atlantic Fishery Management Council for the
Snapper-Grouper Fishery Management Plan (S-G FMP).
Response: We do not agree with matching the boundaries as specified
by the commenter. The area created for S-G FMP Reg-16 meets the needs
of a fishery management plan development process but is not consistent
with the ESA-specific requirements for designation of critical habitat.
Based on the statutory definition of critical habitat we applied a
step-wise approach to identifying occupied areas that may be designated
as critical habitat for North Atlantic right whales. Briefly, the steps
we followed included: (1) Identifying the right whale range, (2)
identifying areas within that range where physical or biological
features essential to right whale conservation are found, and (3)
determining if those features may require special management
considerations or protections. The boundaries of Alternative 9a do not
contain the full area identified by us as containing physical features
essential to the conservation of the North Atlantic right whale,
particularly off South and North Carolina.
Comment 11: A number of comments supported the designation of Unit
2 as critical habitat. Comments included (a) the calving area critical
habitat should be expanded to incorporate the entire area proposed as
Unit 2, (b) strong support for the area proposed for critical habitat,
and (c) the Bureau of Ocean Energy Management (BOEM) is supportive of
the proposal to replace critical habitat for the North Atlantic right
whale.
Response: NMFS appreciates the support.
Comment 12: One commenter suggested considering additional
information to better support the calving area critical habitat
designation including:
(a) Identifying the relative value of various nursery areas (e.g.
track the location where an individual was born to see if differential
growth or survival occurs) as has been done in fishery science;
(b) using opportunistic sightings;
(c) changing distribution of calves due to climate change--a
northward shift in cow-calf distribution may mean a greater need to
protect additional northern habitat, while expanding distribution to
north and south could be due to increased abundance of whales;
(d) using a depth contour that captures 90% of right whale cow-calf
pairs.
Response: As mentioned in the Federal Register Notice of Proposed
Rulemaking and Biological Source Document, the ESA definition of
critical habitat provides NMFS with a step-wise approach to identifying
areas that may be designated as critical habitat for North Atlantic
right whales. Briefly, the steps we follow include: (1) Identifying the
right whale range, (2) identifying areas within that range where
physical or biological features essential to right whale conservation
are found, and (3) determining if those features may require special
management considerations or protection. Calving is essential to the
species' conservation and the physical features that are essential to
successful calving include: (1) Calm sea surface conditions associated
with Force 4 or less on the Beaufort Scale, (2) sea surface
temperatures from 7 [deg]C through 17 [deg]C, and (3) water depths of 6
to 28 meters where these features simultaneously co-occur over
contiguous areas of at least 231 km 2 during the months of November
through April. The distribution of optimal values of these features
changes throughout a calving season, and between calving seasons.
Further, the needs cow-calf pairs' have for each of the individual
parameters change over the course of rearing, and the pairs move across
broad swaths of the calving area to seek out optimal conditions and to
condition the calf. Therefore, we believe that all of Unit 2 is highly
valuable to calving right whales.
Opportunistic sightings lack associated information on search
effort so are not included in efforts to statistically analyze and
predict right whale habitat. Thus, Garrison (2007), Good (2008), and
Keller et al. (2012) did not use opportunistic sightings in their work.
However, we reviewed opportunistic sightings when considering the
importance of calving habitat south of proposed Unit 2. Opportunistic
sightings were used to assess the consistency of calving right whale
use of that area.
[[Page 4844]]
We also considered climate change effects on calving right whale
(including calf) distribution using the same step-wise approach to
identify critical habitat. We determined that increased temperatures
and hurricane activity due to global climate change may alter sea
surface conditions within the specific area such that the area capable
of providing dynamic, optimal combinations of the essential features is
reduced and the ability of the specific area to support the key
conservation objective of facilitating successful calving is reduced.
We determined that the essential features of the calving habitat may
require special management considerations or protection due to future
climate change impacts. Existing predictions of climate change impacts
do not provide fine enough information to determine how the
distribution of essential features in the SAB will change in the
future, and thus setting boundaries based on future climate change
impacts would be speculative at this time.
Comment 13: One commenter submitted a number of comments on the
underlying models used to identify the Unit 2 proposed critical
habitat. Comments included: (1) Concern about averaging and aggregating
data, (2) the treatment of zero-inflated data, (3) suggestions for
other parameters (water density, underwater currents, substrate, and
salinity) to include, (4) the nonrandom nature of survey design used to
collect underlying data, (5) concern over model fit, (6) the use of
limited information, (7) use Easting (relative east-west location) and
Northing (relative north-south location) or the interaction parameter
of the two variables, and (8) models should be updated and viewed with
caution. Another commenter suggested that we utilize the Duke
University Marine Geospatial Ecology Lab (MGEL) and Atlantic Marine
Assessment Program for Protected Species (AMAPPS) models of marine
mammal habitat utilization when making decisions on North Atlantic
right whale (NARW) Critical Habitat boundaries.
Response: The first comment is focused on methods used in
generating models described in publications we used to inform critical
habitat, and changing those analyses is beyond the scope of the actions
proposed in this rule. In general, we use information from a wide
variety of sources. We are required to gather, review, and evaluate
available information to ensure it is reliable, credible, and
represents the best scientific and commercial data available. We
reviewed Garrison (2008), Keller et al. (2012), and Good (2008) and
found these to be the best scientific and commercial data available at
the time the proposed rule was published in the Federal Register. As
far as updating models: We did not, nor does the ESA require us, to
develop new models as part of the rulemaking. Moreover, based on our
review of whale sightings dated after publication of the models (see
response to comment 7), the models are performing well in predicting
the overall boundaries of the calving area. However, we will continue
to monitor ongoing studies and publications to determine if new
information will enhance our understanding of right whale habitat, and
the ESA allows us to revise critical habitat when appropriate.
We are aware that the Duke Marine Geospatial Ecology Lab and AMAPPs
are modeling densities and abundance of right whales; however, those
products were not available at the time this final rule was developed.
Comment 14: One commenter noted that Good et al. (2008) stated that
bottom type is an important habitat component that was not included in
either modeling approach. This commenter also reported that the bottom
type had been mapped for a significant portion of the area where right
whales occur in the Southeast U.S. Atlantic (A screenshot of the SAFMC
Habitat and Ecosystem Viewer was included with the comment, which we
assume was taken from http://ocean.floridamarine.org/SA_Fisheries/).
The commenter went on to state that including this available
information into the modeling approach might improve our understanding
of habitat selection by right whales.
Response: We agree that additional information into the modeling
approach might improve our understanding of habitat selection by right
whales. However, the information in Good (2008), also said this about
substrate type: ``Substrate was not considered because of lack of
suitable data for the broader Atlantic Ocean and because available
substrate data for the [South Atlantic Bight] showed little
variation.'' Therefore, it was concluded that the inclusion of the
substrate information as provided in Good (2008) was not warranted at
this time. In addition, see our response to comment 13 above.
Comment 15: One commenter stated that Good's (2008) box-plots
showed that the majority of mother-calf pairs in the southeastern U.S.
were observed from 6 through 20 m depth and 11[deg] through 21 [deg]C
sea surface temperature (SST) in calm waters. However, the proposed
right whale critical habitat (Unit 2) includes waters with SSTs ranging
from 8[deg] through 17[deg] C and depths of 6 through 28 m, which are
beyond the range where right whales are typically observed.
Response: We assume the commenter is referring to Good's (2008)
box-plots of habitat conditions illustrated in Figure 3. This figure
compares habitat conditions associated with mother-calf sightings
against the survey search area. The data and, by extension, the figure
illustrate that mother-calf pairs occurred in shallower and cooler
waters compared to available conditions throughout the study area. Good
(2008) used Mantel tests to evaluate the association of mother-calf
pairs with habitat conditions. Although she found SST and depth were
significant predictors, Good (2008) didn't specify what proportion of
observed or predicted sightings, corrected for effort, would occur with
the various SST and depth ranges. For that information, we looked to
Garrison (2007).
Garrison (2007) generated a figure that illustrates percentile of
predicted sightings per unit of effort by water depth and temperature
(see Garrison's Figure 16). For reasons specified in the Notice of
Proposed Rulemaking and Biological Source Document, we concluded
Garrison's (2007) 75th percentile and Good's (2008) habitat selected in
3 and 4 months were the most appropriate bases for determining the best
distribution of essential features of right whale calving habitat.
Garrison's (2007) Figure 16 illustrate that SST ranging from 7-17
[deg]C and depth ranging from 6-28 m are habitat features associated
with the 75th percentile of predicted sightings per unit of effort.
Thus, the physical features essential to the conservation of the North
Atlantic right whale, which provide calving area functions in Unit 2
include sea surface temperatures of 7 [deg]C to 17 [deg]C, and water
depths of 6 to 28 meters.
Comment 16: One commenter stated that the proposed critical habitat
is strongly based on areas from Keller et al. (2012) that indicate the
probability of right whale sightings based on SST alone (see Figure 8b
in Keller et al. (2012)). Depth should have been included in the model
similar to cell mapping in Good et al. (2008).
Response: We acknowledge that Unit 2 closely resembles Figure 8b
from Keller et al. (2012). As indicated in the Source Document, in
order to identify the area that contains essential features of calving
habitat, we used the predictive models of Garrison (2007), Good (2008),
and Keller et al. (2012). All of these authors included water depth and
sea surface temperature in their models because they found depth and
sea surface temperature were significant
[[Page 4845]]
variables in predicting the spatial distribution of calving right
whales. Keller et al.'s (2012) Figure 8b illustrates where their model,
which does include bathymetry, predicts right whales to be distributed
based on SST in December through March (as opposed to June through
September). This temporal delineation rightfully constrains the model
to predicting calving habitat during the known right whale core calving
season of December through March.
Comment 17: One commenter noted that Good et al. (2008) limited
their dataset to presence only to reduce the influence of the zero
observations. This commenter was concerned that eliminating the zeros
could give a false increase in the preferred habitat and, resultantly,
in protecting calving habitats that are not truly critical habitat for
right whales.
Response: We concur with Good et al. (2008) in that this is a
suitable approach for a very small population. As that author states:
``if habitat conditions associated with whale absence are incorporated
into a model as `unsuitable', the outcome may be biased away from
suitable habitat due to limited species dispersal.'' This would be
particularly true with a small, remnant population like right whales.
Therefore, we do not agree that eliminating zeros from the data will
result in protecting calving habitats that are not truly critical
habitat for right whales.
Comment 18: The justification for choosing the 75[th] percentile of
the predicted whale sightings stated that 91% of the observed whale
sightings were included in the selected model. This transforms the goal
of the modeling exercise from an exercise to select the best habitat
based on environmental parameters to a selection of a model to best
cover the data. Therefore, the selection of the model to describe the
critical habitat may not give a realistic representation of the
environmental parameter's influence on the distribution of the species.
Response: Garrison (2007), Keller et al. (2012), and Good (2008)
found that sea surface temperature and water depth were significant
predictors of calving right whale spatial distribution. Good (2008)
also found surface roughness to be a significant predictor. The extent
to which calving right whales select the range and combination of these
features is best represented as a spatial gradient between the most
suitable and least suitable environments. There is no discrete spatial
boundary for the habitat (e.g. shore line, watershed boundary, etc.).
Therefore, NMFS defined a geographic area that contained a significant
amount of the habitat features used by a large proportion of calving
right whales (i.e. ``best'' plus ``good'' habitat) over the entirety of
the calving season. When selecting boundaries of critical habitat, we
used the model results, but we also considered the behaviors,
physiologies, and growth and development of cow-calf pairs during the
calving season, including the significant amount of movement of pairs
over the period. We also considered the fact that the distribution of
temperature and surface roughness values changes over the course of
calving seasons, and between calving seasons. The purpose of a critical
habitat designation is to facilitate compliance with section 7 of the
ESA, year in and year out, to ensure that actions of federal agencies
do not destroy or adversely modify critical habitat. This objective is
accomplished by evaluating whale presence and behavior, and status of
essential features, in specific project areas at the time they are
proposed to be implemented. The critical habitat features and
boundaries being designated will facilitate compliance with ESA section
7.
Comment 19: One commenter inquired about the portion of the
population that uses the proposed critical habitats during the winter
months. The commenter also asked at what point does the critical
habitat no longer become vital on a monthly basis. This information
would be useful for planning purposes.
Response: It is not entirely clear, but we believe this commenter
is inquiring about either the demographic segments or how many right
whales are in the calving area critical habitat on a monthly basis. We
know all demographic segments (adult females and males, juveniles, and
calves) may be found within the calving area critical habitat in the
winter months. As far as the proportion of the total right whale
population that uses the calving area critical habitat then, we do not
know. We know that as many as 243 different whales have been seen in
the Southeast U.S. during one winter (P. Hamilton pers. Comm., April
11, 2014). We interpret the second question to be asking when are
potential impacts to right whales in this area no longer of concern.
From Good (2008), we know that at least 85% of all observed right whale
mother-calf pair sightings from January 2000 through March 2005 are
located within the modified calving area critical habitat (Good 2008).
Generally, by the end of March, mother-calf pairs have begun moving
northward out of the area.
Designation of a Migratory Corridor
A number of comments focused on the agency's determination that we
are unable to identify physical or biological feature associated with
right whale migration. These ranged from comments in favor of the
agency designating a migratory corridor and comments in support of the
agency's determination that identification of features associated with
migration is not possible at this time. This determination was based on
our review of the best available information.
Many of the comments received advocating the designation of a
migratory corridor focused on the presence of right whales but provide
little if any additional information on the characteristics of physical
and biological features that enable the agency to identify and define
critical habitat.
Comment 20: A number of commenters stated that the agency must
designate a migratory corridor for the North Atlantic right whale in
the mid-Atlantic, asserting there is no other route between the
southern calving and northern feeding grounds. They stated that the
agency undervalued the data in the available studies and other data the
agency has relied upon in other rulemakings regarding protections for
North Atlantic right whales. The commenters stated that the agency's
summary in the proposed rule relied primarily on a single study of the
broad movements of two tagged animals to conclude that not all right
whales migrate within 30 miles of shore, the distance referenced in the
petition to revise critical habitat. The commenters stated that the
study in question (Schick et al. 2009) showed that while not all right
whales are found within 30 miles of the coast, the tagging data from
Schick et al. (2009) show that the tagged whales were primarily found
within 30 miles of the coast of the mid-Atlantic and only appeared to
travel significantly farther from shore off of the Delaware Bay area
toward Block Island Sound. The commenters also stated that a recently
published report of the tagging of two right whales in 2014 showed a
similar nearshore travel pattern, with all movements on the narrow
shelf to the Chesapeake Bay and only farther offshore northward of that
area where the shelf is broader.
Response: Given that large-scale migratory movements between
feeding habitat in the northeast and calving habitat in the southeast
are a necessary component in the life-history of the
[[Page 4846]]
North Atlantic right whale, we agree with the commenters that
facilitating successful migration by protecting the species' migratory
area is a key conservation objective that could be supported by
designation of critical habitat for the species. As described in the
Biological Source Document, we explored the possibility of using known
occurrences of North Atlantic right whales in the mid-Atlantic to
identify the specific areas used for migration and essential physical
and biological features in those areas. Data and information considered
by NMFS included sightings data used while developing the rule to
implement ship speed restrictions to reduce the threat of ship
collisions to North Atlantic right whales (73 FR 60173, October 10,
2008); the studies by, Knowlton et al. (2002), and Firestone et al.
(2008); and telemetry data and model results used in Schick et al.
(2009).
The authors of these three publications expressed whale
distribution in terms of distance from shore. For example, of the
sightings used in support of the ship speed rule, NMFS found that
approximately 83 percent of all observed right whale sightings occurred
within 20 nm (37 km) of the coast, and approximately 90 percent of all
right whale sightings occurred within 30 nm (55.6 km) of the coast (73
FR 60173). Schick et al. (2009) found that, based on telemetry data for
two tagged whales, peak habitat suitability occurred in the range of 17
to 108 nm from shore for one tagged whale (a mother-calf pair), and for
the other, peak suitability occurred in the range of 8 to 40 nm from
shore for the other. Regardless of the distance from shore in which
right whales have been documented along the mid-Atlantic, we found no
evidence to support a conclusion that ``distance from shore'' is a
physical or biological habitat feature essential to the conservation of
right whales. In other words, we found no basis to suggest that right
whales key in on distance from shore, or somehow use distance from
shore, to facilitate migration.
The commenter also cited the recently published report of two
tagged right whales from 2014. We are aware of this three-year ongoing
North Atlantic right whale telemetry project that tagged three right
whales in 2014, and we did consider the preliminary results of this
work. Estimated tracks of two of the whales were well publicized and
made available on www.alaskasealife.org. However, we are also aware
that there are varying levels of error and uncertainty associated with
those preliminary telemetry tracks, and the data have not been
processed completely to account for those errors (thus, the Web site
correctly refers to the tracks as ``estimated tracks''). Further,
similar to the discussion of the Schick et al. (2009) study above,
these preliminary data do not provide us with any indication of
physical or biological features essential to the conservation of right
whales and whether any such features warranted any special management
considerations. Therefore, we determined that those data are
preliminary and do not represent the best available information present
at the time of this final rule. For the reasons stated above, we
conclude it is not possible to designate migratory critical habitat at
this time.
Comment 21: Several commenters stated that they supported our
conclusion that there is no basis for the designation of a migratory
corridor as critical habitat because there are no reliable data by
which the physical and biological features of migratory critical
habitat can be determined.
Response: We agree with this comment.
Comment 22: One commenter stated that right whales seasonally
residing in Cape Cod waters are known to travel along the mid-Atlantic
coastal waters as part of their migration between calving grounds
offshore of the southeastern United States and feeding areas in Cape
Cod Bay and the Gulf of Maine. Both the Biological Source Document and
the proposed rule reference Schick et al. (2009) in support of the
statement that ``The space used by right whales along their migration
remains almost entirely unknown.'' The commenter suggested that, while
these data and analyses may not be judged sufficient to designate a
critical habitat along a migratory corridor, the compilation of
sightings data from 1974-2002 prepared as part of the analyses for the
Ship Strike Reduction Program (http://www.greateratlantic.fisheries.noaa.gov/shipstrike/doc/Historical%20sightings.htm), and the papers of Knowlton et al. (2002),
Firestone et al. (2008), Asaro (2012), Laist et al. (2014), LaBrecque
et al. (2015), and Andrews (2015) highlight areas of migratory
importance and should be considered for designation.
Response: The sightings data referenced compiled from 1974-2002
prepared as part of the analyses for the Ship Strike Reduction Program
were considered. For the purposes of the ship strike rule analysis, the
focus was to determine the risk of ship strikes of right whales in the
vicinity of ports. As discussed, the best available data are limited in
scope, and do not provide a complete description of migratory habitat
(i.e., survey data were biased near shore, and not all right whales
migrated within 30 nm of shore). Since the vast majority of the survey
effort was focused close to shore, the fact that the majority of
migrating whales were observed close to shore is not surprising and
does not indicate that distance from shore and shallow habitat contain
or comprise essential features for migration. The one completed study
that removes the associated biases related to survey effort and
location was based on two telemetry tagged whales and the movements of
those whales were much broader and variable (Schick et al. 2009).
Comment 23: One commenter stated that the rationale for not
designating a migratory corridor is not convincing. The commenter
stated that female right whales are seen both in nearshore areas within
30 nm of shore and also much farther offshore, which suggests that the
migratory corridor may be wide, not that it is non-existent or
impossible to delineate in some form. The commenter stated that
adequate information exists, along with viable models, to provide the
necessary data to develop a migratory corridor that would provide the
minimum necessary requirement to enhance survivability of the right
whale populations under consideration (Firestone et al. 2008, LaBreque
2015, Pendoley et al. 2014, Schick et al. 2009, Whitt et al. 2013).
Response: See response to Comment 20.
Comment 24: One commenter stated that ensuring that mothers and
calves are not disturbed as they transit the Mid-Atlantic on their way
to the southern calving grounds is a special management consideration
associated with migration. The comment stated that this is essential to
the conservation of the species and that this area and the essential
life activities that occur in it may be impacted by the activities we
have identified for Unit 2, as well as by oil and gas activities,
vessel traffic, and other federal actions.
Response: We agree that migrating right whales, including mothers
and calves, need to be protected. The potential impacts identified in
the comment, however, relate to potential impacts to individual whales,
which would be addressed through a jeopardy analysis as required under
section 7 of the ESA. The impacts identified by the commenter do not
relate to physical and biological features associated with possible
critical habitat used by migrating whales. Designated critical habitat
receives protection pursuant to section 7 of the ESA through a separate
[[Page 4847]]
provision and process in which potential adverse modification or
destruction of the habitat must be evaluated. The protection of
physical and biological features of critical habitat is distinct from
the protection the animals themselves receive under section 7 of the
ESA.
Comment 25: One commenter stated that the importance of migratory
corridors as a Biologically Important Area (BIA) is discussed in the
Aquatic Mammals Journal Special Issue on BIAs for Cetaceans within U.S.
waters. The four categories of BIAs identified in the journal articles
are: Reproductive areas, feeding areas, migratory corridors, and areas
in which small and resident populations are concentrated. NOAA's
Cetsound Web site (cetsound.noaa.gov) includes a CetMap module that can
display Migration BIAs for numerous cetacean species, including the
North Atlantic right whale. Migration BIAs cover an extensive area of
the Atlantic coast from Maine to Florida. The commenter recognized that
the CetMap migratory corridor was not intended as a regulatory
boundary, but the absence of a migratory corridor of any size within
the proposed rule means that one of the major BIA categories important
for the survival of the North Atlantic right whale has been omitted.
Response: Schick et al. (2009) provide the only unbiased data and
analysis on the actual extent of movements of right whales in the Mid-
Atlantic. Although we acknowledge that some portion of the right whale
population is sighted transiting through the waters of the Mid-
Atlantic, designating migratory critical habitat requires more than
just a general understanding of where some whales may be seen
transiting (see Response 20 above). The paper identified by the
commenter, LaBrecque et al. (2015), which discusses a migratory
corridor for right whales relies on the same studies that we analyzed
in our efforts to identify essential physical and biological features
associated with migratory behavior in right whales. Although the
authors identify a ``migratory BIA'' for right whales, this paper, like
the others evaluated through this rulemaking, do not provide us with a
basis for identifying physical or biological features used by right
whales to facilitate their migration.
Comment 26: One commenter stated that the features of migratory
habitat are: Shallow, minimal slope, nearshore. Another commenter
stated that the primary physical features for a migratory habitat would
appear to be the existence of a contiguous volume of ocean water,
within an appropriate range of temperatures which provides a path
through which North Atlantic right whales migrate from their foraging
areas to their calving areas and return.
Response: The non-specific terms ``shallow,'' ``minimal slope'' and
``nearshore'' simply describe the general bathymetry of nearshore
shallow continental shelf benthic habitat. The comment did not include
any data or specific information that would allow us to define the
appropriate or essential values of depth or slope within right whale
migratory habitat, nor are we aware of any such data. The suggestion
that right whale migratory habitat appears to be the existence of a
contiguous volume of ocean water, within an appropriate range of
temperatures that provides a path through which North Atlantic right
whales migrate from their foraging areas to their calving areas and
return is also non-specific. Again, the comment did not include any
additional data or information that would allow us to define an
appropriate volume of water or range of water temperatures that are
essential for the conservation of right whales. What the range of
temperatures that may be essential for right whale migration is unknown
but is a potential focus of future research and analysis.
Comment 27: One commenter stated that many of the same habitat
features identified as essential for calving and nursing whales south
of Cape Fear (i.e., relatively calm, shallow waters between 7-17
[deg]C) are present in the coastal waters between southern North
Carolina and southern Massachusetts. The commenter states that although
empirical data to support a conclusion are lacking, it seems reasonable
to assume that calves and their mothers would continue to prefer waters
with those characteristics as long as possible along their migratory
route. This is consistent with observations that mother-calf pairs do
not follow a straight-line route between the calving and feeding
grounds, which would take them far off shore, but rather follow the
coast line to at least the Chesapeake Bay where those same conditions
also occur.
Response: The commenter is correct in noting that there are no
empirical data to support the suggestion that right whale mother-calf
pairs' migratory movements are linked to the temperature and sea states
similar to essential calving features. Also, as discussed previously,
data from two tagged female right whales, one with a calf, demonstrate
that one migrating right whale (the mother calf pair) moved with a
range of peak habitat suitability of 17 to 108 nm from shore, and for
the other whale, peak suitability occurred in the range of 8 to 40 nm
from shore (Schick et al. 2009). This contradicts the statement by the
commenter that transiting right whales ``follow the coastline.'' While
two recently tagged animals provide additional information regarding
right whale movements, Schick et al. (2009) still provide the best
available data related to movements of migrating whales. The comment
itself does suggest to us potential future research into whether
temperature and sea state are possibly being actively selected by
transiting right whales.
Comment 28: One commenter stated that the agency used the same
studies the commenter considered in analysis of whether it is possible
to identify essential migratory features in prior rulemakings to
protect North Atlantic right whales. The commenter states that the
agency inexplicably dismissed them for purposes of this rulemaking, by
claiming that they are effort-biased (i.e., most effort is within 30
miles of shore).
Response: The commenter may be referring to the ship strike rule
analysis (73 FR 60173, October 10, 2008). For the purposes of the ship
strike rule analysis, the nearshore area was of greatest interest for
determining risk in the vicinity of ports. The data were used to
determine the risk to the species in order to mitigate the threat of
ship strikes of right whales in these areas, not to identify a
migratory corridor or physical and biological features essential to the
conservation of the species which may require special management
considerations or protection. The difficultly in using the data for
identification of critical habitat is also discussed above.
Comment 29: One commenter stated that with regard to identifying
features essential to conservation of the species along its migratory
route, Knowlton et al. (2002), which is cited in the Biological Source
Document found that 93% of all sightings are within 25 fathoms of water
and 80.5% of the sightings are within 15 fathoms of water indicating
reliable physical parameters that are likely features for the mid-
Atlantic migratory corridor.
Response: In terms of water depth, Knowlton et al. (2002) found
that a majority of the sightings were within 5 to 10 fathoms of water,
with the second highest number of sightings in 0 to 5 fathoms of water.
The analysis indicated that 93 percent of sightings are in water depths
of 25 fathoms or less, and 80.5 percent are in water depths of 15
fathoms or less. As noted above, in so far as the sightings were
positively biased towards shore, it would also be expected that the
water depth analysis would be positively biased towards shallow water.
[[Page 4848]]
Comment 30: One commenter stated that we should take the same
approach to assessing the inclusion of migratory habitat in the
designation as we did for calving and feeding habitat. Not all calving
and feeding occurs within the areas identified in the proposed
designation. However, the best available scientific information
indicates that most whales use those areas for calving and feeding and
supports inclusion of those areas in the critical habitat designation.
Response 30: As described in the proposed rule and Biological
Source Document, we identified essential calving and foraging features
that meet the definition of critical habitat. The areas we are
designating as right whale critical habitat are the areas in which are
found the essential forging and calving features. As discussed in the
Biological Source Document, the areas where right whales feed and calve
are well established and thus we were able to analyze what specific
physical and biological features are found in these areas that meet the
definition of critical habitat as required by the ESA. Currently, based
on the best available information, we do not know the actual route or
routes that right whales typically use to transit between other
habitats, nor do we have data to identify the essential physical and
biological features of a migratory route. Some individuals advocate
that because right whales are sighted in nearshore waters, those areas
should be designated as critical habitat. This approach, however, fails
to acknowledge the limitations of virtually all of the available
sightings data and overlook the data provided by Schick et al. (2009),
which show broad scale offshore movements of migrating right whales far
beyond nearshore waters. Additional research is needed to help identify
what areas are typically used by right whales for migration, so that we
can begin to try to identify what physical and biological features are
associated with such an area and whether or not, these as yet
unidentified features may require special management and as such
qualify for designation as critical habitat under the ESA.
Comment 31: One commenter stated that the rationale for excluding
all areas along the migratory corridor from the proposed designation
fails to recognize the importance of this corridor to the conservation
of the species and the fact that most whales migrate through a fairly
well-defined area. The commenter stated that although the data
documenting right whale migratory patterns are less extensive than
those for other activities in other areas, available data from whale
sightings and the increasing number of tagging and passive acoustic
studies strongly indicate that waters within 30 nm of shore are an
important component of the migratory corridor likely used by most
pregnant and nursing females and calves, as well as by other whales for
overwintering (Kraus et al. 1986, Kenny et al. 2001, Knowlton et al.
2002, Schick et al. 2009, Van Parjis et al. 2009, and Morano et al.
2012). The commenter stated that most right whales migrate between the
calving and feeding grounds within a fairly well defined corridor, that
we should expand the proposed critical habitat to include all waters
that provide migratory and overwintering habitat for North Atlantic
right whales within 30 nm of the coast between the proposed critical
habitats areas in the northeastern and southeastern United States.
Another commenter stated that there is little doubt that virtually all
females and calves that use the calving grounds in winter pass through
waters over the continental shelf between North Carolina and the known
feeding grounds. The comment stated that the conservation of the
species will be undermined if whales have no other way to transit
between the two areas.
Response: See response to Comment 20.
Comment 32: One commenter stated that historical whaling records
provide support for designating waters in the Mid-Atlantic region as
migratory and overwintering areas in the critical habitat designation.
The commenter stated that whaling records indicate that nearshore
waters between Cape Lookout, North Carolina, and Nantucket,
Massachusetts, at least historically, were important habitat for right
whales from November through April. The commenter cited Reeves et al.
(2007) who, based on a review of historical whaling records along the
U.S. East Coast, estimated that at least 5,500 right whales were killed
by whalers in the western North Atlantic between 1630 and 1950, with
perhaps 80 to 90 percent killed during a 50-year period between 1680
and 1730. The commenter stated that most of that whaling occurred
between the months of November and May and was conducted by shore-based
whalers operating between North Carolina and Nantucket.
Response: Historical whaling records indicate the historic presence
of North Atlantic right whales and are another source of non-systematic
data that were collected for the purpose of documenting the harvest of
whales for commercial purposes. These records merely provide broad
geographic information concerning general locations of right whales
during harvesting operations. The harvesting records do not provide
information that can be used to identify the physical or biological
features that promote the conservation of the species and which may
require special management protections.
Identification of Additional Essential Features
Comment 33: One commenter stated that the proposed rule does not
specifically identify features that may require special management
considerations or protections, although these are discussed in the
preamble.
Response: A detailed description of the physical and biological
features we identified as essential to the conservation of the species
and that may require special management considerations or protections
are provided in the proposed rule as well as in the Biological Source
Document and Section 4(b)(2) Report.
Comment 34: One commenter recommended that we expand the list of
essential physical and biological features for North Atlantic right
whales in all critical habitat areas to include the acoustic qualities
that allow right whales to communicate efficiently and carry out other
essential biological functions.
Response: The acoustic qualities or features of the habitat that
are essential to the conservation of North Atlantic right whales are
currently unknown. Clark et al. (2009) noted that specific questions
and uncertainty exists regarding large whale communications and the
potential for communication loss to lead to impacts to the conservation
of right whales. These researchers concluded that ``At present, we can
only speculate because we do not know enough details about when and how
whales use their calls to communicate relative to the behavioral and
ecological contexts, and how reductions in these capabilities translate
to biological cost.'' In addition Clark et al. (2009), with regard to
bioacoustic effects of ocean noise states ``. . . the greatest
uncertainties in our abilities to estimate the impacts of communication
masking come from our ignorance of spatial and temporal scales over
which animals engage in their bioacoustic activities. Very little is
known about the ranges over which the large whales actually communicate
. . .'' Therefore, an expansion of the list of essential physical and
biological features for North Atlantic right whales to include the
acoustic qualities that allow them to
[[Page 4849]]
communicate efficiently and carry out other essential biological
functions is not warranted at this time. As new information becomes
available, we will take appropriate action if warranted.
Comment 35: One commenter stated that we should identify water
quality capable of sustaining robust copepod blooms without risk of
passing contaminant concentrations through the food web to right whales
as an essential habitat feature. The commenter stated that successful
foraging also requires clean ocean waters that support healthy copepod
populations on which right whales depend. Several activities discussed
in the preamble to the proposed rule were identified as potentially
requiring special management attention because of their effects on
water quality (e.g., sewage outfalls and offshore oil and gas
development). Water quality, however, was not identified as an
essential habitat feature.
Response: Although we did not include water quality as an essential
feature of the critical habitat, we did consider impacts associated
with water quality. The available information on the impacts of
contaminants directly on copepod abundance and reproduction is lacking.
Copepods are widely distributed over a vast expanse in the feeding
area. While contaminants could impact particular parts of this vast
oceanic expanse, it is unlikely that contaminant concentrations would
be of such magnitude as to negatively affect copepod blooms throughout
the entire feeding area. Further, many of the contaminants such as DDT
and PCBs have been banned in the United States for many years, and as
such, contaminant inputs have decreased in many areas. Additionally,
within our Section 4(b)(2) Report we identified two categories of
activities, one under the Environmental Protection Agency's (EPA's)
jurisdiction and one under the U.S. Coast Guard's (USCG's) authority,
that may require modifications specifically to avoid adverse
modification of the essential features. These activities are Water
Quality/National Pollutant Discharge Elimination System (NPDES) and oil
spill response. Effluent may affect the foraging feature by influencing
the phytoplankton community structure. Similarly, dispersants used in
oil spill response may have direct impact to the foraging features.
Both of these activities would be subject to consultation requirements
to ensure they do not destroy or adversely modify the essential
features of the critical habitat.
With respect to the issue of contamination and passing contaminants
throughout the food web to right whales, there is currently no evidence
for significant contaminant-related problems in baleen whales (O'Shea
and Brownell 1994, Weisbrod et al. 2000). Weisbrod et al. (2000) found
that the PCB and pesticide concentrations in the right whale biopsies
were relatively low and did not provide evidence that the endangered
right whales bioaccumulate hazardous concentrations of organochlorines.
We do not have evidence that the endangered whales bioaccumulate
hazardous concentrations of organochlorines (Weisbrod et al. 2000).
Although more research is needed, the existing data on mysticetes
support the view that the lower trophic levels at which these animals
feed should result in lower levels of contaminant accumulation than
would be expected in many odontocetes, which typically show
concentrations that differ from those of baleen whales by an order of
magnitude (O'Shea and Brownell 1994, Weisbrod et al. 2000). However,
the manner in which pollutants negatively impact animals is complex and
difficult to study, particularly in taxa for which many of the key
variables and pathways are unknown (such as large whales) (Aguilar
1987; O'Shea and Brownell 1994).
Comment 36: The Marine Mammal Commission recommended that we should
expand the list of essential physical and biological features for
designated feeding areas to include (1) water quality able to sustain
and maintain blooms of copepods, particularly Calanus finmarchicus, and
(2) waters free of materials that could impede or interfere with the
filter-feeding behavior of North Atlantic right whales.
Response: Regarding the recommendation to include water quality as
a feature, please see response to Comment 35. We do not agree with the
commenter's recommendation that we should identify ``waters free of
materials that could impede or interfere with the filter-feeding
behavior of North Atlantic right whales'' as an essential foraging
feature, and that this proposed feature may need special management
attention because placement of fishing or other lines in the water
column could interfere with right whale filter feeding or become caught
in right whale baleen. Although we agree that addressing direct impacts
to right whales as they forage is important to the overall recovery and
conservation of the species, this rule addresses impacts to the
physical and biological features of the foraging habitat, not direct
impacts to the species itself.
As provided throughout this rule, the features of right whale
foraging habitat that are essential to the conservation of the North
Atlantic right whale are a combination of the following biological and
physical oceanographic features: (1) The physical oceanographic
conditions and structures of the Gulf of Maine and Georges Bank region
that combine to distribute and aggregate C. finmarchicus for right
whale foraging, namely prevailing currents and circulation patterns,
bathymetric features (basins, banks, and channels), oceanic fronts,
density gradients, and temperature regimes; (2) Low flow velocities in
Jordan, Wilkinson, and Georges Basins that allow diapausing C.
finmarchicus to aggregate passively below the convective layer so that
the copepods are retained in the basins; (3) Late stage C. finmarchicus
in dense aggregations in the Gulf of Maine and Georges Bank region; and
(4) Diapausing C. finmarchicus in aggregations in the Gulf of Maine and
Georges Bank region. Facilitating successful feeding by protecting
these physical and biological features that characterize feeding
habitat is a key conservation objective that is supported by
designation of critical habitat for the species.
With respect to activities that may impede or interfere with
filter-feeding behavior of right whales, such as placement of fishing
or other lines in the water column that could interfere with right
whale filter feeding or become caught in right whale baleen and thus
pose direct impacts to the species itself, these impacts are not
effects to the physical and biological features of the foraging
habitat. These direct impacts to the species itself are already
provided protection through Sections 7 and 9 of the ESA and through the
MMPA.
Inclusion of Area to the South of Cape Cod/Nantucket in the Critical
Habitat Designation
Comment 37: One commenter recommended that NOAA support research
focused upon two areas likely critical to the NARW population: (1) The
entire migratory corridor between the Southeast U.S. and the Gulf of
Maine, and (2) a potentially important feeding, residency, and nursery
area south of Cape Cod, Martha's Vineyard, and Nantucket.
Response: We agree and will continue to support research focused on
identifying those physical and biological features that promote
conservation for North Atlantic right whales.
Comment 38: Several commenters stated that we have inappropriately
[[Page 4850]]
excluded the waters south of Cape Cod, specifically the waters south of
Nantucket and Martha's Vineyard from the Unit 1 designation. While the
agency concluded that right whale sightings in Block Island Sound have
not been consistent annually, sightings of right whales off Nantucket
and Martha's Vineyard have been consistent and may be increasing. The
commenter referenced statements found in the Biological Source Document
as evidence that Nantucket Shoals is a physical feature of right whale
foraging habitat and therefore stated that we should include areas
south of Cape Cod in the Unit 1 critical habitat designation.
Response: We acknowledge that sightings occur to the south and east
of Unit 1 as depicted in Figure 9 in the Biological Source Document,
including Nantucket Sound and Block Island Sound. There is no basis
that we are aware of for the statement that sightings ``may be
increasing.'' Typically, whales were sighted in these areas in one
year, but were not seen again in these areas on an annual basis.
Therefore, a pattern of repeated annual observations is not evident in
these areas. As a result, we have concluded that the combination of the
physical and biological foraging features; including the dense
aggregations of late stage C. finmarchicus are not present in these
areas as found in the Gulf of Maine/Georges Bank region. We have
concluded that most likely, these are sightings of transiting whales
that may feed opportunistically while migrating to the Gulf of Maine/
Georges Bank region (Richard Merrick, Pers. Comm., May 2010). As
discussed in the Source Document, researchers have documented that
right whales forage on the copepods other than Calanus finmarchicus,
including Pseudocalanus and Centropages typicus as well as barnacle
larvae (Mayo and Marx 1990, Baumgartner et al. 2007). These researchers
note, that right whales quickly ceased foraging on these zooplankton
assemblages indicating that the prey was likely not suitable to meet
their energetic requirements (Baumgartner et al. 2007). In addition,
recent survey effort in the areas south of Cape Cod off of Nantucket,
Martha's Vineyard and in Rhode Island Sound have observed socially
active groups (reproductive behavior) of right whales, which provides
some additional insight into the behaviors of right whales present in
these areas (Kraus et al. 2014).
We have considered additional sightings data available (see Kraus
et al. 2014, Khan, C. et al. 2010, 2011, 2012, 2014, Gatzke J. et al.
2013). Their inclusion does not fundamentally change the outcome of the
analysis provided by Pace and Merrick 2008 in light of the 35 years of
sightings data already used in that analysis (Richard Merrick, Pers.
Comm., May 2010). However, we will continue to monitor sightings in
these areas and will take appropriate action if warranted.
Therefore, we have concluded that the combination of physical and
biological foraging features, including the dense aggregations of late
stage C. finmarchicus, are not present in these areas and thus do not
include these areas south of the Gulf of Maine-Georges Bank region in
the boundaries of right whale critical habitat. We will continue to
monitor sightings in these areas and will take appropriate action if
warranted.
Comment 39: One commenter stated that we have acknowledged the
importance of the areas surrounding Nantucket Sound for spring
aggregations of copepods. The agency has stated in a separate resource
document that the early spring abundances of C. finmarchicus increase
throughout the ecosystem, but are highest in the shallower portions of
the Gulf of Maine, on Georges Bank and on Nantucket Shoals. Abundance
continues to increase into late spring, with high abundance throughout
the Gulf of Maine, Georges Bank, the Southern New England shelf and the
outer Middle Atlantic Bight shelf. The comment referenced the following
NMFS document: Seasonal and Spatial Trends' in Ecology of the Northeast
Continental Shelf: Zooplankton. Retrieved from: www.nefsc.noaa.gov/ecosys/ecology/Zooplankton/.
Response: The Web site cited by the commenter describes our current
understanding of ecosystem properties of the Northeast U.S. Continental
Shelf Large Marine Ecosystem (NES LME). As described, the commenter is
correct that C. finmarchicus is found seasonally throughout the Gulf of
Maine, Georges Bank, the Southern New England shelf and the outer
Middle Atlantic Bight shelf including Nantucket Shoals. As noted, given
the diversity of zooplankton (>100 species), it is difficult to
generalize seasonal and interannual trends; the dynamics of individual
species can be very different. As discussed in the Biological Source
Document, right whales must locate and exploit extremely dense patches
of zooplankton to feed efficiently (Mayo and Marx 1990).
Bi et al. (2014) studied the abundance of the subarctic copepod,
Calanus finmarchicus, and temperate, shelf copepod, Centropages
typicus, over the Northeast U.S. continental shelf (NEUS) from 1977-
2010. These researchers studied variation in long term trends and
seasonal patterns for the two copepod species for four sub-regions: The
Gulf of Maine (GOM), Georges Bank (GB), Southern New England (SNE), and
Mid-Atlantic Bight (MAB). Results suggested that there was significant
difference in long term variation between northern region (GOM and GB),
and the MAB for both species. Calanus finmarchicus had the highest
abundance in the Gulf of Maine and Georges Bank followed in Southern
New England region. Relative to the Gulf of Maine and Georges Bank, the
long term trend of C. finmarchicus showed more variation in the SNE but
less variation than the Mid-Atlantic Bight (MAB). The long term
abundance of C. finmarchicus showed more fluctuation in the Mid-
Atlantic Bight than the Gulf of Maine Georges Banks region (Bi et al.
2014).
As described above and in the Biological Source Document we have
used foraging right whales as a proxy for the presence of essential
foraging features because basin-scale zooplankton monitoring schemes
have proved ineffective in detecting the high concentrations usually
present in the vicinity of actively feeding whales. Furthermore,
zooplankton such as C. finmarchicus are found throughout the ocean, but
frequently at concentrations far too low to meet right whales'
energetic requirements (Baumgartner et al. 2007). As discussed, using
direct copepod sampling efforts to identify where dense aggregations
occur is also confounded by the fact that sufficient data are not
available to establish a specific threshold density of C. finmarchicus
that triggers feeding.
While C. finmarchicus is present in the waters south of Cape Cod
including Nantucket Sound and Martha's Vineyard, we have concluded that
those areas do not have the combination essential physical and
biological features, including late stage C. finmarchicus in dense
aggregations that are evident in the GoM-Georges Bank region.
4(b)(2) Report
Comment 40: One commenter stated that our Section 4(b)(2) Report
does not present a clear assessment of the costs and benefits of the
proposed designation. In addition, the commenter stated that the report
underestimates the total section 7 administrative costs that will be
incurred because of the proposed critical habitat designation. The
commenter stated the 4(b)(2) Report's estimated section 7 consultation
administrative costs are
[[Page 4851]]
extraordinarily low and are inconsistent with other recent section
4(b)(2) cost assessments performed by NMFS. The commenter cited two
recent administrative cost estimates they believe provide more accurate
administrative cost estimates including the recent 4(b)(2) impact
analysis prepared for the Northwest Atlantic Ocean Distinct Population
Segment of the Loggerhead Sea Turtle critical habitat designation.
The commenter stated that we improperly concluded that we are
unable to estimate the critical habitat-related section 7
administrative costs associated with oil and gas exploration and
development in Unit 1 on the basis that there is not a consultation
history on this activity. The commenter stated that section 7
consultations for actions involving offshore oil and gas-related
activities that have been completed in other areas, such as the Gulf of
Mexico and Alaska, as well as for certain areas in the Atlantic Ocean,
could be used as the basis for estimating the costs of future oil and
gas-related consultations in Unit 1.
Response: We disagree. As discussed in the 4(b)(2) Report, we
concluded that no categories of future federal actions would require
consultation solely due to the critical habitat; all future activities
will involve consultation on impacts both to the species and to
critical habitat. The administrative costs we estimated as being
associated with the critical habitat consultations represent the
incremental costs of conducting critical habitat analyses in
consultations on federal actions that ``may affect'' the essential
features of the critical habitat. According to our regulations, we are
required to analyze the incremental (i.e., the portion of) costs
attributable to the critical habitat. Therefore, consistent with our
previous critical habitat designations, any administrative costs
associated with evaluating impacts to the species are not included in
the administrative costs we estimated for the proposed North Atlantic
right whale critical habitat.
Based on our review of past consultations and on comments received,
we have identified six categories of activities that may affect the
critical habitat: National Pollution Discharge Elimination System
(NPDES) permitting, oil spill response, dredging and spoil disposal,
marine construction permitting, construction and operation of offshore
liquefied natural gas (LNG) facilities, and construction and operation
of energy facilities and sand extraction on the Outer Continental
Shelf. Of these six categories, we identified two categories of
activities, one under the Environmental Protection Agency's (EPA's)
jurisdiction and one under the U.S. Coast Guard's (USCG's) authority,
that may require unique modifications specifically to avoid adverse
modification of the essential features, in addition to modifications
that may be required to address impacts to the whales. We have also
identified four new (i.e., not previously consulted on) categories of
federal activities that may occur in the future and, if they do occur,
may affect the essential features. These potential activities are: Oil
and gas exploration and development activities, offshore alternative
energy development activities, directed copepod fisheries, and marine
aquaculture. Due to uncertainty in timing of these activities and a
lack of a consultation history for these four new categories, we are
not able to project annual administrative costs for future
consultations because we don't know how many such activities might
occur. However, we expect any of these consultations would each result
in incremental administrative costs for the agencies and applicants
involved of $5,080 per action, again, because these activities will
also require consultation due to impacts to the whales.
As discussed in the Section 4(b)(2) Report, we used administrative
cost estimates for section 7 consultations developed by Industrial
Economics, Inc. (IEc 2014, See exhibit 2-1 at page 2-11 in: Industrial
Economics (2014) Economic Analysis of Critical Habitat Designation of
Marine Habitat for the Northwest Atlantic Ocean Distinct Population
Segment of the Loggerhead Sea Turtle, Final Report, April 29, 2014,
prepared for NMFS, 220 pp, http://www.nmfs.noaa.gov/pr/species/documents/loggerhead_sea_turtle_fea-final.pdf). The IEc (2014) report
provides estimates of administrative costs for different categories of
consultations as follows: (1) New consultations resulting entirely from
critical habitat designation; (2) new consultations considering only
adverse modification (unoccupied habitat); (3) re-initiation of
consultation to address adverse modification; and (4) additional
consultation effort to address adverse modification in a new
consultation. Given that all the consultations we project to result
from this designation will be co-extensive consultations on new actions
that would be evaluating impacts to the whales as well as impacts to
critical habitat, the administrative costs would all be in category 4
above. As discussed in the Section 4(b)(2) Report, we applied the
conservative assumption that all potential future consultations will be
formal consultations (as opposed to less expensive informal
consultations); therefore, the incremental administrative costs for the
agencies and applicants likely represents an overestimation of the
costs.
The example of the higher administrative cost estimate provided by
the commenter of $20,000 per formal consultation was taken from the IEc
(2014) report and represents the cost of a new consultation resulting
entirely from a critical habitat designation (See exhibit 2-1 at page
2-11 (IEc 2014)). As explained above, this scenario does not apply to
the North Atlantic right whale critical habitat designation.
The commenter asserted we improperly concluded that we are unable
to estimate the critical habitat-related section 7 administrative costs
associated with oil and gas exploration and development in Unit 1 on
the basis that we do not have a consultation history on this activity
and are therefore unable to estimate the number of projected section 7
consultations, and their associated costs, due to uncertainty about the
nature, scope, and scale of future activities. The commenter referenced
previous section 7 consultations for actions involving offshore oil and
gas-related activities that have been completed in other areas, such as
the Gulf of Mexico and Alaska, as well as for certain areas in the
Atlantic Ocean. The commenter states that these consultations could
easily be used as the basis for estimating the costs of future oil and
gas-related consultations in Unit 1. However, the number of past
section 7 consultations that have taken place in Alaska, the Gulf of
Mexico, and the Mid-Atlantic does not provide a basis by which we can
estimate the number of potential future oil and gas related activities
in Unit 1, as these planning areas and their state of development are
vastly different from each other. As discussed, we have identified the
incremental costs of future section 7 consultations associated with the
designation of North Atlantic right whale critical habitat in our
4(b)(2) analysis. As discussed in the Biological Source Document and
4(b)(2) Report, we have identified oil and gas exploration and
development as potential future activities that may affect the
essential features of right whale critical habitat. Unit 1 is currently
under a moratorium for oil and gas exploration. Within Unit 1, the
current moratorium is due to expire in 2017 in U.S. waters. The scope
and nature of the previous projects as well as the ecological settings
vary between geographic region, each
[[Page 4852]]
presenting unique environmental impacts and mitigation needs.
Comment 41: One commenter stated that the Section 4(b)(2) Report is
disorganized, at times internally inconsistent, and does not provide a
clear accounting or comparison of the projected costs and the projected
benefits of the proposed designation. The commenter states that
therefore it is difficult to provide specific responsive comments
because the report does not provide a straightforward or specific
explanation of what we have considered to be the costs of the
designation.
Response: The commenter did not provide specific examples of what
they believe is disorganized, unclear, or internally inconsistent with
the Section 4(b)(2) Report. While we disagree with the comment, we have
reviewed the Section 4(b)(2) Report in response to this comment and
have made several minor organizational changes and updates. We believe
that the Section 4(b)(2) Report provides as clear a non-speculative
assessment of the economic, national security, and other relevant
impacts of the designation of critical habitat for the North Atlantic
right whale as is possible given the nature of projecting the type,
scale, number and timing of future activities that may trigger
consultation. As discussed in the Section 4(b)(2) Report, the joint
NMFS and Fish and Wildlife Service (FWS) regulations at 50 CFR 424.19
require NMFS and FWS to conduct an ``incremental analysis'' by
considering economic impacts attributable to the proposed designation
and to describe the impacts either qualitatively or quantitatively. In
order to estimate the incremental costs of the proposed designation, we
attempted to identify whether the potential impacts of any activities
would require efforts to specifically avoid adverse modification or
destruction of the proposed critical habitat. Any such efforts were
considered incremental economic costs of the proposed critical habitat
designation. In addition, the added administrative costs associated
with evaluating impacts to the critical habitat are considered
incremental costs of the proposed designation. While it was not
possible to provide quantitative estimates for all the projected
benefits and costs that may be uniquely attributable to North Atlantic
right whale critical habitat, the analysis attempts to comprehensively
identify (and, wherever practicable, quantify) benefits and costs
attributable to the proposed action. We expect that this critical
habitat designation will result in both direct and indirect benefits,
with non-consumptive use and non-use values representing a significant
component of the benefits derived from the critical habitat. These
values are described qualitatively in the Section 4(b)(2) Report
because the economic studies needed to quantify those benefits are not
available. See also the Response 42.
Comment 42: One commenter stated that we incorrectly assumed that
section 7 consultations for actions that are more likely to affect
listed species than affect essential habitat features have zero costs
associated with critical habitat. Further, the commenter stated that
consultation involving a species for which critical habitat has been
designated results in additional costs that are attributable to the
critical habitat designation, specifically as it relates to analysis
contained in biological opinions. The commenter stated that the report
therefore underestimates the total section 7-related costs incurred as
a result of the designation of North Atlantic right whale critical
habitat.
Response: The comment is not correct. We identified incremental
administrative costs for each future action we projected would require
consultation due to potential impacts to critical habitat.
Administrative section 7 costs estimated at $95,504 are presented in
the Section 4(b)(2) Report and represent the annual, incremental (i.e.,
additional), administrative cost of conducting critical habitat
assessments for a projected 188 formal consultations per year over the
next ten years. The estimated incremental administrative cost for the
agencies and applicants involved in the consultations we identified
totaled $5,080 per action. The incremental administrative costs were
derived from data from the Federal Government Schedule Rates, Office of
Personnel Management, 2013, and a review of consultation records from
several Service field offices across the country. In calculating these
estimates, we assumed all future consultations would be ``formal'' (as
opposed to some being informal); this assumption was applied to avoid
underestimating the administrative costs associated with the critical
habitat.
In terms of project modification costs, we identified those
activities for which project modifications to address impacts to
critical habitat could be required and would be different from any
modifications needed to address impacts to the whales. We could not
monetize project modification costs, because there are too many
variables about potential future actions (e.g., size, location, timing)
that make it impossible to project exactly what type or combination of
project modifications might be needed.
Special Management Considerations and Impacts of the Designation
Comment 43: Several organizations agreed with concerns we raised in
the Biological Source Document that fragmented habitat may have an
adverse impact on successful calving. Several of these commenters
identified additional activities that they believed could fragment
calving habitat and therefore be subject to federal consultation
requirements. Among these were activities that could alter the acoustic
habitat necessary for whale communication including seismic airguns,
pile driving, underwater detonations, military sonar, and vessel
traffic that could interfere with essential physical or biological
features of calving habitat. One organization stated that installation
and operation of oil and gas rigs and supportive structures could act
as a type of barrier to calving right whales and prevent them from
moving around to find optimal combinations of essential calving area
features.
Response: As stated in the Biological Source Document, activities
or conditions that fragment the contiguousness of the essential
features or reduce or eliminate the ``selectability'' of dynamic,
optimal combination of the essential features may have negative impacts
on right whale calving. However, we do not agree that oil and gas rigs
will reduce or eliminate the selectability of dynamic, optimal
combination of the essential calving features. The BOEM presently
implements a 50-mile no-leasing buffer from the Georgia, South
Carolina, and North Carolina coastlines for oil and gas leasing, and
the buffer is being proposed for the 2017-2022 lease sale. Unit 2 off
Florida is not within BOEM's South Atlantic Planning Area (i.e., there
are no oil and gas leases proposed through 2022), based on objections
from the State. Consequently, no oil or gas rigs are projected to be
located within Unit 2.
As stated in the Biological Source Document, activities or
conditions that fragment the contiguousness of the essential features
or reduce or eliminate the ``selectability'' of dynamic, optimal
combination of the essential features may have negative impacts on
right whale calving. The Section 4(b)(2) report also outlines the
process and set of activities we expect may affect the features of the
calving habitat. The activities identified by the commenter may have
impacts on right whales themselves but are not be expected to affect
the essential physical and
[[Page 4853]]
biological features of calving habitat. Therefore, we would consult on
the effect of those activities on the listed species, not the
designated critical habitat.
Comment 44: One commenter stated that the impacts of overlapping
North Atlantic right whale calves and wind farms off Southeast North
Carolina has not been studied and should be added as a future
management concern. This commenter further advocated that no marine
wind energy construction be allowed until impacts on right whales are
understood.
Response: We are also unaware of any studies that investigate the
effects of wind farms on right whales, including calves. In the
proposed rule and Biological Source Document, we identified wind farms
(i.e., offshore energy development) as a reason the calving habitat
essential features may require special management considerations or
protection, given potential impacts on (1) the essential physical
features of North Atlantic right whale calving habitat and (2) the
contiguousness and selectability of the essential features.
Construction and presence of large arrays of permanent structures may
limit the availability of essential habitat features to calving right
whales. Arrays of structures may also act as physical barriers and
prevent or limit the ability of right whale mothers and calves to
select dynamic combinations of the essential habitat features.
Windfarms may also impact the contiguousness the physical habitat
features essential for successful calving. By explicitly acknowledging
these potential impacts to calving right whale critical habitat, we
encourage Federal agencies and applicants whose actions may affect
critical habitat features in these ways to consider and address these
concerns to critical habitat in early planning of such activities.
Comment 45: One commenter stated that hydrokinetic energy is
proposed for coastal Maine and was evaluated by the Department of
Energy (DOE). The commenter stated that the DOE report, though
acknowledging the lack of information on large-scale operations, also
acknowledges that there could be adverse ``effects on bottom habitats,
hydrographic conditions, or animal movements.'' The commenter further
stated that the DOE Report indicated that floating and submerged
structures, mooring lines, and transmission cables associated with
large ocean energy facilities could interfere with the movement of
animals and it cites entanglement risk for right whales that has been
documented in other lines and cables.
Response: In Unit 1, we considered the potential impacts of wave
and tidal energy facilities, should they be developed, on dense
aggregations of copepods and concluded based on the information
available that the activity would not likely affect the survivability
of dense copepod aggregations. We do not believe that hydrokinetic
energy facilities will impact essential physical features in Unit 1.
The basin-wide scale of the physical oceanographic features we have
identified as essential features of foraging habitat in Unit 1 will not
be affected by the relatively localized impacts of hydrokinetics energy
facilities.
Most of ocean energy and hydrokinetic renewable energy technologies
remain at the conceptual stage and have not yet been developed as full-
scale prototypes or tested in the field (DOE 2009). Several potential
hydrokinetic tidal energy sites have been identified in Maine as part
of Maine Tidal Power Initiative (Available at: http://umaine.edu/mtpi/overview). These sites are all located inshore, either at the lower
reaches of rivers or bays. Studies are underway at a potential tidal
turbine site in Eastport, Maine to better understand the impact a tidal
energy project could have on fish.
The DOE (2009) report, cited by the commenter, indicates that
``effects on bottom habitats, hydrographic conditions, or animal
movements'' may possibly need further investigation as part of siting
and licensing a project investigation, not that there could be adverse
effects as suggested. Future proposals for development of hydrokinetic
energy and deployment of arrays will provide an opportunity to evaluate
the potential impacts to the essential features and the species through
the section 7 consultation process.
We considered the potential impacts of the construction and
operation of energy production technologies including hydrokinetic on
the dynamically distributed essential features of calving habitat and
their selectability by right whales. In Unit 2, we concluded that the
installation and operation of offshore energy development facilities
are not likely to negatively impact the preferred ranges of sea surface
roughness, sea surface temperatures, or water depths, in that it will
not raise or lower the available value ranges for these features.
However, installation and operation of these technologies may fragment
large, continuous areas where the essential features are present.
Additionally, installation and operation of these technologies may
limit the availability of the essential features such that right whales
are not able to select dynamic, optimal combinations of the features
necessary for successful calving.
Comment 46: Multiple commenters stated that with regard to the
installation of offshore wind energy facilities, the Biological Source
Document discusses potential offshore wind energy projects only with
regard to the possible adverse impacts on the essential features of
calving habitat in Unit 2. One comment stated that the concerns and
cautions raised for the installation of offshore wind energy facilities
in calving grounds are also applicable to the installation of these
facilities in the northeast, and cited an application for a lease site
in federal waters approximately 12 miles off of Portland, Maine. The
commenter stated that so-called ``floating'' turbines such as are
proposed for this project are anchored to the bottom by heavy cables
that could, as discussed in the Biological Source Document for Unit 2,
impede passage or disrupt current flows, possibly disrupting some of
the physical features of this critical feeding habitat.
Additionally, installation and operation of these technologies may
limit the availability of the essential features such that right whales
are not able to select dynamic, optimal combinations of the features.
This document also stated that ``[l]arger whales may have difficulty
passing through an energy facility with numerous, closely spaced
mooring or transmission lines.''
Response: We disagree with the statement that special management
considerations and protections associated with the potential impacts of
offshore wind energy development on the essential features of calving
habitat in Unit 2 are applicable in Unit 1. The special management
considerations and protections associated with calving and foraging
habitat are different, as are the routes of potential impacts, because
the features are defined differently. We considered the potential
impacts from the construction, operation, and decommissioning of wind
farms on the essential physical and biological foraging features in
Unit 1. We concluded there would be no impacts to the essential
features.
The effects on passage and a whale's ability to feed that the
commenter suggested might be associated with the activity would
constitute impacts on the species and not critical habitat features. On
December 30, 2010, we completed a formal section 7 consultation on the
proposed Cape Wind Energy Project. We
[[Page 4854]]
concluded that all effects to whales from the proposed project were
insignificant or discountable, and therefore the proposed action was
not likely to adversely affect listed whales, including right whales.
While impacts to critical habitat were not considered for this
project because there is none designated within the project's action
area, the potential environmental impacts of the Cape Wind Energy
Project were analyzed (DOE 2012). As part of the analysis, the
potential impact associated with possible alterations to circulation
patterns and currents were considered and determined to be negligible
(DOE 2012). We believe that this would be the case in other future wind
energy projects should they be proposed within Unit 1. Therefore, there
would be no impacts to essential physical foraging features in Unit 1.
Furthermore, we cannot currently identify any mechanisms by which the
construction, operation or decommissioning of a wind energy project
would affect the other essential foraging features we have identified
in Unit 1.
However, future proposals for development of offshore wind
facilities will provide an opportunity to evaluate the potential
impacts to the essential features and the species through the section 7
consultation process.
Comment 47: One commenter stated that for both the Unit 1 and Unit
2 proposed designations, we summarily concluded that future special
management measures may be needed to address possible, but uncertain,
future consequences of climate change. The comment stated that, we did
not identify any special management measures that may address those
projected consequences. Because there is no support for the proposed
climate change-related special management finding, the commenter
recommended that we eliminate it in any final rule that is issued. The
comment stated that critical habitat designations must be supported by
a finding that the essential habitat features ``may require special
management considerations or protection[s].'' 16 U.S.C.
1532(5)(A)(i)(II). The comment stated that any special management
``methods or procedures'' identified by the agency must be ``useful in
protecting physical and biological features of the environment for the
conservation of listed species.'' 50 CFR 424.02(j). The comment stated
that for both Unit 1 and Unit 2, we recited a number of possible future
consequences that the agency believes may be related to climate change
and then summarily concluded that future special management measures
may be needed to address those possible, but uncertain, future
consequences. The commenter stated that we did not speculate as to what
type of special management measures (if any) may be needed with respect
to projected climate change effects. The comment provided previous
cases and legal standards that they believe support this
recommendation, such as ``Cape Hatteras Pres. Alliance, F. Supp. 2d at
124.''
Response: We disagree with this comment. A review of the decision
in Cape Hatteras Access Preservation Alliance v. U.S. Dep't of the
Interior et al., 344 F. Supp. 2d 108 (D.D.C., Nov. 1, 2004), reveals
that the court remanded the critical habitat designation to the U.S
Fish and Wildlife Service (FWS) because they failed to make a
determination as to whether the essential features (``PCEs'') they
identified in the designation of critical habitat may require special
management considerations or protections. The ruling was not that FWS
must make the determinations and also identify specific special
management measures that may be needed with respect to possible future
effects.
In the proposed rule, we identified specific routes, where possible
by which we believe that the essential foraging and calving features
could be impacted by climate change and thus why the features might
require special management considerations or protections in the future
(See pages 117-131 for Unit 1 essential features and pages 139-143 for
Unit 2 in the Biological Source Document).
Comment 48: The commenter stated that one special management
situation for Unit 1 that was not considered is a proposed increase in
shellfish aquaculture. The commenter provided a specific example of a
project under consideration on Jeffreys Ledge as being illustrative of
this particular concern and provided a number of potential impacts
including the introduction of vertical lines and mooring and buoy lines
into the water column. The commenter asserted that this type of
facility might block free passage of whales or disrupt foraging
behavior and increase entanglement risks. The commenter noted that
there are proposals to site other facilities outside of the area in
which the essential foraging features are found (e.g., Nantucket
Sound). The commenter stated that these activities have not been
adequately considered by the agency with regard to potential threats to
right whales and whether they may potentially disrupt foraging behavior
to determine if special management considerations or protections are
necessary.
Response: During the development of the proposed rule and the
supporting documents (e.g., Biological Source Document, Section 4(b)(2)
Report), we conducted an in-depth and thorough analysis of the
potential for a variety of activities to impact the essential features
of foraging and calving habitat including offshore aquaculture. The
potential impacts of the activities cited by the commenter were not
identified as reasons the essential features may require special
management, or as activities that would require section 7 consultation
because they might adversely affect the essential features of foraging
habitat. The introduction of vertical lines, mooring, and buoy lines
into the water column associated with the development of offshore
shellfish aquaculture may present an entanglement risk for large
whales, including right whales, but is not a route of effects to the
essential foraging features of the critical habitat. Thus, the agency
would consider those impacts during a section 7 consultation to insure
those activities are not likely to jeopardize the continued existence
of North Atlantic right whales.
Comment 49: One commenter states that the proposed rule discusses
several activities that may adversely affect essential physical or
biological features and that require special management considerations
or protection. The commenter stated that while they recognize that it
may be unrealistic to list all such activities, a more extensive
discussion of the range of activities that may affect essential
physical and biological features should be provided. The commenter
states that for their recommended feature of ``acoustic habitat
necessary for whale communication or other essential whale behavior''
we should note in the preamble that seismic airguns, pile driving,
underwater detonations, military sonar, and vessel traffic could
interfere with essential physical or biological features, prompting the
need for special management considerations. With regard to feeding
areas, it would be appropriate to note that activities that discharge
contaminants, in addition to those already mentioned in the proposed
rule, and could affect the reproduction or abundance of copepods, also
may trigger special management action. Similarly, the placement of
fishing or other lines in the water column that could interfere with
right whale filter feeding or become caught in right whale baleen may
need special management attention as well.
[[Page 4855]]
Response: The ``special management considerations'' that the
commenter identifies apply to physical and biological features that the
Marine Mammal Commission recommended be identified as essential right
whale critical habitat features. We have considered their
recommendations and have concluded that the features they propose are
not appropriate for identification as such (see responses to comments
34, 35 and 36). Further, many of the activities that they identify and
that they believe require special management are issues related to the
takings of right whales, not impacts to essential features of critical
habitat. The activities identified by the commenter would affect right
whale individuals and not critical habitat itself. Therefore, these
were not identified as part of the impact analysis as having the
potential to affect the essential features.
Comment 50: One commenter stated that the impacts of overlapping
North Atlantic right whale calves and wind farms off Southeast North
Carolina has not been studied and should be added as a future
management concern. This commenter further advocated that no marine
wind energy construction be allowed until impacts on right whales are
understood.
Response: We are also unaware of any studies that investigate the
effects of wind farms on right whales, including calves. In the
proposed rule and Biological Source Document, we identified wind farms
(i.e., offshore energy development) as a reason the calving habitat
essential features may require special management considerations or
protection, given potential impacts on (1) the essential physical
features of North Atlantic right whale calving habitat and (2) the
contiguousness and selectability of the essential features.
Construction and presence of large arrays of permanent structures may
limit the availability of essential habitat features to calving right
whales. Arrays of structures may also act as physical barriers and
prevent or limit the ability of right whale mothers and calves to
select dynamic combinations of the essential habitat features.
Windfarms may also impact the contiguousness the physical habitat
features essential for successful calving. By explicitly acknowledging
these potential impacts to calving right whale critical habitat, we
encourage Federal agencies and applicants whose actions may affect
critical habitat features in these ways to consider and address these
concerns to critical habitat in early planning of such activities.
Comment 51: BOEM commented that their Marine Minerals Program has a
role in sand resources leasing to support identified U.S. Army Corps of
Engineers actions. However, the proposed rule and ESA Section 4(b)(2)
Report did not, but should, consider BOEM's administrative costs for
these actions.
Response: In response to this comment, we modified the Section
4(b)(2) Report to reflect BOEM's sand leasing activities and
administrative costs associated with section 7 consultations.
Comment 52: Several comments discussed the relationship between
critical habitat and take avoidance measures implemented to protect the
species during geological and geophysical activities. One commenter
asked if protection measures would change to accommodate the change in
critical habitat. Another commenter supported extending protection
measures from the 1994-designated critical habitat area to the modified
critical habitat. Finally, one commenter suggested considering the
impact of oil spills from oil and gas activities off the Southeast U.S.
coast on calves and lactating mothers.
Response: The ESA requires Federal agencies, in consultation with
us, to ensure that ``any action authorized, funded, or carried out'' by
the action 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)). The
purpose of the referenced protection measures is to avoid harm to right
whales (the animals themselves). The purpose of consulting on critical
habitat is to avoid destroying or adversely modifying critical habitat.
We are not aware of how measures protecting the species from physical
harm (e.g., injury from vessel strike) would protect habitat essential
features (e.g., water depth in Unit 2); consequently, we do not
anticipate the protection measures will change as the result of
modification to critical habitat. However, protection measures may
change as we all learn more about the North Atlantic right whales--
including their distribution patterns. As far as oil spills, we would
analyze those possible impacts to the animals during ESA section 7
consultations.
Comment 53: One commenter requested that we consider impacts
associated with coastally-located industrial electric generators (e.g.,
Pilgrim Nuclear Power Station, Seabrook Nuclear power station, Mirant
Canal Power Plant) as a cause for special management considerations or
protections. The comment stated that the proposed critical habitat area
includes the large embayments of Cape Cod Bay and Massachusetts Bay and
deep underwater basins, incorporating state and federal waters from
Maine through Massachusetts, but inshore waters were not considered.
The commenter stated that over the last several years, there have been
increasing concentrations of right whales in the western portion of
Cape Cod Bay, including inshore areas off the shore of Plymouth, MA.
The commenter recommended that we consider including these inshore
areas where high concentrations of right whales have been sighted. The
commenter also stated that there may be cumulative impacts to copepods
or other foraging habitat features due to industrial electric
generators operating on the shoreline, such as Entergy's Pilgrim
Nuclear Power Station (PNPS) on the shore of Cape Cod Bay (Plymouth,
MA), Seabrook Station Nuclear Power Plant (SBNPP) (Seabrook, NH), and
Mirant Canal Power Plant (MCPP) (Sandwich, MA). The commenter stated
that negative impacts include entrainment of copepods and other
planktonic species, as well as chemical, thermal and radioactive
discharges occurring in important foraging areas. The comment stated
that this issue should be included as a cause for special management
considerations or protections.
Response: We agree that in recent years there has been an increase
in the concentration of right whales in Western Cape Cod Bay, which has
been included in this critical habitat designation. We have conducted
informal consultations for the relicensing of the named power plants.
The consultations concluded that the relicensing and continued
operation of the power plants was not likely to adversely affect any
NMFS ESA-listed species under our jurisdiction and would be would be
extremely unlikely to adversely affect right whale critical habitat as
it was designated at the time.
The best available scientific information, derived from recent
modeling, indicates that population level effects of zooplankton/
copepods removal due to entrainment in liquefied natural gas (LNG)
operations involving water withdrawals would be so minor that the
change would be indistinguishable from natural variability (NMFS 2007,
Robert Kenney in October 11, 2011, letter to NMFS). While some copepods
are likely lost to entrainment at Pilgrim each year, approximately 85%
of entrained zooplankton are believed to survive. As such, the
essential feature of dense aggregations of late stage C. finmarchicus
does not require special
[[Page 4856]]
management considerations or protection due to entrainment by the PNPS,
SBNPP or MCPP.
Comment 54: One commenter questioned how critical habitat
designation will impact the efficiency and overall processes for future
ESA consultations for BOEM's three programs of Oil and Gas, Renewable
Energy, and Marine Minerals.
Response: The impacts of designating critical habitat on BOEM's
programs are considered in the Economic Impacts section of the proposed
rule and accompanying ESA Section 4(b)(2) Report. How the critical
habitat designation will affect the efficiency and overall process for
future ESA consultations is contingent upon whether BOEM's particular
proposed activity has the potential to adversely affect essential
features in Unit 2, and on the project scope, and routes of effects.
For BOEM's renewable energy programs only, we concluded proposed
actions will more likely affect the essential features of critical
habitat than the species in Unit 2. However, because there are no
records in our consultation history for offshore renewable or
alternative energy projects occurring within Unit 2, we are unable to
(a) predict how many section 7 consultations may result from projects
of this type or (b) calculate the projected incremental costs resulting
from this action. Ultimately, proposed projects will have to be
analyzed on a case-by-case basis and we encourage BOEM to coordinate
with us early in the project development phase.
Comment 55: We received a number of comments from BOEM regarding
Atlantic geological and geophysical (seismic) activities in Unit 2.
Comments included: A request to identify and address effects of
Geological and Geophysical Data Acquisition on critical habitat or
further offshore; an inquiry as to whether the revised critical habitat
would affect existing mitigation measures that are tied to existing
critical habitat or require additional protection measures for the
species (BOEM stated that additional measures were required in recent
consultations on Navy dredging and disposal activities within the 1994-
designated critical habitat); information on and examples of possible
special considerations or protections that may be required as the
result of changes to critical habitat was requested.
Response: We are not aware of any routes of impact concerning
seismic activity that would potentially create adverse effects on the
essential features of Unit 2 of North Atlantic right whale critical
habitat--i.e., the physical features of sea surface conditions or
temperature, or water depths, or their selectability over large
contiguous areas. Consequently, we believe that seismic activities are
more likely to affect the species in Unit 2 than the physical features
of critical habitat. As far as the effects of seismic activity on the
species, we would analyze those possible impacts to the animals during
ESA section 7 consultations.
Comment 56: BOEM requested that the administrative costs associated
with the changes in critical habitat be captured in the Section 4(b)(2)
Report for BOEM's three program areas: Marine minerals, renewable
energy, and oil and gas. BOEM commented that possible additional
protections and special considerations resulting from the modified
critical habitat were not included in the analysis estimating BOEM's
costs for future renewable energy programs. BOEM believes $5,080 per
action underestimates BOEM's true administrative cost so the Section
4(b)(2) Report should be revised.
Response: As mentioned in the Economic Impacts section of the
proposed rule (80 FR 9314, February 20, 2015), we are unable to
quantify the number of potential future consultations and thus the
annualized incremental administrative costs associated with renewable
energy activities in the calving area. The reason for this is that
these are future activities for which there is no past consultation
history, and we received a correspondence from BOEM that stated they
have no specific or planned project proposals. We disagree that $5,080
per action underestimates true incremental administrative costs for
consultations on impacts to critical habitat that will be required as a
result of this rulemaking. We used costs for consultations developed by
Industrial Economics, Inc. (IEc 2014). The administrative costs
associated with critical habitat consultations are low because they
represent the incremental costs of adding critical habitat analyses to
consultations that would be required to address potential impacts to
the species. The costs of consultation that would occur even in the
absence of critical habitat are not incremental costs of this
designation.
Comment 57: One commenter stated although the 4(b)(2) Report
correctly recognizes the potential for oil and gas exploration and
development in Units 1 and 2, we incorrectly assume that project
modifications associated with critical habitat may occur in Unit 1 but
not in Unit 2 for these activities. However, project modifications have
already been proposed in Unit 2 for currently proposed actions that are
solely attributable to right whale critical habitat. For example, the
Bureau of Ocean Energy Management's Record of Decision for the Atlantic
OCS Proposed Geological and Geophysical Activities Mid-Atlantic and
South Atlantic Planning Areas, Final Environmental Impact Statement
recommends an expansion of the time-area closure applicable to right
whale critical habitat to a continuous 37 km wide zone and includes
protective restrictions. None of the costs associated with these
restrictions are identified in the Report and consequently the Report
underestimates critical habitat related costs for oil and gas
activities in Unit 2.
Response: We do not agree that the Section 4(b)(2) Report should be
updated to recognize potential project modifications to oil and gas
exploration and development activities in Units 2. The BOEM Record of
Decision (ROD) for the Atlantic OCS Proposed Geological and Geophysical
Activities Mid-Atlantic and South Atlantic Planning Areas, Final
Environmental Impact Statement (FEIS) contains mitigation measures
intended to avoid or minimize effects to right whales themselves (and
other environmental impacts) related to oil and gas geological and
geophysical (G&G) activities and other proposed G&G activities
throughout the Mid- and South Atlantic Planning areas. These mitigation
measures include guidance for ship strike avoidance, mitigation
measures for seismic airgun surveys and mitigation measures for high
resolution geophysical (HRG) surveys. The mitigation measures are not
intended to provide protection measures for critical habitat features
but are intended to reduce the risk of acoustic and vessel strike
impacts to North Atlantic right whales. Based on our 4(b)(2) impact
analysis, we have not identified any routes of effects for acoustic
impacts to the essential calving features. Any costs associated with
the implementation of such G&G mitigation measures are not attributable
to the designation of right whale critical habitat. As such, the
Section 4(b)(2) Report does not underestimate critical habitat-related
costs for oil and gas activities in Unit 2.
Fishing and Critical Habitat
Comment 58: Several commenters noted that while the proposed rule
does not include any new restrictions for commercial fishing commenters
are concerned about the waters being proposed for designation. The
commenters stated that while we have determined ``current fishing
practices and techniques will not affect the essential foraging
features'' and we do
[[Page 4857]]
not anticipate ``fishery related activities that would trigger
consultation on the basis of critical habitat designation,'' commenters
feel it is not a guarantee. The commenters could not support a formal
designation with the potential to negatively impact fishermen without
concrete scientific evidence of its need.
Response: As part of its impact analysis, we concluded that
commercial fishing activities, as currently conducted, are not expected
to affect the essential features of right whale foraging habitat with
the exception of a potential future directed copepod fishery. Gear
restrictions currently in place to protect large whales, including
right whales, were established by the regulations implementing the
Marine Mammal Protection Act's Atlantic Large Whale Take Reduction
Plan. Changes to gear restrictions are beyond the scope of this
rulemaking to designate critical habitat under the ESA. The Atlantic
Large Whale Take Reduction Team process is the proper venue to consider
the adequacy of gear restrictions. Consequently, we are not making any
changes to the current gear restrictions as part of this critical
habitat rule.
Comment 59: One commenter stated that Maine's lobster industry has
been engaged in the Take Reduction Team process since its inception and
fishermen have worked diligently over nearly two decades to implement
changes in fishing practices to aid in the recovery of right whales.
The commenter questioned the potential impact of new federal
regulations on fishermen and doubted that the proposed designation area
reflects a balanced review of the best available science, nor does it
properly consider the economic impacts that will result from using an
arbitrarily drawn critical habitat area that fails to exclude all areas
that are not essential for conservation and recovery of the species.
Response: We have identified the areas on which are found the
physical and biological features which are essential to the
conservation of the species and which may require special management
considerations or protections as required by the ESA. The boundaries of
the proposed critical habitat encompass the essential foraging and
calving features. In identifying the essential calving and foraging
features and considering the economic impacts of the designation, we
have used the best available data and information. See also Response to
Comment 58 regarding commercial fishing.
Comment 60: Multiple commenters stated that while they support the
concept of expanding the existing critical habitat areas where
essential to the conservation and recovery of the right whale, this
support for the proposed expansion is predicated on our finding in the
Section 4(b)(2) Report that neither commercial nor recreational
fishery[hyphen]related activities are expected to affect the essential
features of right whale foraging habitat with the exception of a
directed copepod fishery.
Response: See response to Comment 58.
Other Comments
Comment 61: Several organizations commented that we should not
exclude areas from critical habitat based on economic or other impacts.
Response: As required by section 4(b)(2) of the ESA, we considered
the economic, national security, and any other relevant impact, of
specifying any particular area as critical habitat. Section 4(b)(2)
allows, but does not require, us to consider excluding a particular
area from a designation, but only if the benefits of excluding that
area outweigh the benefits of including it in the designation, and if
the exclusion will not result in extinction of the species. We
considered the economic impacts of specifying North Atlantic critical
habitat; however, based on those considerations, we are not exercising
our discretion to exclude any areas from the designation.
Comment 62: One commenter stated that we can exclude any area where
the costs of designation, including economic impacts, outweigh the
conservation or economic benefits of designation. Such exclusions avoid
unnecessarily burdening economic activity and designating areas as
critical habitat where there is little or no benefit in doing so. The
comment further stated that the ESA does not require us, in making
section 4(b)(2) decisions, to limit our analysis to only those economic
impacts that are certain and quantifiable. Instead, the economic
analysis is a reasoned projection of what human activities may happen
in the future and the economic impacts that the designation may have on
those future activities.
Response: See response to Comment 61.
Comment 63: Several commenters noted that they supported our
determinations not to designate a migratory corridor or breeding areas
as critical habitat or to designate unoccupied areas as critical
habitat.
Response: We acknowledge these comments.
Comment 64: One commenter was concerned about possible impacts of
the proposed critical habitat designation on ferry service in the
coastal waters and islands of Maine, New Hampshire and Boston Harbor/
Massachusetts Bay that are served by existing or likely ferry routes.
The commenter recommended that the Secretary exercise her discretion
under section 4(b)(2) of the Endangered Species Act and exclude coastal
ferry routes from the critical habitat designation. The commenter
stated that they believe that the expansion of critical habitat in the
coastal waters of Unit 1 will lead to proposals to expand or create
seasonal management areas with mandatory speed limits. The commenter
expressed concern that we did not evaluate the potential economic
impact of the proposed designation on ferry operators, the majority of
whom are classified as small businesses or entities under the criteria
of the U.S. Small Business Administration. The commenter noted they
recognize that the critical habitat designation alone will impose no
direct or immediate burden or impact on the ferry systems.
Response: We do not believe that the normal transit of coastal
ferries through areas designated as critical habitat will have any
impact on the essential foraging features present in Unit 1 waters of
the Gulf of Maine and Georges Bank. We have concluded that transiting
vessels, whether military, civilian, or commercial do not impact the
essential foraging features of critical habitat. Furthermore, we are
not aware of a federal nexus regarding routine operation of the ferries
such that this activity would be subject to the federal consultation
requirements of section 7 of the ESA. Therefore, there will be no
impact to the operation of ferries as a result of the designation of
critical habitat and as such, no impacts to these small business
entities. Under the ship speed rule (73 FR 6017, December 10, 2008),
vessels greater than 65' in length are required to not exceed 10 knots
seasonally in certain locations covered by seasonal management areas
(SMAs) or are recommended to maintain speeds of 10 knots or less in
dynamic management areas in certain times and locations. These measures
are in place to reduce the risk of serious injury and mortality to
right whales due to ship strikes.
Beyond the Scope of This Action
Comment 65: One commenter stated that we failed to mention the
potential impacts of noise on right whale mothers and calves and their
need to stay together during the calving and nursing season. The need
for ``noise levels to remain below those that would cause abandonment
of critical habitat'' has
[[Page 4858]]
previously been recognized by us in our designation of critical habitat
for other sound dependent marine mammals. This commenter cited our
designation of critical habitat for Cook Inlet Beluga Whale. The
commenter also stated that activities, such as seismic airguns, pile
driving, underwater detonations, military sonar, and vessel traffic,
could alter the acoustic habitat necessary for whale communication and
interfere with the use of calving habitat; and therefore, sound
qualifies as an essential feature that may require special management
considerations.
Response: As stated in the Federal Register Notice of Proposed
Rulemaking for Cook Inlet Beluga Whale Critical Habitat (74 FR 63080,
December 2, 2009), 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. For these, and other
reasons, we consider ``quiet'' areas in which noise levels do not
interfere with important life history functions and behavior of these
whales to be an essential feature of Cook Inlet Beluga Whale critical
habitat.
In contrast, in our final rule to designate critical habitat for
the southern resident killer whale, we discussed the lack of sufficient
information to include noise as an essential feature, but noted that we
would continue to consider sound in any future revisions of that
critical habitat (71 FR 69054, November 29, 2006). In that rule, we
acknowledged the many observations about the potential for sound to
startle or even physically injure killer whales. These effects,
however, are direct effects to the animal itself and not to its
habitat.
Physical and biological features that are identified as essential
to the conservation of a species vary among species. Similar to
southern resident killer whales, we lack sufficient information to
include noise as an essential feature for North Atlantic right whale
calving area critical habitat. Unlike the other physical features
identified as essential to the conservation of right whales because
they facilitate successful calving, we are not aware of any information
on acoustic thresholds that facilitate successful calving in right
whales or other baleen whales. However, the agency has conducted and
will continue to conduct ESA section 7 consultations on noise impacts
of construction and geologic and geophysical exploration activities,
and in completed consultations, measures have been included to avoid
direct impacts to the whales as a consequence of noise associated with
the proposed activities.
Comment 66: One commenter recommended that the agency expand
Seasonal Management Areas that reduce ship strikes to include all
portions of the proposed critical habitat in the northeast and critical
habitat in the mid-Atlantic migratory corridor out to 30 nm as well as
areas in the Southeast Atlantic.
Response: The commenters assertion that the SMA boundaries be
reconfigured and extended out to 30 nautical miles from shore are
beyond the scope of this rulemaking as the SMA rulemaking was
concerning risk reduction to large whale interactions directly with
North Atlantic right whales not its habitat. The purpose of the
Seasonal Management Area (SMA) program is to promote direct protection
to North Atlantic right whales by reducing the likelihood of death and
serious injury that may result from collisions with ships. The SMA
boundaries were based on right whale sightings not the presence of
physical and biological features associated with right whale migration.
The SMA program is not intended to provide protections to the essential
features of right whale critical habitat.
Comment 67: A commenter stated that the right whale population data
used to support the proposed designation is not based on the best
available science. The commenter noted the discrepancy between the
North Atlantic Right Whale Consortium's 2012 and 2014 Right Whale
Report Cards, which indicated that the population was at least 509 and
522 whales, respectively; and the 450 population number referenced by
us. The commenter stated that we should amend our rule to reflect this
best available science.
Response: The current abundance of North Atlantic right whales is
not directly relevant to designating critical habitat, and we disagree
with the assertion that we did not rely on the best available science
when determining which areas meet the definition of critical habitat
under the ESA. Furthermore, although not relevant to this rulemaking,
we offer the following explanation of the differing abundance estimates
cited by the commenter. The estimates provided in the North Atlantic
Right Whale Consortium's reports state, ``This `best estimate' is based
upon the number of photographed whales, but it excludes potential
unphotographed whales, and therefore, should not be considered a
`population estimate.' '' Therefore, it is not considered to be an
appropriate estimate to use for right whale abundance. However, the
Marine Mammal Protection Act requires that we use the minimum
population estimate to ensure a more precautionary, conservative
approach in the management of the marine mammal species. The 2014 Final
NMFS Marine Mammal Stock Assessment Report (SARs) indicates 465
individually recognized North Atlantic right whales were known to be
alive in 2011 (Waring et al. 2015)--this is a direct count, represents
a minimum population size, is peer-reviewed, published, and is
considered the best available science. We are required to use the
minimum population developed by the NOAA Fisheries Northeast Fisheries
Science Center for the annual Marine Mammal Stock Assessment Reports in
our management actions.
Comment 68: One commenter expressed concerns about the lack of
regulation in Canadian waters, noting that, right whales traverse
international borders and yet there has been no effort made to
establish uniform regulations across U.S. and Canadian waters. The
commenter also appreciated our caution in not designating a mating
habitat area.
Response: As stated in the proposed rule, we are not authorized to
designate critical habitat outside of U.S. jurisdiction. However, we
acknowledge the commenter's view concerning the non-designation of a
critical habitat associated with mating, and we will continue to work
with our Canadian counterparts to coordinate and implement measures
necessary to promote the conservation and recovery of protected species
including the North Atlantic right whale.
Comment 69: One commenter recommended that right whales be
protected from gear entanglement through expanded SMAs and expanding
entanglement regulations to encourage the use of gear innovations such
as sinking or neutrally buoyant line to reduce and prevent entanglement
and to promote science based catch quotas.
Response: The commenter's suggestion is beyond the scope of this
rulemaking (see response to Comment 58).
Comment 70: A number of commenters expressed concerns about seismic
exploration for oil and gas in proposed critical habitat. Concerns for
right whales included: Habitat displacement, injuries, mortalities,
behavioral disruption, acoustic masking, increase in noise pollution
(particularly
[[Page 4859]]
as climate change impacts increase), and impacts to reproduction and
survival. One commenter suggested that oil and gas rigs may act as a
type of barrier similar to types of barriers we identify with regard to
other activities. One commenter stated that oil and gas activities may
require management considerations similar to the installation and
operation of offshore energy development facilities. Seismic testing,
drilling, vessel traffic, construction of infrastructure, and
industrialization of the coast may fragment large, contiguous areas
containing the optimum ranges of all essential features that are
necessary for right whale calving and rearing.
Response: In the Biological Source Document and Section 4(b)(2)
Report, we concluded that future potential oil and gas leasing
development was one of the reasons the essential features may require
special management considerations or protection in Unit 1. However, we
do not anticipate oil and gas rig construction in Unit 2, because BOEM
presently implements a 50-mile no-leasing buffer from the coastline for
oil and gas leasing off Georgia and South and North Carolina. That
buffer is being proposed for the year 2017 through 2022. No oil and gas
leases off Florida are planned through 2022. We have clarified that in
the final Section 4(b)(2) Report and Biological Source Document. We
will work with BOEM to determine whether any of the activities listed
by the commenters and proposed or authorized by BOEM may affect right
whales (or any other listed species under our purview) or may affect
right whale critical habitat, and thus require section 7 consultation.
Comment 71: One commenter recommended that right whales be
protected from proposed oil and gas exploration and development in the
Atlantic Ocean through rules that prevent or limit the seismic airgun
activity.
Response: See response to comment 49. Based on our analysis of past
and potential future activities that may affect critical habitat, we
identified a number of activities with the potential to affect the
essential features of right whale critical habitat. Seismic airguns
were not identified as having the potential to impact right whale
critical habitat. The effects of any oil and gas exploration activities
and their potential to impact right whales as well as critical habitat
will be analyzed in section 7 consultations.
Information Quality Act and Peer Review
The data and analyses supporting this designation have undergone a
pre-dissemination review and have been determined to be in compliance
with applicable information quality guidelines implementing the
Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In
December 2004, the Office of Management and Budget (OMB) issued a Final
Information Quality Bulletin for Peer Review pursuant to the IQA. The
Bulletin established minimum peer review standards, a transparent
process for public disclosure of peer review planning, and
opportunities for public participation with regard to certain types of
information disseminated by the Federal Government. The peer review
requirements of the OMB Bulletin apply to influential or highly
influential scientific information disseminated on or after June 16,
2005. To satisfy our requirements under the OMB Bulletin, we obtained
independent peer review of the Biological Source Document and Section
4(b)(2) Impacts Report that support the designation of critical habitat
for the North Atlantic right whale, and we incorporated the peer review
comments prior to publishing the proposed rule. The final peer review
report is available along with all materials related to the peer review
on the agency's Web site at: http://www.cio.noaa.gov/services_programs/prplans/ID259.html. The majority of the peer review comments were
editorial in nature, and no substantive comments were received. For
additional information on the specific comments received please see the
Web site identified above.
Changes From Proposed Rule
We are making one change from the proposed rule to the areas
designated as right whale critical habitat. The one change is based on
public comments received and further review of the best available
scientific data. We are extending Unit 2 further to the south to
include an area that is a portion of the critical habitat designated in
1994, expanding the area south and increasing Unit 2 by approximately
341 nm\2\. Unit 2 now includes nearshore and offshore waters of the
southeastern U.S., extending from Cape Fear, North Carolina south to
approximately 27 nm below Cape Canaveral, Florida.
In addition to this change, we corrected an inadvertent omission of
coordinates by which we have determined that following inshore waters
associated with the harbors of Sandwich, Scorton and Barnstable should
be excluded from the proposed critical habitat area of Unit 1. We also
corrected a few omissions from the Section 4(b)(2) report, based on
input from commenters.
Critical Habitat Identification and Designation
Critical habitat is defined by section 3 of the ESA as (1) 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 (a) essential to the conservation of the species and (b) which
may require special management considerations or protection; and (2)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species.
Geographical Areas Occupied by the Species
``Geographical areas occupied'' in the definition of critical
habitat is interpreted to mean the entire range of the species at the
time it was listed, inclusive of all areas they use and move through
seasonally (45 FR 13011, February 27, 1980). Prior to extensive
exploitation, the North Atlantic right whale occurred in temperate,
subarctic, coastal and continental shelf waters throughout the North
Atlantic Ocean rim (Perry et al. 1999). Considerable sightings data
document the use of areas in the western North Atlantic Ocean where
right whales presently occur. The current known distribution of North
Atlantic right whales is largely limited to the western North Atlantic
Ocean. In the western North Atlantic, right whales migrate along the
North American coast between areas as far south as Florida, and
northward to the Gulf of Maine, the Bay of Fundy, the Gulf of St.
Lawrence and the Scotian shelf, extending to the waters of Greenland
and Iceland (Waring et al. 2011).
Right whales have also been rarely observed in the Gulf of Mexico.
The few published sightings (Moore and Clark 1963; Schmidly and Melcher
1974; Ward-Geiger et al. 2011) represent either geographic anomalies or
a more extensive historic range beyond the sole known calving and
wintering ground in the waters of the southeastern United States
(Waring et al. 2009). Therefore, the Gulf of Mexico is not considered
part of the geographical area occupied by the species ``at the time it
was listed.''
Our regulations at 50 CFR 424.12(h) state: ``Critical habitat shall
not be designated within foreign countries or
[[Page 4860]]
in other areas outside of United States jurisdiction.'' Although North
Atlantic right whales have been sighted in coastal waters of Canada,
Greenland, Iceland, and Norway, these areas cannot be considered for
designation. The geographical area occupied by listed North Atlantic
right whales that is within the jurisdiction of the United States is
therefore limited to waters off the U.S. east coast between Maine and
Florida, seaward to the boundary of the U.S. Exclusive Economic Zone.
Physical or Biological Features Essential for Conservation of the
Species
Within the geographical area occupied, critical habitat consists of
specific areas on which those physical or biological features essential
to the conservation of the species are found (hereafter referred to as
``essential features'') and that may require special management
considerations or protection. Section 3 of the ESA (16 U.S.C. 1532(3))
defines the terms ``conserve,'' ``conserving,'' and ``conservation'' in
part to mean: ``To use and the use of all methods and procedures which
are necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this chapter are
no longer necessary.'' Further, our regulations at 50 CFR 424.12(b) for
designating critical habitat state that physical and biological
features that are essential to the conservation of a given species and
that may require special management considerations or protection may
include: (1) Space for individual and population growth and for normal
behavior; (2) food, water, air, light, minerals, or other nutritional
or physiological requirements; (3) cover or shelter; (4) sites for
breeding, reproduction, rearing of offspring, germination, or seed
dispersal, and generally; (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of a species.
As noted previously, we produced a Biological Source Document (NMFS
2015a) that discusses our application of the ESA's definition of
critical habitat for right whales in detail. When defining critical
habitat for right whales, we considered the physical and/or biological
features of foraging and calving habitats. The features of right whale
foraging habitat that are essential to the conservation of the North
Atlantic right whale are a combination of the following biological and
physical oceanographic features:
(1) The physical oceanographic conditions and structures of the
Gulf of Maine and Georges Bank region that combine to distribute and
aggregate C. finmarchicus for right whale foraging, namely prevailing
currents and circulation patterns, bathymetric features (basins, banks,
and channels), oceanic fronts, density gradients, and temperature
regimes;
(2) Low flow velocities in Jordan, Wilkinson, and Georges Basins
that allow diapausing C. finmarchicus to aggregate passively below the
convective layer so that the copepods are retained in the basins;
(3) Late stage C. finmarchicus in dense aggregations in the Gulf of
Maine and Georges Bank region; and
(4) Diapausing C. finmarchicus in aggregations in the Gulf of Maine
and Georges Bank region.
The physical and biological features of right whale calving habitat
that are essential to the conservation of the North Atlantic right
whale are: (1) Calm sea surface conditions of Force 4 or less on the
Beaufort Wind Scale; (2) sea surface temperatures from a minimum of 7
[deg]C, and never more than 17 [deg]C; and (3) water depths of 6 to 28
meters, where these features simultaneously co-occur over contiguous
areas of at least 231 nm\2\ of ocean waters during the months of
November through April. When these features are available, they are
selected by right whale cows and calves in dynamic combinations that
are suitable for calving, nursing, and rearing, and which vary, within
the ranges specified, depending on factors such as weather and age of
the calves.
Beyond the uncertainty over the location of one or more migratory
corridors, we cannot currently identify any specific physical or
biological features that define migratory habitat. Therefore, we have
concluded that it is not currently possible to define critical habitat
associated with right whale migratory behaviors.
Large-scale migratory movements between feeding habitat in the
northeast and calving habitat in the southeast are a necessary
component in the life history of the North Atlantic right whale. A
proportion of the population makes this migration annually, and the
most valuable life-history stage (calving females) must make this
migration for successful reproduction. The subset of the North Atlantic
right whale population that has been observed migrating between the
northern feeding grounds and southern calving grounds is comprised
disproportionately of reproductively mature females, pregnant females,
juveniles, and young calves (Ward-Geiger et al. 2005; Fujiwara and
Caswell 2001; Kraus et al. 1986, as cited by Firestone et al. 2008).
For logistical reasons, survey efforts have also been disproportionally
focused in the nearshore area (within 30 nm of shore). The Biological
Source Document (NMFS 2015a) contains a thorough discussion of the
available data we considered in our analysis.
Likewise, we have concluded that it is not possible to identify
essential physical or biological features related to breeding habitat,
primarily because we cannot identify areas where breeding occurs. Right
whales are known to aggregate in large groups known as Surface Active
Groups (SAGs). While indicative of courtship and reproductive behavior,
not all SAGs are reproductive in nature (Kraus et al. 2007). SAGs are
observed year round, both in the northeast feeding areas as well as in
the southeast calving grounds. SAGS are usually observed
opportunistically during directed survey efforts as well as other
random sightings.
Specific Areas Within the Geographical Area Occupied by the Species
The definition of critical habitat instructs us to identify
specific areas on which the physical or biological features essential
to the species' conservation are found. Our regulations state that
critical habitat will be defined by specific limits using reference
points and lines on standard topographic maps of the area, and
referencing each area by the state, county, or other local governmental
unit in which it is located (50 CFR 424.12(c)). Our regulations also
state that when several habitats, each satisfying requirements for
designation as critical habitat, are located in proximity to one
another, an inclusive area may be designated as critical habitat (50
CFR 424.12(d)). We identified two ``specific areas'' within the
geographical area occupied by the species, at the time of listing, that
contain the essential features for right whale foraging and calving
habitat.
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[[Page 4861]]
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Consistent with our regulations (50 CFR 424.12(c)), we have
identified one ``specific area'' within the geographical area occupied
by the species at the time of listing, that contains the identified
physical and biological features of foraging habitat that are essential
to the conservation of North Atlantic right whales. This encompasses a
large area within the Gulf of Maine and Georges Bank region, including
the large embayments of Cape Cod Bay and Massachusetts Bay and deep
underwater basins. This area also incorporates state waters, except for
inshore areas, bays, harbors, and inlets, from Maine through
Massachusetts in addition to federal waters.
The specific area on which the physical and biological features
essential to foraging and thus to the conservation of the North
Atlantic right whale are found includes all waters, seaward of the
boundary depicted in Figure 1 (see below for actual coordinates). The
boundary of the critical habitat for Unit 1 is delineated generally by
a line connecting the geographic coordinates and landmarks as follows:
From the southern tip of Monomoy Island (Cape Cod) (41[deg]38.39' N.,
69[deg]57.32' W.) extending southeasterly to 40[deg]50' N., 69[deg]12'
W. (the Great South Channel), then east to 40[deg]50' N. 68[deg]50' W.
From this point, the boundary extends northeasterly
[[Page 4862]]
direction to 42[deg]00' N., 67[deg]55' W. and then in an easterly
direction to 42[deg]00' N. 67[deg]30' W. From this point, the boundary
extends northeast along the northern edge of Georges Bank to the
intersection of the U.S.-Canada maritime boundary at 42[deg]10' N.,
67[deg]09.38' W. The boundary then follows the U.S.-Canada maritime
boundary north to the intersection of 44[deg]49.727' N., 66[deg]57.952'
W. From this point, moving southwest along the coast of Maine, the
specific area is located seaward of the Maine exemption line developed
as part of the Atlantic Large Whale Take Reduction Plan to the point
(43[deg]02.55' N., 70[deg]43.33' W.) on the coast of New Hampshire
south of Portsmouth, NH. The boundary of the area then follows the
coastline southward along the coasts of New Hampshire and Massachusetts
along Cape Cod to Provincetown southward along the eastern edge of Cape
Cod to the southern tip of Monomoy Island. As noted, the specific area
includes the large embayments of Cape Cod Bay and Massachusetts Bay but
does not include inshore areas, bays, harbors and inlets. In addition,
the specific area does not include waters landward of the 72 COLREGS
lines (33 CFR part 80) as described below.
The second ``specific area'' we identified contains the essential
features identified for North Atlantic right whale calving. The
southeast right whale calving area consists of all marine waters from
Cape Fear, North Carolina, southward to approximately 27 nm below Cape
Canaveral, Florida, within the area bounded on the west by the
shoreline and the 72 COLREGS lines, and on the east by rhumb lines
connecting the specific points described below.
Based on the prior discussion and consistent with our regulations
(50 CFR 424.12(d)), we identified one ``specific area'' within the
geographical area occupied by the species, at the time of listing, that
contains the essential features for calving right whales in the
southeastern U.S (Figure 2). This area comprises waters of Brunswick
County, North Carolina; Horry, Georgetown, Charleston, Colleton,
Beaufort, and Jasper Counties, South Carolina; Chatham, Bryan, Liberty,
McIntosh, Glynn, and Camden Counties, Georgia; and Nassau, Duval, St.
John's, Flagler, Volusia, and Brevard Counties, Florida.
[[Page 4863]]
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Special Management Considerations or Protection
Specific areas within the geographical area occupied by a species
may be designated as critical habitat only if they contain physical or
biological features that ``may require special management
considerations or protection.'' To meet
[[Page 4864]]
the definition of critical habitat, it is not necessary that the
features currently require special management considerations or
protection, only that they may require special management
considerations or protections. Our regulations define ``special
management considerations or protections'' to mean ``any methods or
procedures useful in protecting physical and biological features of the
environment for the conservation of listed species'' (50 CFR
424.02(j)). As noted previously, we produced a Biological Source
Document (NMFS 2015a) that discusses our application of the ESA's
definition of critical habitat for right whales in detail, including
evaluation of whether essential features ``may require special
management considerations or protections.''
As summarized in the Biological Source Document (NMFS 2015a), the
essential features of right whale foraging habitat may require special
management considerations or protections because of possible negative
impacts from the following activities and events: (1) Zooplankton
fisheries, (2) effluent discharge from municipal outfalls, (3)
discharges and spills of petroleum products to the marine environment
as a result of oil and gas exploration, development and transportation,
and (4) climate change.
The essential features of right whale calving habitat may require
special management considerations or protections because of possible
negative impacts from the following activities and events: Offshore
energy development, large-scale offshore aquaculture operations, and
global climate change. These activities and their potential broad-scale
impacts on the essential features are discussed in detail in the
Biological Source Document (NMFS 2015a).
Unoccupied Areas
ESA section 3(5)(A)(ii) defines critical habitat to include
specific areas outside the geographical area occupied if the areas are
determined by the Secretary to be essential for the conservation of the
species. Regulations at 50 CFR 424.12(e) specify that we 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. Our regulations at 50 CFR 424.12(h) also state: ``Critical
habitat shall not be designated within foreign countries or in other
areas outside of United States jurisdiction.'' At the present time, the
geographical area occupied by listed North Atlantic right whales which
is within the jurisdiction of the United States is limited to waters
off the U.S. east coast from Maine through Florida, seaward to the
boundary of the U.S. Exclusive Economic Zone. As discussed previously,
the Gulf of Mexico is not considered part of the geographical area
occupied by the species, nor do we consider it an unoccupied area
essential to the species' conservation given the infrequent use of the
area by right whales in the past. We have not identified any other
areas outside the geographical area occupied by the species that are
essential for their conservation and therefore are not proposing to
designate any unoccupied areas as critical habitat for the North
Atlantic right whale.
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B)(i) prohibits designating as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DOD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP), if we determine
that such a plan provides a benefit to the species (16 U.S.C.
1533(a)(3)(B)).
No areas within the specific areas designated are covered by
INRMPs. Therefore, there are no military lands ineligible for
designation as critical habitat within Unit 1 and Unit 2.
Application of ESA Section 4(b)(2)
The foregoing discussion described the specific areas within U.S.
jurisdiction that fall within the ESA section 3(5) definition of
critical habitat in that they contain the physical and biological
features essential to the North Atlantic right whale's conservation
that may require special management considerations or protection.
Section 4(b)(2) of the ESA requires that we consider the economic
impact, impact on national security, and any other relevant impact, of
designating any particular area as critical habitat. Additionally, the
Secretary has the discretion to consider excluding any area from
critical habitat if she determines the benefits of exclusion (that is,
avoiding some or all of the impacts that would result from designation)
outweigh the benefits of designation based upon the best scientific and
commercial data available. The Secretary may not exclude an area from
designation if exclusion will result in the extinction of the species.
Because the authority to exclude is discretionary, exclusion is not
required for any particular area under any circumstances.
The following discussion of impacts summarizes the analysis
contained in our ESA Section 4(b)(2) Report (NMFS 2015b), which
identifies the economic, national security, and other relevant impacts
that we projected would result from including each of the two specific
areas in the critical habitat designation. We considered these impacts
when deciding whether to exercise our discretion to propose excluding
particular areas from the designation. Both positive and negative
impacts were identified and considered (these terms are used
interchangeably with benefits and costs, respectively). Impacts were
evaluated in quantitative terms where feasible, but qualitative
appraisals were used where that was more appropriate to particular
impacts. The ESA Section 4(b)(2) Report (NMFS 2015b) is available on
our Web site at www.greateratlantic.fisheries.noaa.gov.
The primary impacts of a critical habitat designation result from
the ESA section 7(a)(2) requirement that Federal agencies ensure their
actions are not likely to result in the destruction or adverse
modification of critical habitat, and that they consult with us in
fulfilling this requirement. Determining these impacts is complicated
by the fact that section 7(a)(2) also requires that Federal agencies
ensure their actions are not likely to jeopardize the species'
continued existence. One incremental impact of designation is the
extent to which Federal agencies modify their proposed actions to
ensure they are not likely to destroy or adversely modify the critical
habitat beyond any modifications they would make because of listing and
the jeopardy requirement. When the same modification would be required
due to impacts to both the species and critical habitat, the impact of
the designation is co-extensive with the ESA listing of the species
(i.e., attributable to both the listing of the species and the
designation critical habitat). To the extent possible, our analysis
identified impacts that were incremental to the designation of critical
habitat--meaning those impacts that are over and above impacts
attributable to the species' listing or any other existing regulatory
protections. Relevant, existing regulatory protections (including the
species' listing) are referred to as the ``baseline'' and are also
discussed in the Section 4(b)(2) Report.
The ESA Section 4(b)(2) Report describes the projected future
federal activities that would trigger section 7 consultation
requirements because they may affect the essential features, and
consequently may result in economic
[[Page 4865]]
costs or negative impacts. Additionally, the report describes broad
categories of project modifications that may reduce impacts to the
essential features, and states whether the modifications are likely to
be solely a result of the critical habitat designation or co-extensive
with another regulation, including the ESA listing of the species. The
report also identifies the potential national security and other
relevant impacts that may arise due to the critical habitat
designation, such as positive impacts that may arise from conservation
of the species and its habitat, state and local protections that may be
triggered as a result of designation, and education of the public to
the importance of an area for species conservation.
Economic Impacts
Economic impacts of the critical habitat designation result through
implementation of section 7 of the ESA in consultations with Federal
agencies to ensure their proposed actions are not likely to destroy or
adversely modify critical habitat. These economic impacts are discussed
in further detail in the Section 4(b)(2) Report (NMFS 2015b) and the
proposed rule of this action. Changes to Economic Impacts as a result
of the change in area to Unit 2 are described below.
Six categories of activities were identified as likely to recur in
the future and have the potential to affect the essential features:
1. Environmental Protection Agency (EPA) Clean Water Act permitting
or management of pollution discharges through the NPDES programs in
Unit 1;
2. United States Coast Guard (USCG) authorization or use of
dispersants during an oil spill response in Unit 1;
3. U.S. Army Corps of Engineers (USACE) maintenance dredging or
permitting of dredge and disposal activities under the Clean Water Act
in Unit 2;
4. USACE permitting of marine construction, including shoreline
restoration and artificial reef placement under the Rivers and Harbors
Act and/or Clean Water Act in Unit 2;
5. The Maritime Administration's permitting of siting and
construction of offshore liquefied natural gas facilities in Unit 1;
6. The Bureau of Ocean Energy Management's (BOEM's) permitting of
sand extraction on the Outer Continental Shelf in Unit 2.
As discussed in more detail in our ESA Section 4(b)(2) Report (NMFS
2015b), we determined that two of these federal actions, Water Quality/
NPDES related actions and oil spill response activities implemented
respectively by the EPA and the USCG, could result in incremental
impacts from section 7 consultations related to the critical habitat.
Additionally, we identified four categories of activities that have
not occurred in the critical habitat areas in the past but based on
available information and discussions with action agencies, may occur
in the future. If they do occur, these activities may adversely affect
the essential features. These projected activities are: Oil and gas
exploration and development activities, directed copepod fisheries,
offshore alternative energy development activities, and marine
aquaculture. As with past or ongoing federal activities in the critical
habitat areas, these four categories of projected future actions may
trigger consultation because they have the potential to adversely
affect both the essential features and the whales themselves. Three
categories of future activities were judged as being likely to have
incremental impacts due to the critical habitat: Oil and gas
exploration and development activities (Unit 1), directed copepod
fishery (Unit 1), and offshore alternative or renewable energy
activities (Unit 2). Consequently, costs of project modifications
required through section 7 were considered to be incremental impacts of
the designation.
As previously mentioned, we assumed that all future activities that
may affect the essential features will require formal consultations.
Based on analyses conducted by Industrial Economics, Inc. (Industrial
Economics 2014), we project that each formal consultation will result
in the following additional costs to address critical habitat impacts:
$1,400 in NMFS' costs; $1,600 in action agency costs; and $880 in third
party (e.g., permittee) costs, if applicable. Administrative costs for
the projected number of formal consultations representing incremental
costs of the critical habitat designation were estimated in the
proposed rule to total approximately $82,296 per year. Based on the
addition of 22 consultations that may occur as a result of the expanded
Unit 2 area, the incremental administrative costs of the critical
habitat designation are now expected to total approximately $95,504 per
year. As discussed in responses to comments, to evaluate and consider
the economic impacts of including this area to Unit 2, we followed the
same methodology described in the proposed rule (80 FR 9314, February
20, 2015) and in the Section 4(b)(2) Report (NMFS 2015b).
Based on our analysis of past consultation history, we project that
over the next ten years, there will be 22 consultations, or about 2
consultations per year, in this area which may affect the features of
critical habitat. Eleven of these projects are expected to involve
dredging and/or disposal by the U.S. Army Corps of Engineers. Eleven
projects are expected to involve permitting of marine construction or
artificial reef placement by the U.S. Army Corps of Engineers. Thus,
adding the southern extension is not expected to involve additional
federal agency nor additional federal actions that are different from
those that will be conducted in the rest of Unit 2. As discussed in the
Section 4(b)(2) Report, these activities are only expected to involve
incremental administrative costs of consultation, as a result of this
designation. Annual administrative costs for these projected
consultations is $10,160 (at $5,080 per consultation--see the Economics
Impact section in the Notice of Proposed Rulemaking and the Section
4(b)(2) Report for background information on the costs for conducting
consultations).
Relative to projected, new activities, offshore renewable/
alternative energy may occur in the southern extension area, given its
proximity to shore and available information about where and how these
activities might be implemented (www.boem.gov/Florida/). Because there
are no records in our consultation history for offshore renewable or
alternative energy projects occurring within Unit 2, we are unable to
(a) predict how many section 7 consultations may result from projects
of this type over the next 10 years or (b) calculate the projected
incremental costs resulting from this action. We are not aware of any
other future new federal activity that may be implemented in the
southern extension area.
National Security Impacts
Previous critical habitat designations have recognized that impacts
to national security result if a designation would trigger future ESA
section 7 consultations because a proposed military activity ``may
affect'' the physical or biological features essential to the listed
species' conservation. Anticipated interference with mission-essential
training or testing or unit readiness, either through delays caused by
the consultation process or through expected requirements to modify the
action to prevent adverse modification of critical habitat, has been
identified as a negative impact of critical habitat designations. (See,
e.g., Proposed Designation of Critical Habitat for the Pacific Coast
Population of the Western Snowy Plover (71 FR 34571, June 15,
[[Page 4866]]
2006, at 34583); and Proposed Designation of Critical Habitat for
Southern Resident Killer Whales (69 FR 75608, December 17, 2004, at
75633).)
Based on the past consultation history and information submitted by
DOD for this analysis, it is unlikely that consultations with respect
to DOD activities will be triggered as a result of the critical habitat
designation.
In September 2009, and again in November 2010, we sent letters to
DOD requesting information on national security impacts of the proposed
critical habitat designation, and we received responses from the Navy,
United States Marine Corps (USMC), USCG, Department of Homeland
Security (DHS), and the United States Air Force (USAF). We discuss the
information contained within the responses thoroughly in the Section
4(b)(2) Report (NMFS 2015b).
Based on a review of the information provided by the Navy, USMC,
and USCG, DHS, and USAF, and on our review of the activities conducted
by these entities associated with national security within the specific
areas designated as right whale critical habitat, their activities have
no routes of potential adverse effects to the essential features and
will not require consultation to prevent adverse effects to critical
habitat (see Section 4(b)(2) Report, NMFS 2015b). Therefore, based on
information available at this time, we do not anticipate there will be
national security impacts associated with the critical habitat for the
North Atlantic right whale.
Other Relevant Impacts
Other relevant impacts of critical habitat designations can include
conservation benefits to the species and to society, and impacts to
governmental and private entities. Our Section 4(b)(2) Report (NMFS
2015b) discusses conservation benefits of designating the two specific
areas, and the benefits of conserving the right whale to society, in
both ecological and economic metrics.
As discussed in the Section 4(b)(2) Report (NMFS 2015b) and
summarized here, large whales, including the North Atlantic right
whale, currently provide a range of benefits to society. Given the
positive benefits of protecting the physical and biological features
essential to the conservation of the right whale, this protection will
in turn contribute to an increase in the benefits of this species to
society in the future as the species recovers. While we can neither
quantify nor monetize these benefits, we believe they are not
negligible and would be an incremental benefit of this designation.
However, although the features are essential to the conservation of
right whales, critical habitat designation alone will not bring about
the recovery of the species. The benefits of conserving right whales
are, and will continue to be, the result of several laws and
regulations.
We identified in the Section 4(b)(2) Report (NMFS 2015b) both
consumptive (e.g., commercial and recreational fishing) and non-
consumptive (e.g., wildlife viewing) activities that occur in the
critical habitat area. Commercial and recreational fishing are
components of the economy related to the ecosystem services provided by
the resources within the right whale critical habitat areas. The
essential features provide for abundant fish species diversity.
Commercial fishing is the largest revenue generating activity occurring
within the critical habitat area, and protection of the essential
features will contribute to sustaining this activity.
Further, the economic value of right whales can be estimated in
part by such metrics as increased visitation and user enjoyment
measured by the value of whale watching activities.
Education and awareness benefits stem from the critical habitat
designation when non-federal government entities or members of the
general public responsible for, or interested in, North Atlantic right
whale conservation change their behavior or activities when they become
aware of the designation and the importance of the critical habitat
areas and features. Designation of critical habitat raises the public's
awareness that there are special considerations that may need to be
taken within the area. Similarly, state and local governments may be
prompted to carry out programs to complement the critical habitat
designation and benefit the North Atlantic right whale. Those programs
would likely result in additional impacts of the designation. However,
it is impossible to quantify the beneficial effects of the awareness
gained or the secondary impacts from state and local programs resulting
from the critical habitat designation
Exclusions Under Section 4(b)(2)
On the basis of our impacts analysis, we are not excluding any
particular areas from the critical habitat designation. This has not
changed since the proposed rule.
We have analyzed the economic, national security, and other
relevant impacts of designating critical habitat. While we have
utilized the best available information and an approach designed to
avoid underestimating impacts, many of the potential impacts are
speculative and may not occur in the future. Our conservative
identification of potential incremental economic impacts indicates that
any such impacts would be very small, resulting from very few (less
than 18) federal section 7 consultations annually. Furthermore, the
analysis indicates that there is no particular area within the areas
designated as critical habitat where economic impacts would be
particularly high or concentrated. No impacts to national security are
expected. Other relevant impacts include conservation benefits of the
designation, both to the species and to society. Because the features
that form the basis of the critical habitat designation are essential
to the conservation of North Atlantic right whales, the protection of
critical habitat from destruction or adverse modification may at
minimum prevent loss of the benefits currently provided by the species
and may contribute to an increase in the benefits of these species to
society in the future. While we can neither quantify nor monetize the
benefits, we believe they are not negligible and would be an
incremental benefit of this designation. Moreover, our analysis
indicates that all potential future section 7 consultations on impacts
to critical habitat features would also be conducted for the projects'
potential impacts on the species, resulting in at least partial co-
extensive impacts of the designation and the baseline listing of the
species. Therefore, we have concluded that there is no basis to exclude
any particular area from the critical habitat.
Final Determinations and Critical Habitat Designation
We conclude that specific areas meet the definition of critical
habitat, comprising approximately 29,763 nm\2\ of marine habitat within
the geographical area occupied by North Atlantic right whales at the
time of its listing. The two units designated as critical habitat are
in the Gulf of Maine and Georges Bank region (Unit 1) and in waters off
the Southeast U.S coast (Unit 2).
Activities That May Be Affected
ESA section 4(b)(8) requires in any proposed or final regulation to
designate or revise critical habitat an evaluation and brief
description of those activities (whether public or private) that may
adversely modify such habitat or that may be affected by such
designation. A variety of activities may affect the critical habitat
and may be subject to the ESA section 7 consultation process when
carried out, funded, or authorized by a Federal agency. As indicated
above
[[Page 4867]]
and in the Section 4(b)(2) Report, activities (3) through (6) and (9)
are only predicted to result in incremental administrative costs of
consultation. As discussed previously, the activities most likely to be
affected by this critical habitat designation are: (1) Water Quality/
NPDES permitting and regulatory activities (Unit 1), (2) Oil Spill
Response (Unit 1), (3) Maintenance Dredging and Disposal or Dredging
(Unit 2), (4) Construction Permitting (Unit 2), (5) Offshore Liquid
Natural Gas Facilities (Unit 1), (6) Oil and Gas Exploration and
Development (Unit 1), (7) Offshore alternative energy development
activities (Unit 2), (8) Directed copepod fisheries (Unit 1), and (9)
Marine aquaculture (Unit 2). Private entities may also be affected by
this critical habitat designation if a Federal permit is required,
Federal funding is received, or the entity is involved in or receives
benefits from a Federal project. These activities will need to be
evaluated with respect to their potential to destroy or adversely
modify critical habitat. Changes to the actions to avoid destruction or
adverse modification of critical habitat may result in changes to some
activities. Please see the ESA Section 4(b)(2) Report (NMFS 2015b) for
more details and examples of changes that may need to occur in order
for activities to avoid destruction or adverse modification of
designated critical habitat. Questions regarding whether specific
activities will constitute destruction or adverse modification of
critical habitat should be directed to NMFS (see ADDRESSES and FOR
FURTHER INFORMATION CONTACT).
Classification
Regulatory Planning and Review (E.O. 12866)
This rule has been determined to be ``not significant'' under
Executive Order (E.O.) 12866.
National Environmental Policy Act
An environmental analysis as provided for under the National
Environmental Policy Act (NEPA) for critical habitat designations made
pursuant to the ESA is not required. See Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
Regulatory Flexibility Act
We prepared a Final Regulatory Flexibility Analysis (FRFA) pursuant
to section 604 of the Regulatory Flexibility Act (5 U.S.C. 601, et
seq.). The FRFA is found in Appendix B of the ESA Section 4(b)(2)
Report and is available upon request (see ADDRESSES). A summary of the
analysis follows.
This rule is needed in order to comply with the ESA's requirement
to designate critical habitat to the maximum extent prudent and
determinable when species are listed as threatened or endangered, and
to respond to a petition to revise critical habitat for right whales in
the North Atlantic. The objectives of this action are to help conserve
endangered North Atlantic right whales by identifying critical habitat
areas, consistent with the best available scientific information, that
contain the physical and biological features essential to the
conservation of the species and which may require special management
considerations or protection. Once designated, this critical habitat
can be protected through the ESA section 7 consultation process in
which NMFS and federal action agencies review the effects of federal
actions on the survival and recovery of North Atlantic right whales.
Along with the proposed rule, the Initial Regulatory Flexibility
Analysis (IRFA) was published for public comment. None of the public
comments received focused specifically on the IRFA, which was presented
in the draft Section 4(b)(2) Report. However, one comment expressed
concern that we did not evaluate the potential economic impact of the
proposed designation on ferry operators, the majority of whom are
classified as small business or entities according to the commenter. We
did not identify the coastal ferry services as a small business that
might be impacted by this rule, because we concluded that transiting
vessels, whether military, civilian, or commercial do not impact the
essential foraging features of critical habitat. As a result, there
will be no impact to the operation of ferries as a result of the
designation of critical habitat and, as such, no impacts to small
business entities. We did not amend the rule or our analysis as a
result of this comment (see response to comment 64).
Prior to the publication of the proposed rule and the Initial
Regulatory Flexibility Analysis (IRFA), the Chief Counsel of the Small
Business Administration (SBA) provided several comments concerning the
analysis that relate to small entities and the impacts to these
entities. The SBA stated that the Regulatory Flexibility Act requires
an IRFA to identify the number and type of small businesses that may be
affected. Because the potentially affected industries were identified,
SBA recommended that NMFS research whether Census information may be
available that would aid in identifying the number of small businesses
as well as the impact the estimated costs could have on their yearly
income and revenue. To address this comment, we solicited public
comments through the proposed rule on all aspects of the proposed
action including impacts to small businesses. We also directly
consulted with the members of the Atlantic Large Take Reduction Team
(ALWTRT), which includes industry representatives. However, no new
information became available to alter our analysis, and no additional
comments were received. In addition, the available Census data were not
informative such that we could further refine our analysis of the
number and type of small entities that may be affected by this rule.
SBA also stated that there did not appear to be any basis for
concluding in our IRFA that potential project modifications that may be
required to avoid adverse modification of critical habitat are unit
costs such that total project modification costs would be proportional
to the size of the project, and therefore it is not unreasonable to
assume that larger entities would be involved in implementing the
larger projects with proportionally larger project modification costs.
SBA asked us to consider whether the modification costs are similar
regardless of the size of the project, which could lead to
proportionally larger costs for small projects than for larger
projects. To respond in part to this comment, we noted that the
particular statement referenced in the IRFA did not indicate an
absolute conclusion, but instead indicated we were making what can be
considered a `reasonable assumption.' A more detailed response is
presented in our FRFA.
Lastly, SBA asked how the agency came to the conclusion that the
maximum, estimated, annualized, administrative cost to third parties of
$33,696--some portion of which could be borne by small entities--won't
have a significant effect on small entities if we aren't clear on the
relative number of small entities that will be affected. To help
address this question, we clarified in the IRFA and the proposed rule
that this amount represents the cost to NMFS, other federal agencies,
and third parties, combined. The total estimated annualized cost to
third parties is $14,256, and the estimated cost for development of
Biological Assessments (BA), which may be borne at least in part by
third parties, is $19,440. The maximum total the annualized
administrative cost to third parties is thus $33,696, some portion of
which could be borne by small entities.
[[Page 4868]]
The critical habitat rule does not directly apply to any particular
entity, small or large. The rule would operate in conjunction with ESA
section 7(a)(2), which requires that federal agencies ensure, in
consultation with NMFS, that any action they authorize, fund, or carry
out is not likely to jeopardize the continued existence of listed
species or destroy or adversely modify critical habitat. Consultations
may result in economic impacts to federal agencies and proponents of
proposed actions. Those economic impacts may be in the form of
administrative costs of participating in a section 7 consultation and,
if the consultation results in required measures to protect critical
habitat, project modification costs. As discussed in the Section
4(b)(2) Report, which serves as the basis for the FRFA and this
summary, we determined that six types of federal actions that have
occurred in the critical habitat areas in the past could result in
incremental impacts from section 7 consultations related to the
critical habitat. These activities are: Clean Water Act water quality/
NPDES related actions implemented by the EPA; oil spill response
actions by the USCG; dredging and spoil disposal implemented or
permitted by the USACE; marine construction permitting by the USACE,
including restoration and artificial reef placement; offshore energy
regulation by BOEM; and authorization of sand extraction on the Outer
Continental Shelf by BOEM. We project that 188 actions in these
categories will be implemented over the next 10 years. However, we also
determined that these activities would not require consultation solely
due to impacts to critical habitat. Instead, these activities would
require consultation due to impacts to the whale themselves, even in
the absence of designated critical habitat. Additionally, we identified
four categories of activities that have not occurred in the critical
habitat areas in the past but, based on available information and
discussions with action agencies, may occur in the future. If they do
occur, these activities may adversely affect the essential features.
These projected activities are: Oil and gas exploration and development
activities, directed copepod fisheries, offshore alternative energy
development activities, and marine aquaculture. As with past or ongoing
federal activities in the critical habitat areas, these four categories
of projected future actions may trigger consultation because they have
the potential to adversely affect both the essential features and the
whales themselves. However, we could not project the number of actions
in these categories that would occur in the future, due to the lack of
a consultation history or concrete plans by action agencies to
implement these activities. Three categories of future activities were
judged as being likely to have incremental impacts due to critical
habitat impacts that would require project modifications to avoid these
impacts, above and beyond any modifications required to address impacts
to the whales: Oil and gas exploration and development activities (Unit
1), directed copepod fishery (Unit 1), and offshore alternative or
renewable energy activities (Unit 2). Consequently, costs of project
modifications required through section 7 were considered to be
incremental impacts of the designation.
We applied the conservative assumption that all future activities
that may affect the essential features will require formal
consultations. Based on analyses conducted by Industrial Economics,
Inc. (Industrial Economics 2014), we project that each formal
consultation will result in the following additional costs to address
critical habitat impacts: $1,400 in NMFS' costs; $1,600 in action
agency costs; and $880 in third party (e.g., permittee) costs, if
applicable. Administrative costs for the projected number of formal
consultations representing incremental costs of the critical habitat
designation were estimated in the proposed rule to total approximately
$82,296 per year. Based on the addition of 22 consultations that may
occur as a result of the expanded Unit 2 area, the incremental
administrative costs of the critical habitat designation are now
expected to total approximately $95,504 per year. The rule, implemented
through ESA section 7(a)(2) consultations, may indirectly affect small
businesses, small nonprofit organizations, and small governmental
jurisdictions that engage in the 10 categories of activities listed
above, through accrual of administrative costs ($880 per action). Small
entities that engage in water quality/NPDES related actions, oil spill
response activities, oil and gas exploration and development
activities, directed copepod fisheries, offshore alternative energy
development activities, and marine aquaculture activities authorized or
funded by a federal agency that may affect the essential features could
also incur costs in the way of project modifications necessary to avoid
destroying or adversely modifying critical habitat. As we discuss in
the Section 4(b)(2) report (NMFS 2015b), it is not possible for us to
estimate what these costs might be, individually or collectively. The
rule may also indirectly benefit small entities that benefit from or
strive for the protection of the essential features, such as fishing
operations and whale watch companies.
We do know from the consultation record that applicants for federal
permits or funds have included small entities. However, our
consultation tracking database does not track the identity of past
permit recipients or whether the recipients were small entities;
therefore, it does not provide a basis to estimate the number of small
businesses that may be indirectly affected by this rule. It is also
difficult to estimate the number of small entities that may be affected
indirectly by this rule due to a lack of specific information regarding
the nature, scope, and timing of future projects that would undergo
section 7 consultations.
Within Unit 1, the Gulf of Maine-Georges Bank Region, virtually all
current fishing operations in the eastern U.S. are small businesses. We
have determined that there were 483 dealers and 8,094 fishing vessels
in 2014 that meet the definition of small business entities. These
numbers provide an estimate of the total number of vessels and fish
dealers engaged in the harvest of seafood within Unit 1 that may
benefit from this rule.
With regard to a potential copepod fishery, this rule could affect
small businesses if fishermen choose to prosecute a copepod fishery in
the future as virtually all fishing interests in Unit 1 are considered
small businesses under the SBA small business entity size standards.
Currently, there are no proposals to conduct a copepod fishery within
Unit 1; nor have there been any in the past. Therefore, we have no
basis to estimate the number of vessels that would be classified as
small business entities in a copepod fishery.
Other small business entities include the approximately 55-70
whale-watching companies that operate within Unit 1. Neither current
fishing operations nor whale watching companies would be negatively
affected by this action as their activities were not identified as
having the potential to affect the features. There is the potential for
some unquantifiable positive benefit to accrue to these small
businesses as a result of the preservation and maintenance of the
ecosystem benefits associated with the essential foraging features.
In Unit 1, another potentially impacted group of small entities is
small municipalities. A review of the consultation history indicates
that we have consulted with the EPA on small
[[Page 4869]]
governmental jurisdictions' (population less than or equal to 50,000)
municipal wastewater discharges adjacent to the area under
consideration for designation as critical habitat. Based on our review
of past consultation history, we are projecting a total of 21
consultations over the next 10 years involving primarily small
municipalities and NPDES/Water Quality activities. Of the states
bordering Unit 1, EPA administers the discharge permit program only in
Massachusetts and New Hampshire; therefore, consultations with EPA
would be required for municipal discharges only from those two states.
Thus, the number of small municipalities that might be impacted would
be equal to or less than the 21 predicted to be involved in
consultations from all states bordering Unit 1, over the next 10 years.
We have determined that this rule will not likely have an impact on
small business entities engaged in oil and gas exploration and
development or have a disproportionate impact on them compared to large
entities. Currently no specific or planned oil and gas exploration and
development activities for this activity in Unit 1 as it is under an
oil and gas exploration and development moratorium. Furthermore,
business entities involved in offshore oil and gas exploration are
generally large scale business entities as the technological
capabilities to engage in offshore oil and gas development require
large amounts of capital for these types of endeavors.
We have also determined this rule will not have any impact on small
business entities engaged in oil spill response activities related to
the at-sea use of oil dispersants. The SBA small business entity size
standards for environmental remediation services establish an employee
threshold of 500 individuals or less as a small business entity.
Entities that are involved in offshore emergency oil spill response are
generally either governmental agencies and/or large scale business
entities. For example, the USCG is responsible for implementing the Oil
Pollution Act including emergency oil spill responses responding to oil
spills. The type of platform assets (e.g., aerial, vessel) and
technological capabilities necessary to respond to an oil spill in the
marine involvement, specifically the application of oil dispersants,
require large amounts of capital for these types of endeavors.
In Unit 2, the Southeastern calving habitat, the only category of
activity that might potentially impact small entities through
requirements and costs of project modifications necessary to avoid
destroying or adversely modifying critical habitat is offshore energy
development (e.g., wind energy farms). Because there is no past
consultation history or any specific or planned federal proposals for
wind energy facilities in Unit 2, we are unable to estimate the number
of potential projects in this category that may require consultation
due to critical habitat impacts over the next 10 years. Therefore, we
have no basis to estimate the number of small entities that might be
involved.
It is unclear whether small entities would be placed at a
competitive disadvantage compared to large entities as a result of this
rule. Because the costs of many potential project modifications that
may be required to avoid adverse effects to the essential features of
critical habitat are unit costs such that total project modification
costs would be proportional to the size of the project, it is not
unreasonable to assume that larger entities would be involved in
implementing the larger projects with proportionally larger project
modification costs. In addition, though it is not possible to determine
the exact cost of any given project modification resulting from
consultation, the smaller projects most likely to be undertaken by
small entities would likely result in relatively small modification
costs. Finally, many of the modifications identified to reduce the
impact of a project on critical habitat may be a baseline requirement
either due to the ESA listing of the species or under another
regulatory authority, notably the Clean Water Act.
There are no record-keeping or reporting requirements associated
with the rule. Similarly, there are no other compliance requirements in
the rule. There are no professional skills necessary for preparation of
any report or record.
We considered the effect to small businesses throughout our
analysis and, as stated above, there will be no significant economic
impact to small businesses. We have thus not made any changes from the
proposed rule that would minimize significant economic impacts on small
entities. We expect many small entities to benefit from this rule. We
also estimate the average per consultation administrative costs for
third parties, some of which may be small entities, is approximately
$880. It is unlikely that the rule will significantly reduce profits or
revenue for small businesses. Although it is not possible to determine
the exact cost of any given project modification resulting from
consultation, the smaller projects most likely to be undertaken by
small entities would likely result in relatively small modification
costs.
In the IRFA, we considered the alternative of not proposing new
critical habitat for the North Atlantic right whale. We rejected this
alternative because we determined designating critical habitat for the
North Atlantic right whale listed in 2008 was prudent and determinable,
and the ESA requires critical habitat designation at the time of
listing in that circumstance. Also, new scientific information has
become available since the 1994 designation that supports expansion of
the foraging and calving habitat areas.
In the IRFA, we also analyzed the proposed rule's preferred
alternative. This alternative, would have expanded calving habitat to
the north and east compared to the 1994 designation, but it would not
have included a portion of the 1994 designation that extends
approximately 27 nm south of Cape Canaveral, FL. However, in response
to public comments on our proposal, we reviewed the best available
scientific information again. We rejected what we had called the
preferred alternative in the proposed rule, because we believe the
available data show consistent and predictable presence of right whale
mother-calf pairs in this southern area, during the months the habitat
models predict presence of all the essential features. The features
here may require special management considerations or protections for
the same reasons as the rest of Unit 2--because of possible negative
impacts from activities and events of offshore energy development,
large-scale offshore aquaculture operations, and global climate change.
These activities and their potential broad-scale impacts on the
essential features are discussed in detail in the Biological Source
Document (NMFS 2015). For these reasons, we agreed with the commenters
that the southern boundary of the calving area critical habitat should
be moved southward from where we proposed. We updated the economic
impact analysis in the Section 4(b)(2) Report and FRFA to reflect this
change.
Finally, in the IRFA we also considered an alternative in which the
boundaries of both Unit 1 and Unit 2 would be expanded compared to the
proposed rule's preferred alternative. Specifically, under the expanded
alternative, Unit 1 would encompass additional right whale sightings
within the Gulf of Maine-Georges Bank region (particularly inshore
waters along the coasts of Maine, New Hampshire and Massachusetts) and
it would be expanded south and east of the southern boundary of
proposed Unit 1 (south and
[[Page 4870]]
east of Cape Cod). The expanded alternative would also have extended
Unit 2 boundaries south of Cape Canaveral, Florida, similar to the 1994
calving critical habitat. As discussed above, in response to public
comments, we chose in the final rule to extend Unit 2 boundaries south
of Cape Canaveral, Florida, as considered in this alternative. However,
for Unit 1, we rejected this alternative to expand Unit 1 boundaries
closer inshore in the Gulf of Maine-Georges Bank region and south and
east of Cape Cod. We rejected the expansion of Unit 1 boundaries
because, based on the best available scientific information, we
determined that the essential features of foraging habitat were not
present in those areas. As discussed in our FRFA, we considered the
nature and number of additional consultations that may be required to
address impacts to critical habitat given the extended calving area.
The addition of this area did not change our assessment of impacts to
small entities.
Coastal Zone Management Act
We have determined that this action will have no reasonably
foreseeable effects on the coastal uses and resources of Maine, New
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New
Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina,
Georgia and Florida. Upon publication of the proposed rule, these
determinations were submitted for review by the responsible state
agencies under section 307 of the Coastal Zone Management Act. No
comments were received on this Coastal Zone Management Act
determination.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain a new or revised collection of
information. This rule would not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations.
Federalism (E.O. 13132)
Pursuant to the Executive Order on Federalism, E.O. 13132, we
determined that this rule does not have significant Federalism effects
and that a Federalism assessment is not required. However, in keeping
with Department of Commerce policies and consistent with ESA
regulations at 50 CFR 424.16(c)(1)(ii), we requested information from,
and coordinated this critical habitat designation with, appropriate
state resource agencies in Maine, New Hampshire, Massachusetts, Rhode
Island, Connecticut, New York, New Jersey, Delaware, Maryland,
Virginia, North Carolina, South Carolina, Georgia, and Florida.
Energy Supply, Distribution, and Use (E.O. 13211)
On May 18, 2001, the President issued an Executive Order on
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking an action expected to lead to the promulgation
of a final rule or regulation that is a significant regulatory action
under E.O. 12866 and is likely to have a significant adverse effect on
the supply, distribution, or use of energy. We have considered the
potential impacts of this action on the supply, distribution, or use of
energy. The critical habitat designation will not affect the
distribution or use of energy and would not affect supply. This rule
will not have a significant adverse effect on the supply, distribution,
or use of energy. Therefore, we have not prepared a Statement of Energy
Effects. The rationale for this is discussed in the proposed rule (80
FR 9314) and Section 4(b)(2) Report (NMFS 2015b).
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, NMFS makes the
following findings:
(A) This 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. ``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 an enforceable duty on non-Federal government entities or
private parties. The only regulatory effect of a critical habitat
designation is that Federal agencies must ensure that their actions do
not destroy or adversely modify critical habitat under ESA section 7.
Non-Federal entities that receive funding, assistance, or permits from
Federal agencies, or otherwise require approval or authorization from a
Federal agency for an action may be indirectly affected by the
designation of critical habitat. 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
previously to State governments.
(B) 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 (E.O. 12630)
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of property. A taking of property includes
actions that result in physical invasion or occupancy of private
property, and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this rule would not have significant takings implications. A takings
implication assessment is not required. The designation of critical
habitat in the marine environment does not affect private property, and
it affects only Federal agency actions.
References
A complete list of all references cited in this rulemaking can be
found on our Web site at www.greateratlantic.fisheries.noaa.gov/ and is
available upon request from the NMFS Greater Atlantic Regional Office
in Gloucester, Massachusetts (see ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
[[Page 4871]]
Dated: January 21, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, we amend 50 CFR part 226
as follows:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Revise Sec. 226.203 to read as follows:
Sec. 226.203 Critical habitat for North Atlantic right whales
(Eubalaena glacialis).
Critical habitat is designated for North Atlantic right whales as
described in this section. The textual descriptions in paragraph (b) of
this section are the definitive source for determining the critical
habitat boundaries. The maps of the critical habitat units provided in
paragraph (c) of this section are for illustrative purposes only.
(a) Physical and biological features essential to the conservation
of endangered North Atlantic right whales.
(1) Unit 1. The physical and biological features essential to the
conservation of the North Atlantic right whale, which provide foraging
area functions in Unit 1 are: The physical oceanographic conditions and
structures of the Gulf of Maine and Georges Bank region that combine to
distribute and aggregate C. finmarchicus for right whale foraging,
namely prevailing currents and circulation patterns, bathymetric
features (basins, banks, and channels), oceanic fronts, density
gradients, and temperature regimes; low flow velocities in Jordan,
Wilkinson, and Georges Basins that allow diapausing C. finmarchicus to
aggregate passively below the convective layer so that the copepods are
retained in the basins; late stage C. finmarchicus in dense
aggregations in the Gulf of Maine and Georges Bank region; and
diapausing C. finmarchicus in aggregations in the Gulf of Maine and
Georges Bank region.
(2) Unit 2. The physical features essential to the conservation of
the North Atlantic right whale, which provide calving area functions in
Unit 2, are:
(i) Sea surface conditions associated with Force 4 or less on the
Beaufort Scale,
(ii) Sea surface temperatures of 7 [deg]C to 17 [deg]C, and
(iii) Water depths of 6 to 28 meters, where these features
simultaneously co-occur over contiguous areas of at least 231 nmi\2\ of
ocean waters during the months of November through April. When these
features are available, they are selected by right whale cows and
calves in dynamic combinations that are suitable for calving, nursing,
and rearing, and which vary, within the ranges specified, depending on
factors such as weather and age of the calves.
(b) Critical habitat boundaries. Critical habitat includes two
areas (Units) located in the Gulf of Maine and Georges Bank Region
(Unit 1) and off the coast of North Carolina, South Carolina, Georgia
and Florida (Unit 2).
(1) Unit 1. The specific area on which are found the physical and
biological features essential to the conservation of the North Atlantic
right whale include all waters, seaward of the boundary delineated by
the line connecting the geographic coordinates and landmarks identified
herein:
(i) The southern tip of Nauset Beach (Cape Cod) (41[deg]38.39' N./
69[deg]57.32' W.).
(ii) From this point, southwesterly to 41[deg]37.19' N./
69[deg]59.11' W.
(iii) From this point, southward along the eastern shore of South
Monomoy Island to 41[deg]32.76' N./69[deg]59.73' W.
(iv) From this point, southeasterly to 40[deg]50' N./69[deg]12' W.
(v) From this point, east to 40[deg]50' N. 68[deg]50' W.
(vi) From this point, northeasterly to 42[deg]00' N. 67[deg]55' W.
(vii) From this point, east to 42[deg]00' N. 67[deg]30' W.
(viii) From this point, northeast to the intersection of the U.S.-
Canada maritime boundary and 42[deg]10' N.
(ix) From this point, following the U.S.-Canada maritime boundary
north to the intersection of 44[deg]49.727' N./66[deg]57.952' W.; From
this point, moving southwest along the coast of Maine, the specific
area is located seaward of the line connecting the following points:
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
44[deg]49.727' N.......................... 66[deg]57.952' W.
44[deg]49.67' N........................... 66[deg]57.77' W.
44[deg]48.64' N........................... 66[deg]56.43' W.
44[deg]47.36' N........................... 66[deg]59.25' W.
44[deg]45.51' N........................... 67[deg]2.87' W.
44[deg]37.7' N............................ 67[deg]9.75' W.
44[deg]27.77' N........................... 67[deg]32.86' W.
44[deg]25.74' N........................... 67[deg]38.39' W.
44[deg]21.66' N........................... 67[deg]51.78' W.
44[deg]19.08' N........................... 68[deg]2.05' W.
44[deg]13.55' N........................... 68[deg]10.71' W.
44[deg]8.36' N............................ 68[deg]14.75' W.
43[deg]59.36' N........................... 68[deg]37.95' W.
43[deg]59.83' N........................... 68[deg]50.06' W.
43[deg]56.72' N........................... 69[deg]4.89' W.
43[deg]50.28' N........................... 69[deg]18.86' W.
43[deg]48.96' N........................... 69[deg]31.15' W.
43[deg]43.64' N........................... 69[deg]37.58' W.
43[deg]41.44' N........................... 69[deg]45.27' W.
43[deg]36.04' N........................... 70[deg]3.98' W.
43[deg]31.94' N........................... 70[deg]8.68' W.
43[deg]27.63' N........................... 70[deg]17.48' W.
43[deg]20.23' N........................... 70[deg]23.64' W.
43[deg]4.06' N............................ 70[deg]36.70' W.
43[deg]2.93' N............................ 70[deg]41.47' W.
------------------------------------------------------------------------
(x) From this point (43[deg]2.93' N/70[deg]41.47' W.) on the coast
of New Hampshire south of Portsmouth, the boundary of the specific area
follows the coastline southward along the coasts of New Hampshire and
Massachusetts along Cape Cod to Provincetown southward along the
eastern edge of Cape Cod to the southern tip of Nauset Beach (Cape Cod)
(41[deg]38.39' N./69[deg]57.32' W.) with the exception of the area
landward of the lines drawn by connecting the following points:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
42[deg]59.986' N................... 70[deg]44.654' W...... TO Rye Harbor.
42[deg]59.956' N................... 70[deg]44.737' W...... ...... Rye Harbor.
42[deg]53.691' N................... 70[deg]48.516' W...... TO Hampton Harbor.
42[deg]53.516' N................... 70[deg]48.748' W...... ...... Hampton Harbor.
42[deg]49.136' N................... 70[deg]48.242' W...... TO Newburyport Harbor.
42[deg]48.964' N................... 70[deg]48.282' W...... ...... Newburyport Harbor.
42[deg]42.145' N................... 70[deg]46.995' W...... TO Plum Island Sound.
42[deg]41.523' N................... 70[deg]47.356' W...... ...... Plum Island Sound.
42[deg]40.266' N................... 70[deg]43.838' W...... TO Essex Bay.
42[deg]39.778' N................... 70[deg]43.142' W...... ...... Essex Bay.
42[deg]39.645' N................... 70[deg]36.715' W...... TO Rockport Harbor.
42[deg]39.613' N................... 70[deg]36.60' W....... ...... Rockport Harbor.
42[deg]20.665' N................... 70[deg]57.205' W...... TO Boston Harbor.
42[deg]20.009' N................... 70[deg]55.803' W...... ...... Boston Harbor.
42[deg]19.548' N................... 70[deg]55.436' W...... TO Boston Harbor.
42[deg]18.599' N................... 70[deg]52.961' W...... ...... Boston Harbor.
42[deg]15.203' N................... 70[deg]46.324' W...... TO Cohasset Harbor.
[[Page 4872]]
42[deg]15.214' N................... 70[deg]47.352' W...... ...... Cohasset Harbor.
42[deg]12.09' N.................... 70[deg]42.98' W....... TO Scituate Harbor.
42[deg]12.211' N................... 70[deg]43.002 W....... ...... Scituate Harbor.
42[deg]09.724' N................... 70[deg]42.378' W...... TO New Inlet.
42[deg]10.085' N................... 70[deg]42.875' W...... ...... New Inlet.
42[deg]04.64' N.................... 70[deg]38.587' W...... TO Green Harbor.
42[deg]04.583' N................... 70[deg]38.631' W...... ...... Green Harbor.
41[deg]59.686' N................... 70[deg]37.948' W...... TO Duxbury Bay/Plymouth Harbor.
41[deg]58.75' N.................... 70[deg]39.052' W...... ...... Duxbury Bay/Plymouth Harbor.
41[deg]50.395' N................... 70[deg]31.943' W...... TO Ellisville Harbor.
41[deg]50.369' N................... 70[deg]32.145' W...... ...... Ellisville Harbor.
41[deg]45.87' N.................... 70[deg]28.62' W....... TO Sandwich Harbor.
41[deg]45.75' N.................... 70[deg]28.40' W....... ...... Sandwich Harbor.
41[deg]44.93' N.................... 70[deg]25.74' W....... TO Scorton Harbor.
41[deg]44.90' N.................... 70[deg]25.60' W....... ...... Scorton Harbor.
41[deg]44.00' N.................... 70[deg]17.50' W....... TO Barnstable Harbor.
41[deg]44.00' N.................... 70[deg]13.90' W....... ...... Barnstable Harbor.
41[deg]45.53' N.................... 70[deg]09.387' W...... TO Sesuit Harbor.
41[deg]45.523' N................... 70[deg]09.307' W...... ...... Sesuit Harbor.
41[deg]45.546' N................... 70[deg]07.39' W....... TO Quivett Creek.
41[deg]45.551' N................... 70[deg]07.32' W....... ...... Quivett Creek.
41[deg]47.269' N................... 70[deg]01.411' W...... TO Namskaket Creek.
41[deg]47.418' N................... 70[deg]01.306' W...... ...... Namskaket Creek.
41[deg]47.961' N................... 70[deg]0.561' W....... TO Rock Harbor Creek.
41[deg]48.07' N.................... 70[deg]0.514' W....... ...... Rock Harbor Creek.
41[deg]48.932' N................... 70[deg]0.286' W....... TO Boat Meadow River.
41[deg]48.483' N................... 70[deg]0.216' W....... ...... Boat Meadow River.
41[deg]48.777' N................... 70[deg]0.317' W....... TO Herring River.
41[deg]48.983' N................... 70[deg]0.196' W....... ...... Herring River.
41[deg]55.501' N................... 70[deg]03.51' W....... TO Herring River, inside Wellfleet Harbor.
41[deg]55.322' N................... 70[deg]03.191' W...... ...... Herring River, inside Wellfleet Harbor.
41[deg]53.922' N................... 70[deg]01.333' W...... TO Blackfish Creek/Loagy Bay.
41[deg]54.497' N................... 70[deg]01.182' W...... ...... Blackfish Creek/Loagy Bay.
41[deg]55.503' N................... 70[deg]02.07' W....... TO Duck Creek.
41[deg]55.753' N................... 70[deg]02.281' W...... ...... Duck Creek.
41[deg]59.481' N................... 70[deg]04.779' W...... TO Pamet River.
41[deg]59.563' N................... 70[deg]04.718' W...... ...... Pamet River.
42[deg]03.601' N................... 70[deg]14.269' W...... TO Hatches Harbor.
42[deg]03.601' N................... 70[deg]14.416' W...... ...... Hatches Harbor.
41[deg]48.708' N................... 69[deg]56.319' W...... TO Nauset Harbor.
41[deg]48.554' N................... 69[deg]56.238' W...... ...... Nauset Harbor.
41[deg]40.685' N................... 69[deg]56.781' W...... TO Chatham Harbor.
41[deg]40.884' N................... 69[deg]56.28' W....... ...... Chatham Harbor.
----------------------------------------------------------------------------------------------------------------
(xi) In addition, the specific area does not include waters
landward of the 72 COLREGS lines (33 CFR part 80) described below.
(A) Portland Head, ME to Cape Ann, MA.
(1) A line drawn from the northernmost extremity of Farm Point to
Annisquam Harbor Light.
(2) [Reserved]
(B) Cape Ann MA to Marblehead Neck, MA.
(1) A line drawn from Gloucester Harbor Breakwater Light to the
twin towers charted at latitude 42[deg]35.1' N. longitude 70[deg]41.6'
W.
(2) A line drawn from the westernmost extremity of Gales Point to
the easternmost extremity of House Island; thence to Bakers Island
Light; thence to Marblehead Light.
(C) Hull, MA to Race Point, MA.
(1) A line drawn from Canal Breakwater Light 4 south to the
shoreline.
(2) [Reserved]
(2) Unit 2. Unit 2 includes marine waters from Cape Fear, North
Carolina, southward to 28[deg] N . latitude (approximately 31 miles
south of Cape Canaveral, Florida) within the area bounded on the west
by the shoreline and the 72 COLREGS lines, and on the east by rhumb
lines connecting the following points in the order stated from north to
south.
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
33[deg]51' N.............................. at shoreline.
33[deg]42' N.............................. 77[deg]43' W.
33[deg]37' N.............................. 77[deg]47' W.
33[deg]28' N.............................. 78[deg]33' W.
32[deg]59' N.............................. 78[deg]50' W.
32[deg]17' N.............................. 79[deg]53' W.
31[deg]31' N.............................. 80[deg]33' W.
30[deg]43' N.............................. 80[deg]49' W.
30[deg]30' N.............................. 81[deg]01' W.
29[deg]45' N.............................. 81[deg]01' W.
29[deg]15' N.............................. 80[deg]55' W.
29[deg]08' N.............................. 80[deg]51' W.
28[deg]50' N.............................. 80[deg]39' W.
28[deg]38' N.............................. 80[deg]30' W.
28[deg]28' N.............................. 80[deg]26' W.
28[deg]24' N.............................. 80[deg]27' W.
28[deg]21' N.............................. 80[deg]31' W.
28[deg]16' N.............................. 80[deg]31' W.
28[deg]11' N.............................. 80[deg]33' W.
28[deg]00'................................ 80[deg]29' W.
28[deg]00' N.............................. At shoreline.
------------------------------------------------------------------------
(c) Overview maps of the designated critical habitat for the North
Atlantic right whale follow.
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