[Federal Register Volume 84, Number 182 (Thursday, September 19, 2019)]
[Proposed Rules]
[Pages 49214-49235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20166]
[[Page 49214]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 190829-0020]
RIN 0648-BH95
Endangered and Threatened Wildlife and Plants; Proposed
Rulemaking To Revise Critical Habitat for the Southern Resident Killer
Whale Distinct Population Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
revise the critical habitat designation for the Southern Resident
killer whale (Orcinus orca) distinct population segment (DPS) under the
Endangered Species Act (ESA) by designating six new areas along the
U.S. West Coast. Specific new areas proposed along the U.S. West Coast
include 15,626.6 square miles (mi\2\) (40,472.7 square kilometers
(km\2\)) of marine waters between the 6.1-meter (m) (20 feet (ft))
depth contour and the 200-m (656.2 ft) depth contour from the U.S.
international border with Canada south to Point Sur, California. We
solicit comments from the public on all aspects of the proposal,
including information on the economic, national security, and other
relevant impacts of the proposed revision to the critical habitat
designation.
DATES: Comments on this proposed rule and supporting documents must be
received by December 18, 2019. Any scheduled public hearings will be
announced in a separate notice. Requests for additional public hearings
must be made in writing by November 4, 2019.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2014-0041, and on the supporting documents, by either of the
following methods:
Electronic Submission: Submit all electronic public comments via
the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Seattle Branch Chief, Protected
Resources Division, West Coast Region, National Marine Fisheries
Service, 7600 Sand Point Way NE, Building 1, Seattle, WA 98115, Attn:
SRKW Critical Habitat Proposed Rule.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
The draft Biological Report, draft Economic Report, draft ESA
Section 4(b)(2) Report, and complete list of all references cited in
this proposed rule are available on our website
www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html and at the Federal e-Rulemaking
Portal www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2014-0041.
FOR FURTHER INFORMATION CONTACT: Nancy Young, NMFS West Coast Region,
(206) 526-6550; or Lisa Manning, NMFS Office of Protected Resources,
(301) 427-8466.
SUPPLEMENTARY INFORMATION:
Background
NMFS listed the Southern Resident killer whale DPS as endangered
under the ESA in 2005 (70 FR 69903; November 18, 2005). In 2006, NMFS
designated critical habitat for the Southern Resident killer whale DPS
in inland waters of Washington State (71 FR 69054; November 29, 2006).
The designated critical habitat consists of three areas: (1) The Summer
Core Area in Haro Strait and waters around the San Juan Islands, (2)
Puget Sound Area, and (3) the Strait of Juan de Fuca Area. Together,
these areas comprise approximately 2,560 mi\2\ (6,630 km\2\ of marine
habitat.
The final rule designating critical habitat identified three
habitat features essential to the conservation of the DPS: (1) Water
quality to support growth and development; (2) prey species of
sufficient quantity, quality, and availability to support individual
growth, reproduction, and development, as well as overall population
growth; and (3) passage conditions to allow for migration, resting, and
foraging.
On January 21, 2014, we received a petition from the Center for
Biological Diversity (CBD) requesting revisions to the critical habitat
designation for the Southern Resident killer whale DPS. The CBD
requested we revise critical habitat to include ``inhabited marine
waters along the West Coast of the United States that constitute
essential foraging and wintering areas,'' specifically the region
between Cape Flattery, Washington and Point Reyes, California extending
from the coast to a distance of 76 km (47.2 mi) offshore. In addition,
the CBD requested we adopt a fourth essential habitat feature in both
current and expanded critical habitat ``providing for in-water sound
levels that: (1) Do not exceed thresholds that inhibit communication or
foraging activities, (2) do not result in temporary or permanent
hearing loss to whales, and (3) do not result in the abandonment of
critical habitat areas.''
On April 25, 2014, we announced in our 90-day finding that the
petition presented substantial scientific information indicating that a
revision to the current critical habitat designation may be warranted
and requested public comments (79 FR 22933). Due to new information
available regarding habitat use by Southern Resident killer whales, a
revision to critical habitat was warranted, and we announced our
intention to proceed toward a proposed rule in the 12 month finding (80
FR 9682; February 24, 2015). The 12-month finding listed the following
steps to develop a proposed rule for public comment: (1) Complete data
collection and analysis to refine our understanding of the whales'
habitat use and needs; (2) identify areas meeting the definition of
critical habitat; and (3) conduct economic, national security, and
other required analyses to inform consideration of areas for exclusion
under section 4(b)(2) of the ESA.
The CBD filed a complaint in August 2018 with the U. S. District
Court for the Western District of Washington at Seattle seeking an
order from the Court establishing deadlines for NMFS to issue proposed
and final rules to revise the Southern Resident killer whale critical
habitat designation. A court-approved settlement agreement was filed on
April 17, 2019, (Center for Biological Diversity v. National Marine
Fisheries Service, 2:18-cv-01201-RSM (W.D. Wash.)). The settlement
agreement stipulates that NMFS must submit the proposed rule to the
Office of the Federal Register by September 6, 2019.
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This proposed rule describes our proposed revision to the Southern
Resident killer whale critical habitat designation, including
supporting information on Southern Resident killer whale biology,
distribution, and habitat use, and the methods used to develop the
proposed revision to the designation.
Southern Resident Killer Whale Natural History and Ecology
The Southern Resident killer whale DPS was listed as endangered
under the ESA in 2005 (70 FR 69903; November 18, 2005). A Recovery Plan
was completed in 2008 and provides detailed information on the life
history, biology, and threats to the whales and identifies actions
needed to recover the DPS (NMFS 2008). The limiting factors described
in the recovery plan include reduced prey availability and quality,
high levels of contaminants from pollution, and disturbance from
vessels and other sources of anthropogenic sound (e.g., dredging,
drilling, construction, seismic testing, sonar). There is considerable
uncertainty about which threats may be responsible for the decline in
the Southern Resident killer whale population, or which is the most
important to address for recovery. The Recovery Plan lays out an
adaptive management approach and a recovery strategy that addresses
each of the potential threats based on the best available science. The
recovery action outlined within the Recovery Plan identifies numerous
management actions necessary to recover Southern Resident killer
whales, such as salmon restoration efforts (habitat, harvest, and
hatchery management), actions to clean up contaminated sites and
sediments, minimization of continuing inputs of contaminants into the
environment, an evaluation of the need for vessel traffic restrictions,
minimization of the risk of oil spills, stranding response, and
education and outreach (NMFS 2008). The recovery action outline links
management actions to an active research program to fill data gaps and
a monitoring program to assess effectiveness. Feedback from research
and monitoring will provide the information necessary to refine ongoing
actions and develop and prioritize new actions.
NMFS works closely with Canada, the State of Washington, tribes,
and interest groups to conduct research to fill critical information
gaps, implement recovery actions, and develop partnerships to conserve
Southern Resident killer whales. We and partners have been implementing
actions identified in the recovery plan for many years. A comprehensive
review of killer whale research and regulatory actions conducted to
recover the population following the listing can be found in NMFS'
report, ``Southern Resident Killer Whales--10 Years of Research and
Conservation'' (NMFS 2014).
A five-year status review under the ESA completed in December 2016
provides an evaluation of the current status of the population and
progress toward meeting recovery goals, and concluded that the Southern
Resident killer whales should remain listed as endangered (NMFS 2016b).
The 2018 annual census from the Center for Whale Research counted 75
whales remaining in the population as of July 1, 2018. Following the
census, as of July 1, 2019, four whales died or were presumed dead and
two calves were born. Although the Southern Resident killer whale
population size has varied over time, this is a decline from the
highest census count of 98 measured in 1995, and NMFS projects a
downward trend in population growth over the next 50 years (NMFS 2016).
Below we summarize several aspects of natural history of Southern
Resident killer whales and threats as they relate to the habitat needs
of the species. More detailed information can be found in the draft
Biological Report that supports this proposed rule (NMFS 2019a).
Distribution
Killer whales live in highly stable social groupings, or pods, led
by females. The three pods of the Southern Resident DPS, identified as
J, K, and L pods, reside for part of the year in the inland waterways
of Washington State and British Columbia known as the Salish Sea
(Strait of Georgia, Strait of Juan de Fuca, and Puget Sound),
principally during the late spring, summer, and fall (Ford et al. 2000,
Krahn et al. 2002). The whales also visit coastal waters off Washington
and Vancouver Island, especially in the area between Grays Harbor and
the Columbia River (Ford et al. 2000, Hanson et al. 2017), but travel
as far south as central California and as far north as Southeast
Alaska. Although less is known about the whales' movements in coastal
waters, satellite tagging, opportunistic sighting, and acoustic
recording data suggest that Southern Resident killer whales spend
nearly all of their time on the continental shelf, within 34 km (21.1
mi) of shore in water less than 200 m (656.2 ft) deep (Hanson et al.
2017).
Southern Resident killer whales are large mammals requiring
abundant food sources to sustain metabolic processes throughout the
year. Prey availability changes seasonally, and Southern Resident
killer whales appear to depend on different prey species and habitats
throughout the year. The seasonal timing of salmon returns to different
river systems likely influences their movements. Whales may travel
significant distances to locate prey aggregations sufficient to support
their numbers.
Foraging and Prey
Based on fish scales and tissue remains collected from predation
events, fecal sampling, and stomach contents studies, Southern Resident
killer whales are known to consume a variety of fish species (22) and
one species of squid (Ford et al. 1998, Ford et al. 2000, Ford & Ellis
2006, Hanson et al. 2010, Ford et al. 2016). These studies suggest an
overall preference for Chinook salmon (Oncorhynchus tshawytscha),
despite the much lower abundance of Chinook in some areas and during
certain time periods compared to other salmonids. Chum (O. keta), coho
(O. kisutch), and steelhead (O. mykiss) may also be important in the
Southern Resident killer whale diet at particular times and in specific
locations. Factors that might influence this preference include
Chinook's large size, high fat and energy content, and year-round
occurrence in the whales' geographic range. Chinook salmon have the
highest value of total energy content compared to other salmonids
because of their larger body size and higher energy density (O'Neill et
al. 2014). Research suggests that killer whales are capable of
detecting, localizing, and recognizing Chinook salmon through their
ability to distinguish Chinook echo structure as different from other
salmon (Au et al. 2010).
Fewer predation events have been observed and fecal samples
collected from Southern Resident killer whales off the Pacific coast
than in inland waters, but recent data indicate that salmon, and
Chinook salmon in particular, remains an important dietary component
when the whales are in outer coastal waters (Hanson et al. In prep).
Quantitative analyses of diet from fecal samples also indicate a high
proportion of Chinook in the diet of whales feeding in waters off the
coast but a greater diversity of species, of which more tha (Ophiodon
elongatus) and steelhead also comprised a substantial portion of the
diet (Ford et al. 2016, Hanson et al. In prep). Foraging on skate and
halibut (Hippoglossus stenolepis) was also detected (Hanson et al. In
prep). Most of the Chinook prey samples obtained while the whales were
in outer coastal waters were determined to have
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originated from the Columbia River basin, including Lower Columbia
Springs, Middle Columbia Tule, Upper Columbia Summer/Fall. However, the
Chinook stocks included fish from as far north at the Taku River and as
far south as the Central Valley California (Hanson et al. In prep). In
both inland and outer coastal waters, Southern Resident killer whales
generally consumed salmon that were younger than those consumed by
Northern Resident killer whales (Ford & Ellis 2006, Hanson et al. In
prep).
Noren (2011) estimated the daily prey energy requirements for
Southern Resident killer whales, which vary by age class and sex. Noren
(2011) estimated that immature whales between 1 and 6 years of age
require 41,376 to 130,246 kilocalories (kcal) per day, while juveniles
from 7 to 12 years of age need 118,019 to 174,380 kcal per day. Females
older than 12 years require 149,972 to 217,775 kcal per day, while
males over 12 years require 155,885 to 269,458 kcal per day (Noren
2011). Southern Resident killer whales' preferred prey, Chinook salmon,
is larger and has a higher total energy content (average of 13,409 kcal
per fish; O'Neill et al. 2014) when compared to other salmon species
found in the region. It would take roughly 2.7 coho, 3.1 chum, 3.1
sockeye, or 6.4 pink salmon to obtain the same amount of energy as can
be found in one Chinook salmon (O'Neill et al. 2014). However, the
total energy varies significantly among Chinook salmon populations due
to variation in body size and lipid content. For example, mature Puget
Sound Chinook has relatively low mean total energy values (8,941 kcal
per fish), whereas Chinook returning to the Sacramento River has a mean
total energy above 15,000 kcal per fish (O'Neill et al. 2014).
Scarcity of prey is one of the three main threats to Southern
Resident killer whales' survival (NMFS 2008). Salmon have declined
because of land alteration throughout the Pacific Northwest associated
with agriculture, timber harvest practices, the construction of dams,
urbanization, fishery harvest practices, and hatchery operations. Many
of the salmon populations that were once abundant historically have
declined to the point where they have been listed as endangered or
threatened with extinction.
Hearing and Vocalizations
Like all dolphins, killer whales produce numerous types of
vocalizations that are useful in navigation, communication, and
foraging (Dahlheim & Awbrey 1982, Ford 1989, Barrett-Lennard et al.
1996, Ford et al. 2000, Miller 2002, Miller et al. 2004, Saulitis et
al. 2005). Most calls consist of both low- and high-frequency
components (Bain & Dahlheim 1994). Killer whales produce three
categories of sounds: Echolocation clicks, tonal whistles, and pulsed
calls (Ford 1989). Clicks are brief pulses of ultrasonic sound given
singly or more often in series known as click trains. They are used
primarily for navigation and discriminating prey and other objects in
the surrounding environment, but are also commonly heard during social
interactions and may have a communicative function (Barrett-Lennard et
al. 1996). Barrett-Lennard et al. (1996). Southern Residents produce
whistles for both long-range communication (e.g., during foraging and
slow traveling) and social interactions (Riesch et al. 2006). Pulsed
calls are the most common type of vocalization in killer whales and
resemble squeaks, screams, and squawks to the human ear. Three
categories of pulsed calls are distinguishable: Discrete, variable, and
aberrant (Ford 1989). Discrete calls are the predominant sound type
during foraging and traveling, and are used for maintaining acoustic
contact with other group members, especially those out of visual range
(Ford 1989, Ford et al. 2000, Miller 2002). Variable and aberrant calls
are given more frequently after animals join together and interact
socially.
Killer whales hear sounds through the lower jaw and other portions
of the head, which transmit the sound signals to receptor cells in the
middle and inner ears (M[oslash]hl et al. 1999, Au 2002). Killer whales
are considered mid-frequency cetaceans (NMFS 2018). Their hearing
ability extends from approximately 600 hertz (Hz) to 114 kilohertz
(kHz), but is most sensitive in the range of 5-81 kHz (Branstetter et
al. 2017).
Health and Contaminants
Persistent organic pollutants (POP), such as polychlorinated
biphenyls (PCB), polybrominated diphenyl ethers (PBDE), and
dichlorodiphenyltrichloroethane (DDT), are of particular concern to
Southern Resident killer whales. Whales become exposed to POPs through
their prey as well as through nursing, when adult females offload the
contaminants stored in their blubber as it is metabolized to produce
milk, which then carries those contaminants to the offspring. High
contaminant levels exacerbate the effects of reduced prey abundance as
the contaminants become mobilized in the blood stream when stored fat
is metabolized in the absence of food. High concentrations of POPs have
been linked to endocrine, metabolic, and immune disruption, cancer,
decreased reproduction, and increased calf mortality (Reijnders 1986,
de Swart et al. 1996, Schwacke et al. 2002, Ylitalo et al. 2005,
Buckman et al. 2011, Gockel & Mongillo 2013, Lundin et al. 2016,
Mongillo et al. 2016, Hall et al. 2018).
Exposure to petroleum hydrocarbons released into the marine
environment via oil spills and other discharge sources represents a
serious potential health risk for Southern Resident killer whales.
Polycyclic aromatic hydrocarbons, a component of oil (crude and
refined) and motor exhaust, are a group of compounds known to be
carcinogenic and mutagenic (Pashin & Bakhitova 1979). While marine
mammals are generally able to metabolize and excrete limited amounts of
hydrocarbons, acute or chronic exposure poses greater toxicological
risks (Grant & Ross 2002). Oil spills are also potentially destructive
to prey populations and therefore may adversely affect Southern
Resident killer whales by reducing food availability.
Statutory and Regulatory Background for Critical Habitat Designations
The ESA defines critical habitat under section 3(5)(A) as the (1)
specific areas within the geographical area occupied by the species at
the time it is listed, on which are found those physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection; and (2)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary of
Commerce that such areas are essential for the conservation of the
species (16 U.S.C. 1532(5)(A)). Conservation is defined in section 3(3)
of the ESA as to use, and the use of, all methods and procedures which
are necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this Act are no
longer necessary (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA
provides that, except in those circumstances determined by the
Secretary, critical habitat shall not include the entire geographical
area which can be occupied by the threatened or endangered species. Our
regulations provide that critical habitat shall not be designated
within foreign countries or in other areas outside U.S. jurisdiction
(50 CFR 424.12(g)).
Section 4(a)(3)(B) prohibits designating as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense
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(DOD) or designated for its use, that are subject to an Integrated
Natural Resources Management Plan (INRMP) prepared under section 101 of
the Sikes Act (16 U.S.C. 670a), if the Secretary of Commerce determines
in writing that such plan provides a benefit to the species, and its
habitat, for which critical habitat is proposed for designation.
Section 4(b)(2) of the ESA requires us to designate critical
habitat for threatened and endangered species on the basis of the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
Pursuant to this section, the Secretary of Commerce (Secretary) may
exclude any area from critical habitat upon determining that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat. The decision to exclude is
discretionary; in no circumstances is an exclusion of any particular
area required by the ESA (50 CFR 424.19; 81 FR 7226, February 11,
2016). However, the Secretary may not exclude areas if this will result
in the extinction of the species.
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they fund, authorize,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to jeopardize the continued existence of ESA-listed species.
Specifying the geographic location of critical habitat also facilitates
implementation of section 7(a)(1) of the ESA by identifying areas where
Federal agencies can focus their conservation programs and use their
authorities to further the purposes of the ESA. Critical habitat
requirements do not apply to citizens engaged in actions on private
land that do not involve a Federal agency. However, designating
critical habitat can help focus the efforts of other conservation
partners (e.g., State and local governments, individuals, and non-
governmental organizations).
Methods and Criteria Used To Identify Specific Areas Eligible for
Critical Habitat
In the following sections, we describe the relevant definitions and
requirements in the ESA and our implementing regulations and the key
information and criteria used to prepare this proposed revision to the
Southern Resident killer whale critical habitat designation. In
accordance with section 4(b)(2) of the ESA and our implementing
regulations (50 CFR 424.12), this proposed designation is based on the
best scientific information available concerning the species' present
and historical range, habitat, and biology, as well as threats to its
habitat. The information gathered to create this proposed rule has been
collated and analyzed in three supporting documents: A draft Biological
Report (NMFS 2019a); a draft Economic Report (IEc 2018); and a draft
ESA Section 4(b)(2) Report (NMFS 2019b). We used the information and
analyses in these reports to inform our proposal to designate specific
areas within the whales' coastal range as critical habitat.
We followed a five-step process in order to identify the specific
areas eligible for critical habitat designation: (1) Determine the
geographical area occupied by the species at the time of listing, (2)
identify physical or biological habitat features essential to the
conservation of the species, (3) delineate specific areas within the
geographical area occupied by the species on which are found the
physical or biological features, (4) determine whether the feature(s)
in a specific area may require special management considerations or
protections, and (5) determine whether any unoccupied areas are
essential for conservation. Our evaluation and determinations are
described in detail in the draft Biological Report (NMFS 2019a) and are
summarized below.
Beyond the identification and description of the areas, the
critical habitat designation process also include additional steps:
Identify whether any area may be precluded from designation because the
area is subject to an INRMP that we have determined provides a benefit
to the species; and consider the economic, national security, or any
other impacts of designating critical habitat and determine whether to
exercise our discretion to exclude any particular areas. These steps
are described in the draft ESA Section 4(b)(2) Report (NMFS 2019b) and
the draft Economic Report (IEc 2019) and are summarized in later
sections of this proposed rule.
Geographical Area Occupied by the Species
The term ``geographical area occupied by the species'' is defined
as an area that may generally be delineated around a species'
occurrences as determined by the Secretary (i.e., range). Such areas
may include those areas used throughout all or part of the species'
life cycle, even if not used on a regular basis (e.g., migratory
corridors, seasonal habitats, and habitats used periodically, but not
solely by vagrant individuals) (50 CFR 424.02).
Southern Resident killer whale summer inland habitat use was
previously described in the 2006 critical habitat designation (71 FR
69054, November 29, 2006). At that time, few data were available on
Southern Resident distribution and habitat use of coastal and offshore
areas in the Pacific Ocean. While it was known that the whales occupied
these waters for a portion of the year, only 28 sightings of Southern
Resident killer whales were available to describe their coastal range
(Krahn et al. 2004, NMFS 2006). In the 2006 designation, these coastal
areas were included in the identified geographical area occupied by the
species, but the lack of data precluded the agency from designating
specific areas within the coastal range as critical habitat.
Since the 2006 designation, considerable effort has been made to
better understand the range and movements of Southern Resident killer
whales once they leave inland waters. Land- and vessel-based
opportunistic and survey-based visual sightings, satellite tracking,
and passive acoustic research conducted since 2006 have provided an
updated estimate of the whales' coastal range that extends from the
Monterey Bay area in California, north to Chatham Straight in southeast
Alaska. In addition, these data have provided a better understanding of
the whales' use of these waters, allowing us to identify areas that
meet the definition of critical habitat under the ESA.
While the range of Southern Resident killer whales includes coastal
and inland waters of British Columbia, Canada, we cannot designate
critical habitat in areas outside of U.S. jurisdiction (50 CFR
424.12(h)). The Government of Canada has designated critical habitat
for Northern and Southern Resident killer whales in Canadian waters
under its Species at Risk Act. In its 2008 recovery strategy and 2011
amended recovery strategy, the Government of Canada identified the
Canadian side of Haro and Juan de Fuca Straits, as well as Boundary
Pass and adjoining areas in the Strait of Georgia as critical habitat
for Southern Resident killer whales (Fisheries and Oceans Canada 2011).
The Government of Canada recently designated a new critical habitat
area for Northern and Southern Resident killer whales in ocean waters
on the continental shelf off southwestern Vancouver Island,
[[Page 49218]]
including Swiftsure and La P[eacute]rouse Banks (Fisheries and Oceans
Canada 2018). Additional areas are identified as critical habitat for
Northern Resident killer whales only.
Some Alaskan waters are considered to be within the geographic area
occupied by Southern Resident killer whales, but we are not considering
expanding critical habitat there at this time because there is
insufficient information about the whales' distribution, behavior, and
habitat use in these areas. For example, there is only one sighting of
Southern Resident killer whales in southeast Alaska, in Chatham Strait
in 2007. While we can infer that some of the essential habitat
features, such as prey, must be present to support the whales there, we
do not have sufficient data to describe them adequately and identify
specific areas with those features.
Physical and Biological Features Essential to Conservation
The ESA does not specifically define physical or biological
features. However, court decisions and joint NMFS and U.S. Fish and
Wildlife Service (U.S. FWS) regulations at 50 CFR 424.02 (81 FR 7413;
February 11, 2016) provide guidance on how physical or biological
features are expressed. Physical and biological features support the
life-history needs of the species, including but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Based on the best available scientific information regarding
natural history and habitat needs, the following features were
identified in the 2006 critical habitat designation as essential to the
conservation of the species within inland waters of Washington: (1)
Water quality to support growth and development; (2) prey species of
sufficient quantity, quality and availability to support individual
growth, reproduction and development, as well as overall population
growth; and (3) passage conditions to allow for migration, resting, and
foraging. We identified the same three biological and physical features
as essential for the conservation of Southern Resident killer whales
within their coastal range, as described below.
(1) Water quality to support growth and development. Water quality
supports Southern Resident killer whales' ability to forage, grow, and
reproduce free from disease and impairment. Southern Resident killer
whales are highly susceptible to biomagnification of pollutants, such
that chemical pollution is considered one of the prime impediments to
their recovery (NMFS 2008). Water quality is essential to the whales'
conservation, given the whales' present contamination levels, small
population numbers, increased extinction risk caused by any additional
mortalities, and geographic range (and range of their primary prey)
that includes highly populated and industrialized areas. Water quality
is especially important in high-use areas where foraging behaviors
occur and contaminants can enter the food chain. The absence of
contaminants or other agents of a type and/or amount that would inhibit
reproduction, impair immune function, result in mortalities, or
otherwise impede the growth and recovery of the Southern Resident
population is a habitat feature essential for the species' recovery.
Exposure to oil spills also poses additional direct threats as well as
longer-term population level impacts. Therefore, the absence of these
chemicals is of the utmost importance to Southern Resident conservation
and survival.
(2) Prey species of sufficient quantity, quality and availability
to support individual growth, reproduction and development, as well as
overall population growth. Southern Resident killer whales need to
maintain their energy balance all year long to support daily activities
(foraging, traveling, resting, socializing) as well as gestation,
lactation, and growth. Maintaining their energy balance and body
condition is also important because when stored fat is metabolized,
lipophilic contaminants may become more mobilized in the blood stream,
with potentially harmful health effect (Mongillo et al. 2016). Southern
Resident killer whales are top predators that show a strong preference
for salmonids in inland waters, particularly larger, older age class
Chinook (age class of 3 years or older) (Ford & Ellis 2006, Hanson et
al. 2010). Samples collected during observed feeding activities, as
well as the timing and locations of killer whales' high-use areas that
coincide with Chinook fish runs, suggest the whales' preference for
Chinook extends to outer coastal habitat use as well (Hanson et al.
2017, Shelton et al. 2018, Hanson et al. In prep). The diets of whales
in outer coastal areas are more varied than those of inland habitats,
which suggests there may not be sufficient quantity of Chinook along
the coast to sustain them. Habitat conditions should support the
successful growth, recruitment, and sustainability of abundant prey to
support the individual growth, reproduction, and development of
Southern Resident killer whales.
Age, size, and caloric content all affect the quality of prey, as
do contaminants and pollution. The availability of key prey is also
essential to the whales' conservation. Availability of prey along the
coast is likely limited at particular times of year due to the small
run sizes of some important Chinook stocks, as well as the distribution
of preferred adult Chinook that may be relatively spread out prior to
their aggregation when returning to their natal rivers. Availability of
Chinook to the whales may also be impacted by sound from vessels or
other sounds sources if they raise average background noise within the
animal's critical bandwidth to a level that is expected to chronically
or regularly reduce echolocation space (Joy et al., 2019, Veirs et al.
2016), and by competition from other predators including other resident
killer whales, pinnipeds, and fisheries (Chasco et al. 2017).
(3) Passage conditions to allow for migration, resting, and
foraging. Southern Resident killer whales are highly mobile, can cover
large distances, and range over a variety of habitats, including inland
waters and open ocean coastal areas from the Monterey Bay area in
California north to Southeast Alaska. The whales' habitat utilization
is dynamic. Noren and Hauser (2016) evaluated Southern Resident killer
whales' behavior and fine-scale habitat use within the inland critical
habitat Summer Core Area in Haro Strait and waters around the San Juan
Islands and found that the whales engaged in most activity states
(travel, forage, rest, and social behavior) throughout the area, but
that foraging and resting predominantly occurred in some localized
regions. Similar data collection and analysis has not been conducted to
identify geographic variability or hotspots in the whales' activity or
behavioral states in waters along the outer coast. However, analysis of
Southern Resident killer whales' movement patterns on the outer coast
from satellite tag data has revealed preferred depth bands and
distances from shore that suggest potential travel corridors, and
variations in travel speed or duration of occurrence that may indicate
different behavioral states (Hanson et al. 2017).
[[Page 49219]]
Southern Resident killer whales require open waterways that are
free from obstruction (e.g., physical, acoustic) to move within and
migrate between important habitat areas throughout their range, find
prey, and fulfill other life history requirements. As an example of an
``acoustic obstruction,'' killer whale occurrence in the Broughton
Archipelago, Canada declined significantly when acoustic harassment
devices were in use at a salmon farm, and returned to baseline levels
once the devices were no longer used (Morton & Symonds 2002),
indicating the introduction of this chronic noise source into the
environment acted as an acoustic barrier to the whales' use of the
area. The passage feature may be less likely to be impacted in coastal
ocean waters compared to the more geographically constricted inland
waters because the whales may be able to more easily navigate around
potential obstructions in the open ocean, but these passage conditions
are still a feature essential to the whales' conservation and which may
require special management or protection.
We also considered whether to identify sound as a fourth essential
feature. Southern Resident killer whales produce and detect sounds for
communication, navigation, and foraging. An acoustic environment, or
soundscape, in which the whales can detect and interpret sounds is
critical for carrying out these basic life functions. In recognition of
this, we previously considered identifying sound as a potential
essential feature (69 FR 76673; December 22, 2004), but ultimately
concluded that we lacked sufficient information to do so. CBD
petitioned us to again consider identifying in-water sound as an
essential feature of the currently designated critical habitat and any
new designation.
Under the ESA, we separately consider effects of anthropogenic
sound on individual whales (which is scaled up to the listed species
unit) and habitat-related impacts (which is scaled up to the critical
habitat designation). For the former, NMFS has an established framework
and thresholds for considering impacts to marine mammals' hearing
(specifically temporary or permanent hearing loss), as outlined in our
``Technical Guidance for Assessing the Effects of Anthropogenic Sound
on Marine Mammal Hearing'' (NMFS 2018), and NMFS is also working to
refine our guidance on the effects of anthropogenic sound on marine
mammal behavior. We will continue to evaluate and manage direct and
indirect effects of anthropogenic sound on individual animals and the
population relative to the jeopardy standard in ESA section 7 analyses
and through MMPA incidental take authorizations.
Adverse habitat-related effects may stem from the introduction of a
chronic noise source that degrades the value of habitat by interfering
with the sound-reliant animal's ability to gain benefits from that
habitat (i.e., altering the conservation value of the habitat). NMFS
does not currently have a quantifiable methodology to establish
thresholds for determining when chronic noise reaches a level such that
it alters the conservation value in this way. However, we can, and do,
consider these effects qualitatively. For example, NMFS identified
sound-related essential features in the critical habitat designations
for the Cook Inlet beluga whale DPS and Main Hawaiian Islands (MHI)
insular false killer whale DPS. Although sound is identified as an
essential feature for Cook Inlet beluga whale critical habitat and as a
characteristic of an essential feature for MHI insular false killer
whale critical habitat in a non-quantitative manner, the descriptions
of both essential features inform the qualitative assessment of
habitat-related impacts from anthropogenic sound. NMFS has not
identified a sound-related essential feature for other marine mammal
critical habitat designations.
In our experience evaluating effects to Southern resident killer
whale critical habitat in inland waters, we are already able to assess
adverse habitat-related effects of anthropogenic sound by evaluating
impacts to the prey and passage essential features of current critical
habitat for Southern Resident killer whales, and thus we do not
consider it necessary to identify sound as a separate essential
feature. For example, we evaluate whether chronic anthropogenic sound
might alter the conservation value of habitat by reducing the
availability of the whales' prey in a particular foraging area by
reducing the effective echolocation space for the whales to forage, or
creating a barrier that restricts movements through or within an area
necessary for migration, resting, or foraging. We consider the
protections resulting from these analyses to be consistent with those
resulting from the evaluation of sound-related essential features in
the Cook Inlet beluga whale and MHI insular false killer whale
designations. If critical habitat is finalized consistent with this
proposed rule, we would use the same approach for evaluating these
effects in coastal critical habitat, consistent with our existing
practice in inland waters critical habitat.
Specific Areas Within the Geographical Area Occupied by the Species
The three specific areas within the geographic area (range)
occupied by the species identified in the 2006 critical habitat
designation are carried forward unchanged by the proposed critical
habitat revision. We refer to them here as Inland Waters Areas 1-3 to
differentiate them from the six newly identified specific coastal areas
proposed for designation (Coastal Areas 1-6). In the 2006 designation,
a lack of data precluded us from determining whether any specific areas
within the coastal range met the definition of critical habitat.
Research and data collected since then have allowed us to better
characterize the whales' habitat use (NMFS 2019a). These data are now
sufficient to identify specific areas within the whales' coastal range.
The CBD requested that we identify critical habitat in areas of the
Pacific Ocean between Cape Flattery, Washington, and Point Reyes,
California, extending approximately 47 mi (76 km) offshore. This
requested area was based mainly on the extent of the whales' movements
from NMFS' satellite tag data: Tagged animals traveled as far south as
Point Reyes and as far offshore as 47 mi. However, the petition stated
that because NMFS was continuing to analyze data describing the
Southern Resident killer whales' use of coastal and offshore waters,
the petition requested we ``refine this proposal, as necessary, to
include additional inhabited zones or to focus specifically on areas of
concentrated use'' (CBD 2014). To delineate specific areas, we relied
on the satellite tag data but also incorporated information on
sightings, acoustic data, and prey sampling. As a result, our proposed
specific areas differ in their boundaries from the petitioner's
request. For example, there are documented sightings of Southern
Resident killer whales south of Point Reyes, so the boundary of the
proposed critical habitat is farther south than the petitioners
requested.
We identified six specific areas off the U.S. West Coast,
delineated based on their habitat features and use by Southern Resident
killer whales. They encompass most of the whales' U.S. coastal range,
and they vary in size. The ESA and regulations provide the agency
discretion to determine the scale at which specific areas are
identified (50 CFR 424.12; 81 FR 7413, February 11, 2016). We selected
the boundaries
[[Page 49220]]
between areas to reflect the spatial scale of the whales' movements and
behavioral changes (e.g., where tagged whales were primarily traveling
versus observed foraging), as well as to align with some existing
fishery management boundaries (e.g., Pigeon Point and Point Sur are
geographic points used by the Pacific Fishery Management Council in
salmon management; PFMC 2016). Each area contains all three essential
features, although the primary feature of each area is noted below.
More information about each area, including descriptions of the whales'
use of the area based on sighting, satellite tagging, and acoustic
detection data, can be found in the draft Biological Report (NMFS
2019a). Although we consider it to be informative for future section 7
consultations to identify six specific areas of coastal critical
habitat given the differences in the whales' use of the areas, we are
soliciting public comment on whether the areas should be combined into
a single continuous unit (see Public Comments Solicited section below).
Beginning at the westernmost extent of the currently designated
Strait of Juan de Fuca critical habitat area (Inland Waters Area 3),
the new coastal areas span the U.S. West Coast from the U.S.
international border with Canada south to Point Sur, California, which
is just south of the southernmost sightings of Southern Resident killer
whales in Monterey Bay. On January 27, 2008, Southern Resident killer
whales were sighted off Cypress Point, Carmel Bay, just south of
Monterey Bay, traveling south (N. Black, Monterey Bay Whale Watch, Orca
Network sightings archives). Given uncertainty in the exact extent of
the whales' southward movements, we elected to delineate the southern
boundary of the specific area just south of the last sighting (by
approximately 20 mi (32.2 km)) and align the boundary with the existing
salmon management area boundary at Point Sur, California (PFMC 2016).
The inshore (eastern) boundary of the areas is delineated by a
continuous line along the coast at 20-ft (6.1-m) depth relative to mean
high water. This continuous line crosses river mouths and entrances to
semi-enclosed bays and estuaries. This is consistent with the inshore
boundary of the 2006 critical habitat designation in inland waters
(although the inshore boundary of the coastal critical habitat is
delineated relative to the mean high water line instead of extreme high
water, the inshore boundary in inland waters). We do not have data
indicating that the whales frequently occur in waters shallower than
6.1 m. For example, based on data from four satellite-tagged Southern
Resident killer whales, less than 1 percent of the whales' outer
coastal locations were in depths less than 6 m (NWFSC unpubl. data). In
addition, there are no data from sightings or satellite tags to
indicate that Southern Resident killer whales enter river mouths or
semi-enclosed bays and estuaries along the coast, although data
indicate the whales do use the open embayment of Monterey Bay in
California. Thus, based on the available data, we defined the shoreward
boundary of the specific areas as a line along the coast at 6.1 m in
depth relative to the mean high water line.
The offshore (western) boundary of the areas is the 200-m (656.2-
ft) depth contour, or isobath. This was selected because movement data
from satellite-tagged Southern Resident killer whales indicate that
most coastal locations were in water depths of 200 m or less (96.5
percent) and within 34 km (21.1 mi) from shore (95 percent) (Hanson et
al. 2017). Additionally, the limited information available on the
distribution of salmon in offshore waters indicates Southern Resident
killer whale prey (an essential feature of the habitat) is present in
waters of 200 m or less. The two areas off the coast of Washington
share the same northern and southern boundaries but are separated
longitudinally at the 50-m (164.0-ft) isobath, such that Coastal Area 1
ranges from 6.1-50 m depth while Coastal Area 2 ranges from 50-200 m
depth. The 50-m isobath was selected to distinguish the areas because
the majority (42 of 52, or 76.4 percent) of prey samples from observed
Southern Resident killer whale predation events in these two areas were
collected in water depths of 50 m or less, and just over half of the
satellite tag locations in these two areas (54 percent) were in water
depths of 50 m or less (NWFSC unpubl. data; Hanson et al. In prep).
The latitudinal boundaries between the specific coastal areas were
initially selected to coincide with some of the coastal salmon
management area boundaries as defined in the Pacific Salmon Fishery
Management Plan (FMP) and used for the management of salmon harvest
(Chinook and Coho specifically) (PFMC 2016). Although the areas of
highest Southern Resident killer whale occurrence, as indicated by a
duration-of-occurrence model from satellite tag data (Hanson et al.
2017), did not precisely match the salmon management areas, they
generally align with the available information on salmonid and other
fish species that may be prey to Southern Resident killer whales. For
example, the whales' highest use areas occurred in the North of Falcon
fishery management area between Cape Falcon, Oregon and the Canadian
border, and relatively high use occurred within the Klamath Management
Zone. Similar to inland waters, we assume that Southern Resident killer
whales respond to regional and seasonal abundance of salmon,
particularly Chinook runs. We then adjusted some of the boundaries to
better reflect what we know about the whales' use of the areas (e.g.,
areas where foraging has been observed and/or prey samples collected,
versus areas where whales are considered mainly to be traveling
through). We selected Cape Meares, Oregon as the southern boundary of
Areas 1 and 2 instead of Cape Falcon just to the north, because the
Cape Meares boundary encompassed all but one of the observed predation
events and prey sample locations off the Washington and Oregon coasts.
We selected Cape Mendocino, California as the boundary between Areas 4
and 5 instead of Horse Mountain just to the south because the three
predation events observed in California occurred off the Eel River just
north of Cape Mendocino, and that boundary better demarcated the
southern extent of a higher-use area based on the duration-of-
occurrence model of satellite-tagged whale movements (NMFS 2019a).
The six specific coastal areas are:
Coastal Area 1--Coastal Washington/Northern Oregon Inshore Area:
U.S. marine waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S.
international border with Canada south to Cape Meares (45[deg]29'12''
N), between the 6.1-m and 50-m isobath contours. This area covers
1,441.9 mi\2\ (3,734.6 km\2\) and includes waters off Clallam,
Jefferson, Grays Harbor, and Pacific counties in Washington and Clatsop
and Tillamook counties in Oregon. The primary essential feature of this
area is prey.
Coastal Area 2--Coastal Washington/Northern Oregon Offshore Area:
U.S. marine waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S.
international border with Canada south to Cape Meares (45[deg]29'12''
N), between the 50-m and 200-m isobath contours. This area covers
4,617.2 mi\2\ (11,958.6 km\2\), and as with Area 1, includes waters off
Clallam, Jefferson, Grays Harbor, and Pacific counties in
[[Page 49221]]
Washington and Clatsop and Tillamook counties in Oregon. The primary
essential feature of this area is prey.
Coastal Area 3--Central/Southern Oregon Coast Area: U.S. marine
waters from Cape Meares (45[deg]29'12'' N) south to the OR/CA border
(42[deg]00'00'' N), between the 6.1-m and 200-m isobath contours. This
area covers 4,962.6 mi\2\ (12,853.1 km\2\) and includes waters off
Tillamook, Lincoln, Lane, Douglas, Coos, and Curry counties in Oregon.
The primary essential feature of this area is passage.
Coastal Area 4--Northern California Coast Area: U.S. marine waters
from the OR/CA border (42[deg]00'00'' N) south to Cape Mendocino, CA
(40[deg]26'19'' N), between the 6.1-m and 200-m isobath contours. This
area covers 1,606.8 mi\2\ (4,161.5 km\2\) and includes waters off Del
Norte and Humboldt counties in California. The primary essential
feature of this area is prey.
Coastal Specific Area 5--North Central California Coast Area: U.S.
marine waters from Cape Mendocino, CA (40[deg]26'19'' N) south to
Pigeon Point, CA (37[deg]11'00'' N), between the 6.1-m and 200-m
isobath contours. This area covers 3,976.2 mi\2\ (10,298.4 km\2\) and
includes waters off Humboldt, Mendocino, Sonoma, Marin, San Francisco,
and San Mateo counties in California. The primary essential feature of
this area is passage.
Coastal Specific Area 6--Monterey Bay Area: U.S. marine waters from
Pigeon Point, CA (37[deg]11'00'' N) south to Point Sur, CA
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This
area covers 710.1 mi\2\ (1,839.2 km\2\) and includes waters off San
Mateo, Santa Cruz, and Monterey counties in California. The primary
essential feature of this area is prey.
Need for Special Management Considerations or Protection
Joint NMFS and U.S. FWS regulations at 50 CFR 424.02 define special
management considerations or protection to mean methods or procedures
useful in protecting physical and biological features essential to the
conservation of listed species.
Human activities managed under a variety of legal mandates have the
potential to affect the habitat features essential to the conservation
of Southern Resident killer whales, including those that could increase
water contamination and/or chemical exposure, decrease the quantity or
quality of prey, or could inhibit safe, unrestricted passage between
important habitat areas to find prey and fulfill other life history
requirements. Examples of these types of activities include (but are
not limited to): (1) Salmon fisheries and fisheries that take salmon as
bycatch; (2) salmon hatcheries; (3) offshore aquaculture/mariculture;
(4) alternative energy development; (5) oil spills and response; (6)
military activities; (7) vessel traffic; (8) dredging and dredge
material disposal; (9) oil and gas exploration and production; (10)
mineral mining (including sand and gravel mining); (11) geologic
surveys (including seismic surveys); and (12) upstream activities
(including activities contributing to point-source water pollution,
power plant operations, liquefied natural gas terminals, desalinization
plants). We identified these activities based on our ESA section 7
consultation history since 2006 for existing Southern Resident killer
whale critical habitat, along with additional information that has
become available since the original designation. This is not an
exhaustive or complete list of potential activities; rather, these
activities are of primary concern because of their potential effects
that we are aware of at this time and that should be considered in
accordance with section 7 of the ESA when Federal agencies authorize,
fund, or carry out these activities. The ESA section 7 requirement that
Federal agencies ensure their actions are not likely to adversely
modify critical habitat applies not only to actions occurring within
designated critical habitat, but also to actions occurring outside of
designated areas which can impact the features of the critical habitat.
For example, consultation could be required on activities that occur in
waters shallower than 20 ft (6.1 m) or in upstream freshwater locations
if those actions are likely to adversely affect essential habitat
features in designated critical habitat.
Table 1 lists the activities that may affect the essential features
in each of the six specific coastal areas such that the essential
features may require special management or consideration. The draft
Biological Report (NMFS 2019a) and draft Economic Report (IEc 2019)
provide a more detailed description of the potential effects of these
activities on the essential features.
Table 1--Summary of Specific Areas Along the U.S. West Coast
------------------------------------------------------------------------
Specific area Size (mi\2\) Activities
------------------------------------------------------------------------
1--Coastal Washington/Northern 1,441.9 FISH, HAT, SPILL, MIL,
Oregon Inshore Area. VESS, DR, POLL, PP.
2--Coastal Washington/Northern 4,617.2 FISH, HAT, SPILL, MIL,
Oregon Offshore Area. VESS, DR, POLL, PP.
3--Central/Southern Oregon 4,962.6 FISH, HAT, EN, SPILL,
Coast Area. MIL, VESS, DR, GEO,
POLL, PP, LNG.
4--Northern California Coast 1,606.8 FISH, HAT, SPILL, MIL,
Area. VESS, DR, POLL, PP.
5--North Central California 3,976.2 FISH, HAT, SPILL, MIL,
Coast Area. VESS, DR, MIN, POLL,
PP.
6--Monterey Bay Area........... 710.1 FISH, HAT, SPILL, VESS,
DR, POLL, PP, DESAL.
------------------------------------------------------------------------
Note: The size of the area, essential features present, and activities
that may affect the essential features and necessitate the need for
special management considerations or protection within each area are
listed. Some activities occur upstream but may affect features in the
specific area. Activities: FISH = fisheries, HAT = hatcheries, EN =
alternative energy projects, SPILL = oil spills and response, MIL =
military activities, VES = vessel traffic, DR = dredging and dredge
material disposal, MIN = mineral mining, GEO = geologic surveys, POLL
= point-source water pollution, PP = power plants, LNG = LNG
terminals, DESAL = desalinization plants.
Unoccupied Areas
The ESA section 3(5)(A)(ii) definition of critical habitat includes
unoccupied areas, which are defined as specific areas outside the
geographical area occupied by the species at the time it is listed if
such areas are determined to be essential to the conservation of the
species. At the present time, we have not identified additional
specific areas outside the geographic area occupied by Southern
Resident killer whales that may be essential for the conservation of
the species. We considered potential future impacts that climate change
might have on the geographical area occupied by the whales,
particularly with respect to shifts in distribution of their salmon
prey. In accordance with NMFS guidance on the treatment of climate
change in NMFS ESA decisions (NMFS 2016a), we determined that there is
insufficient evidence to identify unoccupied areas based on potential
impacts from climate change.
[[Page 49222]]
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
DOD, or designated for its use, that are subject to an INRMP prepared
under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
of Commerce determines in writing that such a plan provides a benefit
to the species for which critical habitat is proposed for designation.
DOD (Army, Navy, and Air Force) helped us identify military lands
that may overlap with areas under consideration for critical habitat.
The Navy identified two military installations adjacent to these areas,
both of which have INRMPs in place for land-based installation
activities: Pacific Beach Annex, Naval Station Everett, Washington, and
Naval Support Activity (NSA) Monterey, California. Based on our review
of these plans, these two shore-based military areas covered by INRMPs
do not overlap the critical habitat areas, and thus the critical
habitat areas are not ``subject to'' INRMPs or ineligible for
designation (see section III.F of the draft ESA Section 4(b)(2) Report,
NMFS 2019b).
Application of ESA Section 4(b)(2)
The foregoing discussion describes those areas that are eligible
for designation as critical habitat. Specific areas eligible for
designation are not automatically designated as critical habitat. As
described previously, section 4(b)(2) of the ESA requires that the
Secretary consider the economic impact, impact on national security,
and any other relevant impact. The Secretary may exclude an area from
designation if he determines the benefits of exclusion outweigh the
benefits of designation based on the best available scientific and
commercial information. 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 wholly discretionary, exclusion is
not required for any areas (50 CFR 424.19; 81 FR 7226; February 11,
2016).
The first step in conducting an ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of
the ESA defines critical habitat as ``specific areas,'' while section
4(b)(2) of the ESA requires the agency to consider certain factors
before designating any ``particular area.'' The ESA and regulations
provide the agency discretion to determine the scale at which specific
areas (50 CFR 424.12) and particular areas (50 CFR 424.19) are
identified. For this proposed revision to the designation of Southern
Resident killer whale critical habitat, we identified six ``specific''
areas off the coasts of Washington, Oregon, and California, as
described above. For our economic impact analysis, we defined the
``particular areas'' to be equivalent to the ``specific areas.'' This
approach and scale allowed us to most effectively consider the
conservation value of the different areas when balancing conservation
benefit of designation against economic benefits of exclusion. Where we
considered impacts on national security or impacts on tribes, we based
the ``particular areas'' on land ownership or control (e.g., land
controlled by the DOD within which national security impacts may exist,
or Indian lands). This approach and scale allowed us to consider
impacts and benefits associated with management by the military or land
ownership and management by Indian tribes.
Identify and Determine Impacts of Designation
The primary impact of a critical habitat designation stems from the
requirement under section 7(a)(2) of the ESA that Federal agencies
insure that their actions are not likely to result in the destruction
or adverse modification of critical habitat. Determining this impact is
complicated by the fact that section 7(a)(2) contains the associated
requirement that Federal agencies must also insure their actions are
not likely to jeopardize the species' (in this case the DPS') continued
existence. The true impact of this designation is the extent to which
Federal agencies modify their actions to ensure their actions are not
likely to destroy or adversely modify the critical habitat of the DPS,
beyond any modifications they would make because of the DPS' listing
and the jeopardy provision, and the associated increase in consultation
costs. Additional impacts of designation include state and local
protections that may be triggered as a result of the designation.
In determining the impacts of designation, consistent with our
regulations (50 CFR 424.19) and policy (81 FR 7226; February 11, 2016),
we focused on identifying the incremental impacts. We examined what the
state of the world would be with and without the designation of coastal
critical habitat for Southern Resident killer whales. The ``without
critical habitat'' scenario represents the baseline for the analysis.
It includes process requirements and habitat protections already
afforded Southern Resident killer whales under their Federal listing or
under other Federal, state, and local regulations. The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of coastal critical habitat for
Southern Resident killer whales. The primary potential impacts of
critical habitat designation we identified were: (1) The economic costs
associated with additional administrative effort of including a coastal
critical habitat analysis in section 7 consultations for Southern
Resident killer whales, (2) impacts to national security, and (3) the
possible harm to our working relationship with Indian tribes.
Economic Impacts
The draft Economic Report prepared by Industrial Economics,
Incorporated (IEc) sought to determine the impacts on economic
activities due to the designation of critical habitat, above and
beyond--or incremental to--those ``baseline'' impacts due to existing
required or voluntary conservation efforts being undertaken due to
other Federal, State, and local regulations or guidelines (IEc 2019).
Incremental impacts may include the direct costs associated with
additional effort for section 7 consultations (including consultations
that otherwise would have been limited to jeopardy issues, reinitiated
consultations, or new consultations occurring specifically because of
the designation) as well as the direct costs associated with
conservation efforts or project modifications that would not have been
required under the jeopardy standard. Additionally, incremental impacts
may include indirect impacts resulting from reaction to the potential
designation of critical habitat and triggering of additional
requirements under State or local laws intended to protect sensitive
habitat.
To quantify the economic impact of designation, IEc (2019) employed
the following steps:
(1) Identify the baseline of economic activity and the statutes and
regulations that constrain that activity in the absence of the critical
habitat designation in the additional areas being proposed;
(2) Identify the types of activities that are likely to be affected
by critical habitat designation;
(3) Project the projects and activities identified in Step 2 over
space and time based on the best available information on planned
projects, permitting schedules, or average annual levels of activity;
(4) Estimate the costs of administrative effort and, where
applicable, conservation efforts or project modifications recommended
for
[[Page 49223]]
the activity to comply with the ESA's critical habitat provisions;
(5) Apply well-accepted discounting methods to calculate the
present value cost in each year of the analysis and sum over time to
calculate the total present value and annualized impacts; and
(6) Aggregate the costs at the particular area level. (Impacts are
reported at the particular area level; particular areas for the
analysis match the six specific areas.)
The first step in the analysis was to identify the baseline level
of protection already afforded Southern Resident killer whales in the
additional areas being proposed as critical habitat. The baseline for
this analysis is the existing state of regulation prior to the revision
of critical habitat, including the listing of the species under the ESA
(and protections under ESA sections 7, 9, and 10); ESA protections for
listed salmon given that salmon are included as part of the prey
essential feature of critical habitat for the whales; protections from
other co-occurring ESA listings and critical habitat designations, such
as those for the Southern DPS of North American green sturgeon (50 CFR
226.219) and the leatherback sea turtle (50 CFR 226.207); and other
Federal, state and local laws and guidelines, such as the Marine Mammal
Protection Act, Clean Water Act, and state environmental quality laws
(IEc 2019).
In step 2, the NMFS West Coast Region's record of section 7
consultations and NMFS' experience and professional judgment in
conducting section 7 consultations were used to identify Federal
activities that occur within the areas being considered for Southern
Resident killer whale critical habitat and that may affect the critical
habitat features. Activities occurring adjacent to or upstream of those
areas that may affect the water quality and prey availability essential
features within the critical habitat areas were also identified. These
activities included salmon fisheries and other fisheries that have
incidental bycatch of salmon, salmon hatcheries, offshore aquaculture/
mariculture, alternative energy development, oil spills and response,
military activities, vessel traffic, dredging and dredge material
disposal, oil and gas exploration and production, geologic surveys
(including seismic surveys), activities contributing to point-source
water pollution, power plant operations, liquefied natural gas
terminals, and desalinization plants. The draft Economic Report assumes
that future occurrences of these activities within or affecting
critical habitat for the whales will result in consultation. The
identification of these activities and the associated threats are
further discussed in the draft Biological Report (NMFS 2019a) and the
draft Economic Report (IEc 2019).
In steps 3 and 4, the incremental administrative costs of including
analysis of Southern Resident killer whale coastal critical habitat in
future section 7 consultations were estimated. The occurrence of the
projects and activities identified in step 2 and the estimated number
and type of consultations were projected over space and time using the
best available information on planned projects, permitting schedules,
or average annual level of activities from NMFS' consultation history
for 2006-2016 and other information sources (e.g., U.S. Army Corps of
Engineers permit and project data, and interviews with Federal action
agencies). The administrative costs of a given consultation vary
depending on the type (i.e., informal, formal, programmatic) and
specifics of the project, and it may not be possible to predict the
level of effort required for each future consultation. The analysis
accordingly employed estimated average incremental administrative costs
per consultation, which were based on the expected amount of time spent
considering adverse modification as part of future section 7
consultations.
As described in Chapter 2 of the draft Economic Report (IEc 2019),
there are no particular projects or activities for which NMFS considers
it likely that section 7 consultation on coastal critical habitat for
the killer whales would result in different conservation
recommendations than section 7 consultation without coastal critical
habitat. We regularly consult on the types of activities relevant to
this analysis to consider the potential for jeopardy to the listed
killer whales, their listed prey, and other listed species with
overlapping ranges, as well as to consider the potential for adverse
modification to the critical habitat of other listed species--some of
which may have similar essential features (e.g., Southern DPS of North
American green sturgeon, for which the essential features within
nearshore coastal marine critical habitat include, among others, a
migratory corridor within marine habitat and water quality with
acceptably low levels of contaminants)--and we make conservation
recommendations accordingly. We anticipate that it is most likely that
these baseline conservation recommendations would involve measures that
would avoid adverse modification of Southern Resident killer whale
critical habitat because they directly or indirectly address impacts to
the essential features of the whales' critical habitat (water quality,
prey, and passage).
In steps 5 and 6, well-accepted discounting methods were used to
calculate the present value cost in each year of the analysis, summed
over time to calculate the total present value and annualized impact,
and then aggregated at the particular area level. As noted above, for
the economic analysis, ``particular areas'' were defined to be
equivalent to the six ``specific areas'' occupied by Southern Resident
killer whales off the coasts of Washington, Oregon, and California.
However, due to the difficulty in determining precise locations of
future consultations occurring in Areas 1 and 2 off the coast of
Washington (because assignment of the consultation to Area 1 or 2 would
require specific information about the activity such as its latitude/
longitude or depth), the draft Economic Report presents economic
impacts collectively for these two areas.
Additionally, administrative costs of consultations on upstream
activities were not assigned to a particular critical habitat area as
there is no information available to inform the connection between the
particular locations of upstream activities with the downstream effects
on particular critical habitat areas. Accordingly, the incremental
economic impacts associated with consultations on upstream activities
do not reflect the economic impact of designating any given area, but
rather the expanded critical habitat as a whole.
The draft Economic Report (IEc 2019) estimates the total present
value of the quantified incremental impacts to be approximately
$600,000 over the next 10 years, assuming a seven percent discount
rate. Total annualized impacts are estimated to be $68,000. The
evaluation of costs associated with each particular area is complicated
by the fact that many activities and consultations span more than one
area, and because costs to Areas 1 and 2 could not be estimated
separately. However, annualized impacts from projects occurring in only
one area (or two in the case of Areas 1 and 2) ranged from $8,800 for
Areas 1/2 to $1,100 for Area 6. Over 40 percent of estimated impacts
occur upstream of critical habitat areas. The greatest impacts are
associated with dredging and in-water construction and ``other''
activities (see IEc 2019 for more details).
[[Page 49224]]
National Security Impacts
During preparations for the proposed revision to Southern Resident
killer whale critical habitat, we provided DOD (Navy, Army, and Air
Force) with information regarding the areas under consideration for
Southern Resident killer whale critical habitat, and requested they
identify areas they own or control which may overlap with the areas
under consideration. We also asked them to identify any impacts to
national security that might arise from the proposed designation of
critical habitat. In addition, we considered information regarding
potential national security impacts provided by the U.S. Coast Guard
(USCG; Department of Homeland Security) in their response to our 90-day
finding on the petition to revise critical habitat.
The Army did not provide a response. The Air Force stated that it
had not identified any significant concerns with the proposed revision
of Southern Resident killer whale critical habitat to include coastal
waters along the U.S. West Coast. The Navy stated that they conduct
training and testing activities, collectively referred to as ``military
readiness activities,'' within the coastal areas being considered for
designation as critical habitat. Specifically, military readiness
activities occur in the offshore Pacific Northwest Ocean Surface/
Subsurface Operating Area (OPAREA), Warning Area 237 (W-237), and the
Olympic A and B Military Operation Areas (MOA), which are all
considered at-sea components of the Northwest Training Range Complex
(NWTRC), as well as in the Quinault Range Site (QRS), which is a
component of the Keyport Range Complex. The Navy refers to all the at-
sea areas used for training and testing as the Northwest Training and
Testing (NWTT) study area. The Navy believes there would be national
security impacts where specific coastal areas 1 and 2 proposed for
designation overlap with the QRS. The Navy requested exclusion of the
QRS (including its associated surf zone off the coast of Pacific Beach,
Washington) from the proposed critical habitat based on national
security impacts arising from additional mitigation requirements that
have the potential to impact the effectiveness of ongoing and future
testing activities (NMFS 2019b). During the pre-publication inter-
agency review process for this proposed rule, the Navy also requested
exclusion of a 10-km (6.2 mi) buffer around the QRS. The Navy stated
that they used site-specific oceanographic conditions and the best
available science establishing fish injury thresholds (Popper et al.
2014) to determine that sound and energy levels from the largest
explosives that could be used in the QRS may cause injuries to fish
(i.e., prey species) out to 10 km beyond the boundary of the QRS. If
the QRS alone were excluded (without the buffer), the largest
explosives in the QRS may affect the prey feature within proposed
critical habitat (in the buffer area). The Navy argued that there would
be national security impacts if NMFS required additional mitigation
that resulted in the Navy having to halt, reduce in scope, or
geographically/seasonally constrain testing activities to prevent
adverse effects or adverse modification of critical habitat.
The USCG also provided information on potential impacts to national
security and maritime safety. The USCG stated that expanded critical
habitat might impair their ability to safely conduct defense readiness
and additional missions if the designation results in restrictions to
the ability of USCG maritime assets to transit, deploy, train, and/or
conduct gunnery exercises within the critical habitat areas. These
additional missions include emergency response, search and rescue, law
enforcement, conservation activities, and training operations. With
respect to gunnery exercises, they noted that USCG Section/Station/
Maritime Force Protection Unit boats are limited to going a maximum of
10 to 50 mi (16-80.5 km) offshore depending on vessel type, and
requiring them to go over 50 mi would be unsafe and provide unrealistic
training/gunnery scenarios to effectively become proficient with
meeting mission objectives. In general, USCG Sector/Station assets
conduct gunnery exercises with small arms and ammunition, pistols, and
up to .50 caliber machine guns. Major afloat cutters conduct exercises
with small arms and ammunition, in addition to more sophisticated
systems (i.e., 25 millimeter (mm), 57 mm, and 76 mm guns, close-in
weapon systems), but rarely conduct exercises in the areas under
consideration for critical habitat, with the exception of the NWTRC.
Although we have not conducted a section 7 analysis on a particular
proposed action and we are not predetermining any future ESA
conclusions now, as a general matter, and based on the information
currently available, we consider it unlikely that the USCG's routine
operations in support of emergency response, homeland security, law
enforcement, and conservation affect the essential features of Southern
Resident killer whale critical habitat, and as such, we do not expect
designation of critical habitat will have a national security impact on
these activities. Separately, we consider the USCG's concerns regarding
potential national security impacts to their defense readiness
activities to be generally overlapping with those of the Navy, given
the similarities in some of the USCG's activities (i.e., gunnery
exercises involving small- and large-caliber projectiles, similar to
the Navy's surface-to-surface gunnery exercises) and area of operations
(i.e., generally the NWTRC). At this time, the Navy has only been able
to express concerns about national security impacts to testing
activities conducted in the QRS, including underwater explosions
associated with mine countermeasure and neutralization testing
activities. Pending discussions between the Navy and NMFS will help the
Navy determine if there are other national security impacts from the
proposed critical habitat designation. The USCG does not use these
types of explosives in their defense readiness activities, and thus we
consider it unlikely that the USCG would have national security
concerns beyond those conveyed by the Navy.
As documented in our draft ESA Section 4(b)(2) Report (NMFS 2019b),
we assessed several factors to evaluate the potential impacts of
designating critical habitat within the QRS and a 10-km buffer around
it, such as the size and percentage of the QRS and buffer that would be
designated; the importance of the area to the Navy mission and military
readiness; the likelihood that Navy activities would destroy or
adversely modify critical habitat and that NMFS would require project
modification to avoid adverse effects or modification of critical
habitat, thus potentially negatively impacting the effectiveness of the
Navy's training and testing activities); the level of protection
provided to one or more essential features by existing DOD safeguards
(e.g., management or protection already in place); and the likelihood
that other Federal actions may occur in the site that would no longer
be subject to the critical habitat provision if the particular area
were excluded from the designation.
Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from other entities that interact with, or are affected by,
the Federal government. This relationship has given rise to a
[[Page 49225]]
special Federal trust responsibility involving the legal
responsibilities and obligations of the United States toward Indian
tribes and with respect to Indian lands, tribal trust resources, and
the exercise of tribal rights. Pursuant to these authorities, lands
have been retained by Indian tribes or have been set aside for tribal
use. These lands are managed by Indian tribes in accordance with tribal
goals and objectives within the framework of applicable treaties and
laws. Executive Order (E.O.) 13175, Consultation and Coordination with
Indian Tribal Governments, outlines the responsibilities of the Federal
Government in matters affecting tribal interests.
There is a broad array of activities on Indian lands that may
trigger ESA section 7 consultations. Indian lands are those defined in
the Secretarial Order American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act (June 5, 1997),
including: (1) Lands held in trust by the United States for the benefit
of any Indian tribe; (2) land held in trust by the United States for
any Indian tribe or individual subject to restrictions by the United
States against alienation; (3) fee lands, either within or outside the
reservation boundaries, owned by the tribal government; and (4) fee
lands within the reservation boundaries owned by individual Indians.
In developing this proposed rule, we reviewed maps and did not
identify any areas under consideration as coastal critical habitat that
overlap with Indian lands, because the shoreward extent of the areas
under consideration for designation is 6.1 m (20 ft) water depth. Based
on this, we preliminarily found that there were no Indian lands subject
to consideration for possible exclusion. However, our preliminary
assessment indicated that the following federally-recognized tribes (83
FR 4235; January 30, 2018) have lands that may be in close proximity to
areas under consideration for designation as critical habitat for
Southern Resident killer whales, have usual and accustomed (U&A)
fishing areas that overlap with critical habitat areas, or may
otherwise be affected: Confederated Tribes of the Chehalis Reservation,
Hoh Indian Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian
Nation, and Shoalwater Bay Indian Tribe in Washington; Confederated
Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Confederated Tribes
of the Siletz Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae
Heights Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe,
Karuk Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation,
Wiyot Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California.
We contacted each of these tribes to solicit comments regarding
Indian lands that may overlap and may warrant exclusion from critical
habitat for Southern Resident killer whales. We also sought information
from these tribes concerning other tribal activities that may be
affected in areas other than tribal lands (e.g., tribal fisheries in
usual and accustomed coastal marine areas).
We received responses from two tribes in Washington and California.
The tribes were primarily concerned with the potential impact of the
critical habitat designation on tribal fisheries, particularly within
U&A fishing areas located in coastal marine waters. As described in the
draft Economic Report, while it is possible that the critical habitat
designation could result in recommendations for changes in fishery
management, we consider this unlikely, given the existing consideration
of fisheries' impacts on Southern Resident killer whales and their prey
(including ESA-listed salmon) in ESA section 7 consultations in the
jeopardy analysis and the implementation of management strategies and
actions for the conservation and recovery of these species (IEc 2019).
However, we will continue to coordinate and consult with potentially
affected tribes as we move forward with the rulemaking process.
Exclusion of Areas Under Section 4(b)(2) of the ESA
As stated previously, the Secretary may exclude an area from
designation if he determines the benefits of exclusion outweigh the
benefits of designation based on the best available scientific and
commercial information. This discretion is limited, however, in that
the Secretary may not exclude an area from designation if exclusion
will result in the extinction of the species (ESA section 4(b)(2)).
We decided to exercise the discretion delegated to us by the
Secretary to conduct an exclusion analysis and balance the benefits of
designation against the benefits of exclusion. Benefits of critical
habitat designation are those conservation benefits to the species,
while benefits of exclusion result from avoiding the impacts of
designation identified above. Below we describe the benefits of
designation, then further consider and weigh the benefits of
designation and exclusion based on economic and national security
impacts. (As discussed above, we preliminarily found that there were no
Indian lands subject to consideration for possible exclusion). We have
broad discretion as to what factors to consider as benefits of
designation and benefits of exclusion, and what weight to assign to
each factor--nothing in the ESA, its implementing regulations, or our
Policy Regarding Implementation of Section 4(b)(2) of the ESA
(``4(b)(2) Policy'') limits this discretion (50 CFR 424.19; 81 FR 7226,
February 11, 2016). We also relied on a qualitative cost-benefit
analysis, as described in OMB Circular A-4.
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7 of the ESA, requiring all Federal agencies to ensure their
actions are not likely to destroy or adversely modify designated
critical habitat. This is in addition to the requirement that all
Federal agencies ensure their actions are not likely to jeopardize the
continued existence of the species. The revision to the critical
habitat designation is also expected to provide benefits by informing
the entities engaged in section 7 consultations and the general public
about the status of Southern Resident killer whales, including the
coastal areas and features (or habitat) important to whales'
conservation.
Other forms of benefits that may be attributed to the conservation
and recovery of Southern Resident killer whales (although not
specifically attributed to the designation of critical habitat),
include use benefits (e.g., for wildlife viewing), non-use or passive
use benefits (e.g., existence, option, and bequest values), and
ancillary ecosystem service benefits (e.g., water quality improvements
and enhanced habitat conditions for other marine and coastal species).
Some species, including Southern Resident killer whales, also have
significant spiritual and cultural value to particular communities,
such as tribes. Such values are generally not expressed in monetary
terms.
These benefits are not directly comparable to the costs of
designation for purposes of conducting the section 4(b)(2) analysis.
Ideally, benefits and costs should be compared on equal terms in the
same units. However, there is insufficient information regarding the
extent of the benefits and the associated values to monetize all of
these benefits. Because we could not quantify or monetize all of the
benefits of revising the critical habitat designation for Southern
Resident killer whale discussed above, we qualitatively described the
conservation value of the areas to the DPS.
As discussed in Appendix B of the draft ESA Section 4(b)(2) Report
(NMFS
[[Page 49226]]
2019b), we considered categories of information to characterize
Southern Resident killer whales' relative use of the particular areas
and the importance of physical and biological features in the areas.
However, gaps in or limitations of existing data made an evaluation
across all of the areas using any sort of quantitative scoring system
challenging. For example, the proportion of prey samples collected from
each area might be used to characterize the areas' relative importance
for foraging, where a higher proportion of samples might indicate
greater foraging or prey resources. However, nearly all (93 percent) of
the prey samples were collected during field efforts directed by the
locations of satellite-tagged whales, and satellite-tagged whales did
not go into Area 6, so this metric would underestimate the conservation
value of Area 6. (Predation has been observed but not sampled in Area
6; Black et al. 2001). Any spatial bias in NMFS' and partners' ability
to conduct on-water response in particular locations to collect prey
samples would also limit the usefulness of this factor for comparing
relative importance of the critical habitat areas. Another potential
metric we considered was the proportion of confirmed opportunistic
sightings of Southern Resident killer whales observed in the area, or
number of sightings per unit area. However, while opportunistic
sightings data provide information on when and where whales occur along
the coast, they are less useful for informing a relative ranking of the
whales' use of the specific areas due to their spatial bias (e.g.,
sightings may be influenced by locations of population centers or whale
watching operations). Therefore, we determined that the most
appropriate approach was to qualitatively assess the conservation value
of each area using the available data, mindful of the spatial and
temporal gaps and potential biases.
Based on the available information on the whales' use of the areas
(and considering gaps in information), and the physical and biological
features essential to the whales' conservation, we considered the
conservation value of each coastal area to be high. However, we
considered the value of Areas 1 and 2 to be very high relative to the
other coastal areas, given the whales' particularly high use of
portions of the areas, as indicated by models of satellite tag data
(they are the only coastal critical habitat areas with usage in some
locations that is more than two and three standard deviations above the
mean), acoustic data indicating higher rates of detections than would
be expected based on monitoring effort (Hanson et al. 2013), the
documented use by all three pods, year-round use of the areas, and
observations of foraging with a substantial number of prey samples
collected in portions of the areas.
Weighing Economic Impacts
The draft Economic Report (IEc 2019) concluded that costs
attributed to the revision of the Southern Resident killer whale
critical habitat designation are largely administrative in nature and
that a majority of those costs are borne by Federal agencies. Only a
small cost of consultation (total annualized impacts of $7,800,
discounted at seven percent) are estimated to be borne by a small
number (1-8) of non-Federal small entities (businesses or governments).
In accordance with section 4(b)(2) of the ESA, its implementing
regulations (50 CFR 424.19) and the 4(b)(2) Policy (81 FR 7226;
February 11, 2016), in evaluating the exclusion of areas based on
probable economic impacts, we considered the nature of those impacts
and not a particular threshold level. Additionally, we considered the
following factors:
(1) Section 2 of the ESA provides that a purpose of the act is to
provide a means whereby the ecosystems upon which endangered species
and threatened species depend may be conserved.
(2) In listing Southern Resident killer whales under the ESA, we
concluded that the current and threatened destruction or adverse
modification of the species' habitat is likely contributing to
fluctuations in abundance and exacerbating the risk of extinction
naturally faced by a small population (70 FR 69903, November 18, 2005).
We identified contaminants, vessel traffic, and changes in prey
availability as factors that have modified the whales' habitat and
considered them to be threats to the species.
(3) As described above, the six particular areas under
consideration for critical habitat designation are all of high or very
high conservation value.
(4) The economic impacts to Federal agencies and non-Federal
entities of designating each of the six particular areas are small (the
largest annualized impacts are $8,800 in Areas 1 and 2 combined), as is
the annualized economic impact of designating the entire area
($68,000). The potential economic impacts borne by non-federal entities
of designating all six areas are even smaller (total annualized impacts
of $7,800 over the next ten years, discounted at 7 percent), with one
to eight non-federal entities expected to be affected. This reflects
approximately six consultations per year that may involve non-federal
entities, for example, businesses engaged coastal and in-water
construction activities, renewable energy developments, or seismic
surveys.
For these reasons, we conclude that the economic benefit of
excluding any of the particular areas does not outweigh the
conservation benefit of designation. Therefore, none of the areas are
proposed for exclusion based on economic impacts.
Weighing Impacts to National Security and Proposed Exclusion
As described above, we consulted with the DOD regarding the
activities taking place at sites managed by DOD and the potential
impact of designating critical habitat at these sites. A reply from the
Air Force stated: ``At this time the AF has not identified any
significant concerns with the proposed addition of Southern Resident
killer whale critical habitat to coastal waters along the U.S. West
Coast as depicted on the provided map.'' The Navy stated that they
believe there would be national security impacts where critical habitat
coastal areas 1 and 2 overlap the QRS, including its associated surf
zone off the coast of Pacific Beach, Washington, and a 10-km buffer
around it, and requested exclusion of this particular area from
critical habitat. The Navy provided information on testing activities
proposed in the QRS beyond 2020 and into the foreseeable future, and
identified national security concerns regarding potential impacts to
their national mission and ongoing and future Navy testing activities
if critical habitat were designated there or within a 10-km buffer
around the QRS.
We weighed the conservation benefits of designation to Southern
Resident killer whales against the benefits of exclusion, initially for
the Navy's QRS, and later during the pre-publication inter-agency
review period, the combined area of the QRS and a 10-km buffer around
it. We considered various factors relevant to assessing the benefits of
exclusion including:
(1) The size of the DOD site, the percentage of the DOD site that
would be designated (because only a portion of the DOD site is within
critical habitat), and the percentage of the proposed specific area(s)
that overlaps with the DOD site (because the DOD site overlaps with
only a portion of the critical habitat area(s));
(2) The importance of the area to the Navy's national mission
(e.g., frequency/intensity of use, complexity of Navy actions within
it, and
[[Page 49227]]
significance and uniqueness of the site to the overall Navy mission);
(3) The likelihood of a consultation with the DOD in this site;
(4) The likelihood that DOD activities would destroy or adversely
modify critical habitat; based on the DOD's activities at the site, and
that NMFS would require project modifications to reduce or avoid these
impacts;
(5) The level of protection provided to one or more essential
feature by existing DOD safeguards (e.g., management or protection
already in place); and
(6) The likelihood that other Federal actions may occur in the site
that would no longer be subject to the critical habitat provision if
the particular area were excluded from the designation.
Dependent on available information, each of these factors may weigh
either in favor of exclusion of the area or in favor of designation of
the area. We give great weight to the national security and defense
missions (81 FR 7226; February 11, 2016). We weighed this information
against the benefits of designating the site, which was based on the
conservation value rating for the specific area(s) overlapping the DOD
site, as well as more specific information regarding Southern Resident
killer whale use of the DOD site. As documented in the draft ESA
Section 4(b)(2) Report (NMFS 2019b), based on the great weight afforded
military impacts, the unique training in support of military readiness
that occurs within the QRS, and the potential delay in critical
missions in order to complete adverse modification analyses, we found
that the national security impacts tip the scale and outweigh the
limited impact to conservation values in just over one-fourth of the
identified critical habitat Areas 1 and 2 where those areas overlap
with the QRS and a 10-km buffer around it. We determined that the
benefit to national security of excluding this particular area
outweighs the conservation benefit of designation, and exclusion of the
area would not result in extinction of the species (DPS). We therefore
propose excluding the QRS and a 10-km buffer around it from the
critical habitat designation. The total area proposed for exclusion is
1,687.9 mi\2\ (4,371.5 km\2\) or 9.7 percent of potential coastal
critical habitat.
Proposed Critical Habitat Designation
We are proposing to designate approximately 15,626.6 mi\2\
(40,472.7 km\2\) of marine habitat within the area occupied by Southern
Resident killer whales along the coasts of Washington, Oregon, and
California. Combined with the currently designated critical habitat in
inland waters of Washington (2,560 mi\2\ (6,630 km\2\)), the total
designation would comprise approximately 18,186.5 mi\2\ (47,102.7
km\2\). In both the currently designated and proposed new critical
habitat, areas with water less than 20 ft (6.1 m) deep are not included
as critical habitat. As described in the preamble to the final rule
designating critical habitat in inland waters (71 FR 69054; November
29, 2006), due to a lack of bathymetry data, we were not able to
subtract the shallow areas from the estimate of the inland critical
habitat area, so the estimated area of this portion of the critical
habitat is an overestimate. However, high-quality shoreline and
bathymetry data were available for the outer coastal areas, so we were
able to interpolate a 20-ft depth contour as the inshore boundary and
include only the areas proposed for designation in the coastal area
calculations. However, the coastal shoreline product we used to
delineate the coastal areas, NOAA's Continually Updated Shoreline
Product, uses mean high water as the vertical datum (the surface of
zero elevation to which heights are referenced), so the inshore
boundary of coastal critical habitat is 20 ft of water depth relative
to mean high water. This is in contrast to the inshore boundary for
critical habitat in inland waters, which uses 20 ft water depth
relative to extreme high water.
The proposed areas are occupied and contain physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The Navy's
QRS and a 10-km buffer around it is not proposed for designation (and
is not included in the area calculations above) because we determined
the benefits to national security of exclusion (that is, avoiding the
impact that would result from designation) outweigh the benefits of
designation. We determined that the economic benefits of excluding any
of the areas do not outweigh the benefits of designation, and we are
therefore not proposing to exclude any areas based on economic impacts.
Section 4(b)(2) does not allow the agency to exclude areas if exclusion
will result in extinction of the species. We are proposing to exclude
only a small percentage of the whales' habitat (9.7 percent of coastal
habitat; 8.0 percent of coastal and inland habitat combined) because of
impacts to national security. Given this small percentage, we conclude
that the exclusion of these areas will not result in extinction of the
Southern Resident killer whale DPS. No unoccupied areas are currently
proposed for designation.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded or carried out by
the agency (agency action) is not likely to jeopardize the continued
existence of any threatened or endangered species or destroy or
adversely modify designated critical habitat. When a species is listed
or critical habitat is designated, Federal agencies must consult with
us on any agency action that may affect the listed species or its
critical habitat. During the consultation, we evaluate the agency
action to determine whether the action may adversely affect listed
species or critical habitat and issues our finding in a biological
opinion. If we conclude in the biological opinion that the agency
action would likely result in the destruction or adverse modification
of critical habitat, we would also recommend any reasonable and prudent
alternatives to the action. Reasonable and prudent alternatives are
defined in 50 CFR 402.02 as alternative actions identified during
formal consultation that can be implemented in a manner consistent with
the intended purpose of the action, that are consistent with the scope
of the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that would avoid the
destruction or adverse modification of critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances
where: (1) Critical habitat is subsequently designated; or (2) new
information or changes to the action may result in effects to critical
habitat not previously considered in the biological opinion.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with NMFS on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat. Activities subject to the ESA section 7 consultation
process include activities on Federal lands, as well as activities
requiring a permit or other authorization from a Federal agency (e.g.,
a section 10(a)(1)(B) permit from NMFS), or some other Federal action,
including funding (e.g., Federal Highway Administration (FHA) or
Federal Emergency Management Agency (FEMA) funding). ESA section 7
consultation would not be required for Federal actions that do
[[Page 49228]]
not affect listed species or critical habitat, and would not be
required for actions on non-Federal and private lands that are not
carried out, funded, or authorized by a Federal agency.
Activities That May Be Affected
ESA section 4(b)(8) requires, to the maximum extent practicable, in
any proposed regulation to designate critical habitat, an evaluation
and brief description of those activities (whether public or private)
that may adversely modify such habitat or that may be affected by such
designation. A wide variety of activities may affect the proposed
critical habitat and may be subject to the ESA section 7 consultation
processes when carried out, funded, or authorized by a Federal agency.
These include: (1) Salmon fisheries and other fisheries that have
incidental bycatch of salmon; (2) salmon hatcheries; (3) offshore
aquaculture/mariculture; (4) alternative energy development; (5) oil
spills and response; (6) military activities; (7) vessel traffic; (8)
dredging and dredge material disposal; (9) oil and gas exploration and
production; (10) mineral mining (including sand and gravel mining);
(11) geologic surveys (including seismic surveys); and (12) upstream
activities (including activities contributing to point-source water
pollution, power plant operations, liquefied natural gas terminals,
desalinization plants).
Private or non-Federal entities may also be affected by the
proposed critical habitat designation if a Federal permit is required,
Federal funding is received, or the entity is involved in or receives
benefits from a Federal project. These activities would need to be
evaluated with respect to their potential to destroy or adversely
modify Southern Resident killer whale critical habitat.
Questions regarding whether specific activities would constitute
destruction or adverse modification of critical habitat should be
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
As noted in the Public Comments Solicited section below, NMFS also
requests information on the types of non-Federal activities that may be
affected by this rulemaking.
Technical Changes to the Southern Resident Killer Whale Critical
Habitat Regulations
In addition to proposing the designation of coastal critical
habitat, we propose to make three technical changes to the existing
Southern Resident killer whale critical habitat regulations in 50 CFR
226.206. First, the introductory paragraph of the existing regulations
states that the textual descriptions of critical habitat are the
definitive source for determining the critical habitat boundaries and
the overview map is provided for general guidance purposes only. In
2012, NMFS and the U.S. FWS revised the ESA implementing regulations to
specify that the boundaries of critical habitat as mapped or otherwise
described in the regulations will be the official delineation of the
designation (77 FR 25611; May 1, 2012). To comply with this revision,
we propose to delete the second and third sentences of the introductory
paragraph of 50 CFR 226.206, and replace them with the following
sentence: ``The maps, clarified by the textual descriptions in this
section, are the definitive source for determining the critical habitat
boundaries.''
Second, the existing regulations specify primary constituent
elements (PCE) essential for conservation of Southern Resident killer
whales. In 2016, NMFS and the U.S. FWS revised the ESA implementing
regulations to remove the term PCE and replaced it with the statutory
term ``physical or biological features'' (81 FR 7226; February 11,
2016). These are also referred to as ``essential features.'' To comply
with this revision, we propose to revise 50 CFR 226.206(c) by replacing
the term PCE with the term ``essential features.''
Third, we propose to move the map(s) to the end of the section to
accommodate the additional text necessary to describe the added,
proposed critical habitat areas.
Public Comments Solicited
We solicit comments or suggestions from the public, other concerned
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning
the proposed designations and exclusions as well as the documents
supporting this proposed rulemaking. We are particularly interested in
comments and information in the following areas: (1) Specific
information describing the distribution and habitat use of Southern
Resident killer whales in coastal waters, including southeast Alaska or
shallow areas with less than 20 ft (6.1 m) of water; (2) information on
the identification, location, and the quality of physical or biological
features that may be essential to the conservation of the species,
including information on sound as a feature; (3) the boundaries of the
specific areas and whether they should be combined into a single unit;
(4) information regarding potential benefits of designating any
particular area as critical habitat, including information on the types
of Federal actions that may affect the area's physical and biological
features; (5) information regarding potential impacts of designating
any particular area, including the types of Federal actions that may
trigger an ESA section 7 consultation and the possible modifications
that may be required of those activities; (6) current or planned
activities in the areas proposed as critical habitat, including both
Federal and non-Federal activities, and costs of potential
modifications to those activities due to critical habitat designation;
(7) any foreseeable economic, national security, or other relevant
impact resulting from the proposed designations; (8) potential for
impacts to small businesses and government entities; (9) information
pertaining to administrative costs of participating in consultation or,
more specifically, related to considering critical habitat as part of
section 7 consultations; (10) foreseeable project delays resulting from
the proposed designation and the associated costs of delays; (11) any
specific impacts to Indian tribes or other relevant tribal issues; (12)
whether the data used in the economic analysis needs to be updated; and
(13) whether there are additional particular areas that should be
considered for exclusion under ESA section 4(b)(2) (e.g., a particular
area encompassing the San Francisco Traffic Separation Scheme).
You may submit your comments and materials concerning this proposal
by any one of several methods (see ADDRESSES). The proposed rule and
supporting documentation can be found on our website at
www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html or the Federal E-Rulemaking Portal
at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041. In
preparing the final rule, we will consider all comments pertaining to
the revision to the designations received during the comment period.
Accordingly, the final decision may differ from this proposed rule.
Public Hearings
Agency regulations at 50 CFR 424.16(c)(3) require the Secretary to
promptly hold at least one public hearing if any person requests one
within 45 days of publication of a proposed rule to designate critical
habitat. Public hearings provide the opportunity for interested
individuals and parties to give comments, exchange information and
opinions, and engage in
[[Page 49229]]
a constructive dialogue concerning this proposed rule. We encourage the
public's involvement in such ESA matters. Any scheduled public hearings
will be announced in a separate notice. Requests for additional public
hearings must be made in writing (see ADDRESSES) by November 4, 2019.
References Cited
A complete list of all references cited in this proposed rule can
be found on our website at www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html or
the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041, and is available upon request
from the NMFS West Coast Region office in Seattle, Washington (see
ADDRESSES).
Classification
Executive Order 12630, Takings
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of property. A taking of property includes
actions that result in physical invasion or occupancy of private
property, and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
the proposed rule does not have significant takings implications. A
takings implication assessment is not required. The designation of
critical habitat affects only Federal agency actions (i.e., those
actions authorized, funded, or carried out by Federal agencies).
Therefore, the critical habitat designation does not affect landowner
actions that do not require Federal funding or permits. This
designation would not increase or decrease the current restrictions on
private property concerning take of Southern Resident killer whales,
nor do we expect the final critical habitat designation to impose
substantial additional burdens on land use or substantially affect
property values. Additionally, a final critical habitat designation
would not preclude the development of Habitat Conservation Plans and
issuance of incidental take permits for non-Federal actions. Owners of
areas included within the proposed critical habitat designation would
continue to have the opportunity to use their property in ways
consistent with the survival of listed Southern Resident killer whales.
Executive Order 12866, Regulatory Planning and Review, and Executive
Order 13771, Reducing Regulation and Controlling Regulatory Costs
OMB has determined that this proposed rule is significant for
purposes of E.O. 12866 review. A draft Economic Report (IEc 2019) and
draft ESA Section 4(b)(2) Report (NMFS 2019b) have been prepared to
support the exclusion process under section 4(b)(2) of the ESA and our
consideration of alternatives to this rulemaking as required under E.O.
12866. To review these documents, see the ADDRESSES section above.
We have estimated the costs for this proposed rule. Economic
impacts associated with this rule stem from the ESA's requirement that
Federal agencies ensure any action authorized, funded, or carried out
will not likely jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification
of critical habitat. In practice, this requires Federal agencies to
consult with NMFS whenever they propose an action that may affect a
listed species or its designated critical habitat, and then to modify
any action that could jeopardize the species or adversely affect
critical habitat. Thus, there are two main categories of costs:
Administrative costs associated with completing consultations, and
project modification costs. Costs associated with the ESA's requirement
to avoid jeopardizing the continued existence of a listed species are
not attributable to this rule, as that requirement exists in the
absence of the critical habitat designation.
The draft Economic Report (IEc 2019) identifies the total estimated
present value of the quantified impacts above current consultation
effort to be approximately $600,000 over the next 10 years. Assuming a
7 percent discount rate on an annualized basis, the impacts are
estimated to be $68,000 per year. These total impacts include the
additional administrative efforts necessary to consider critical
habitat in section 7 consultations. Coast-wide, economic impacts are
expected to be small and largely associated with the administrative
costs borne by Federal agencies. While there are expected beneficial
economic impacts of designating critical habitat, there are
insufficient data available to monetize those impacts (see Benefits of
Designation section).
This proposed rulemaking is expected to be regulatory under E.O.
13771.
Executive Order 12988, Civil Justice Reform
In accordance with E.O. 12988, we have determined that this
proposed rule does not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the E.O. We are proposing
to designate critical habitat in accordance with the provisions of the
ESA. This proposed rule uses standard property descriptions and
identifies the essential features within the designated areas to assist
the public in understanding the habitat needs of Southern Resident
killer whales.
Executive Order 13132, Federalism
The E.O. on Federalism, Executive Order 13132, requires agencies to
take into account any federalism impacts of regulations under
development. It includes specific consultation directives for
situations in which a regulation may preempt state law or impose
substantial direct compliance costs on state and local governments
(unless required by statute). Pursuant to E.O. 13132, we determined
that this proposed 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 will request information for
this proposed rule from the appropriate state resources agencies in
Washington, Oregon, and California. The proposed designation may have
some benefit to state and local resource agencies in that the proposed
rule more clearly defines the physical and biological features
essential to the conservation of the species and the coastal areas in
which those features are found. While this designation would not alter
where and what non-Federally sponsored activities may occur, it may
assist local governments in long-range planning (rather than waiting
for case-by-case ESA section 7 consultations to occur).
Where state and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests only on the Federal agency.
[[Page 49230]]
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
The long-standing and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and with respect
to Indian lands, tribal trust resources, and the exercise of tribal
rights. Pursuant to these authorities, lands have been retained by
Indian Tribes or have been set aside for tribal use. These lands are
managed by Indian Tribes in accordance with tribal goals and objectives
within the framework of applicable treaties and laws. E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests.
There is a broad array of activities on Indian lands that may
trigger ESA section 7 consultations. In developing this proposed rule
to revise Southern Resident killer whale critical habitat, we reviewed
maps and did not identify any areas under consideration for critical
habitat along the coast that overlap with Indian lands, because the
shoreward extent of the areas under consideration for designation is
6.1 m (20 ft) water depth. Based on this, we preliminarily found that
there were no Indian lands subject to consideration for possible
exclusion. However, as discussed above, our preliminary assessment
indicated that some federally-recognized tribes (83 FR 4235; January
30, 2018) have lands that may be in close proximity to areas under
consideration for designation as critical habitat for Southern Resident
killer whales, have usual and accustomed fishing areas that overlap
with critical habitat areas, or may otherwise be affected. These
include: Confederated Tribes of the Chehalis Reservation, Hoh Indian
Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian Nation, and
Shoalwater Bay Indian Tribe in Washington; Confederated Tribes of Coos,
Lower Umpqua, and Siuslaw Indians, Confederated Tribes of the Siletz
Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae Heights
Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, Karuk
Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation, Wiyot
Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California.
As discussed above, we contacted each of these tribes to solicit
comments regarding Indian lands that may overlap and may warrant
exclusion from critical habitat for Southern Resident killer whales. We
also sought information from these tribes concerning other tribal
activities that may be affected in areas other than tribal lands (e.g.,
tribal fisheries in usual and accustomed coastal marine areas). We will
continue to consult with affected tribes regarding this proposal to
designate critical habitat.
Executive Order 13211, Energy Supply, Distribution, and Use
E.O. 13211 requires agencies to prepare a Statement of Energy
Effects when undertaking a ``significant energy action.'' According to
Executive Order 13211, ``significant energy action'' means any action
by an agency that is expected to lead to the promulgation of a final
rule or regulation that is a significant regulatory action under
Executive Order 12866 and is likely to have a significant adverse
effect on the supply, distribution, or use of energy. We have
considered the potential impacts of this action on the supply,
distribution, or use of energy and find the revision to the designation
of critical habitat will not have impacts that exceed the thresholds
identified in OMB's memorandum M-01-27, Guidance for Implementing E.O.
13211 (See IEc 2019).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). We have prepared an
initial regulatory flexibility analysis (IRFA), which is part of the
draft Economic Report (IEc 2019). This document is available upon
request and online (see ADDRESSES). The analysis is summarized below.
NMFS listed the Southern Resident killer whale Distinct Population
Segment as endangered under the ESA on November 18, 2005 (70 FR 69903)
and on November 29, 2006 issued a final rule designating critical
habitat for the whales in inland waters of Washington (71 FR 69054).
NMFS is now proposing to expand the critical habitat designating by
adding waters along the Pacific Coast between Cape Flattery, Washington
and Point Sur, California. The objective of the rule is to utilize the
best scientific and commercial information available to expand critical
habitat for the Southern Resident killer whale to best meet the
conservation needs of the species in order to meet recovery goals.
Section 4(a)(3)(A)(ii) of the ESA allows NMFS to revise designations to
critical habitat as appropriate and is the legal basis for this rule.
This proposed rule will not impose any recordkeeping or reporting
requirements on small entities and will not duplicate, overlap, or
conflict with any other laws or regulations.
The expansion of critical habitat for the Southern Resident killer
whales is expected to have a limited economic impact, on the order of
$68,000 annualized over 10 years. The nature of these costs are
administrative efforts to consider potential for adverse modification
part of future ESA section 7 consultations. Primarily, consultations
are between NMFS and Federal action agencies to evaluate the potential
for projects and activities to result in adverse modification of
critical habitat. Therefore, most incremental impacts are borne by NMFS
and other Federal agencies and not by private entities or small
governmental jurisdictions. However, some consultations may include
third parties (e.g., project proponents or landowners) that may be
small entities. These third parties may bear some portion of the
administrative consultation costs.
Of the activities for which future consultations are forecast and
expected to result in incremental economic impacts due to the expanded
critical habitat designation, only a subset involve third parties that
may be small entities. Specifically, consultations on renewable energy
development, dredging and in-water construction, and seismic surveying
may involve small entities, including small businesses or governments.
The analysis anticipates approximately six consultations on in-water
and coastal construction activities per year, 0.5 consultations on
renewable energy development, and 0.1 consultations on seismic surveys.
While the activity forecast includes less than one consultation
annually on renewable energy development and seismic surveying, the
IRFA evaluates the impacts associated with one consultation on each of
these activities to reflect a high-end estimate for a single year.
Administrative costs of
[[Page 49231]]
consultations on fisheries, military activities, and hatchery
operations are unlikely to involve third parties beyond NMFS and the
Federal action agency.
For the consultations that may involve third parties, it is not
known whether the third parties bearing administrative costs are likely
to be large or small entities. The analysis therefore conservatively
assumes all third parties involved in these consultations are small
entities. The number of small entities bearing these incremental
administrative costs in a given year is uncertain. To provide
information on the range of potential entities affected and the
potential costs borne by these entities, the analysis presents two
scenarios reflecting the extremes:
(1) Scenario 1 identifies the maximum number of future
consultations involving small entities and assumes that each
consultation involves one unique small entity. We estimate the maximum
number of future consultations, and accordingly number of potentially
affected entities, to be eight. This represents the total number of
annual consultations that occur across all critical habitat units
involved with in-water construction, renewable energy development, and
seismic surveying. Scenario 1 accordingly provides a high-end estimate
of the number of potentially affected small entities (assuming each
consultation involves a unique third party and all third parties are
small entities), and a low-end estimate of the potential effect in
terms of the economic effects (i.e., percent of annual revenues) for
each entity (total third party costs of the consultations are divided
across the high-end number of small entities). This scenario may
overstate the number of small entities likely to be affected by the
rule and may understate the potential impact per entity. Under Scenario
1, we estimate that eight small entities have the potential to bear an
impact of $890 to $1,600 per entity.
(2) Scenario 2 assumes all future costs to an industry are borne by
a single small entity within that industry. This scenario may
understate the number of small entities affected and overstate the per-
entity impacts. As such, this scenario arrives at a low-end estimate of
potentially affected entities and a high-end estimate of potential
economic cost effects. Under this scenario, one small entity in the in-
water construction industry would bear costs of $5,200.
Because the analysis assumes a maximum of one consultation on both
renewable energy development and seismic surveying in a single year,
the cost estimates for these activities are identical under both
scenarios ($1,100 for one small entity in the renewable energy
development industry and $1,600 for one small entity in the seismic
survey industry). However, for in-water construction and dredging,
these scenarios reflect a range of potentially affected entities and
associated revenue effects. The actual number of small in-water
construction entities affected, and the per-entity revenue effects are
likely to be somewhere in the middle. In other words, some subset
greater than one and less than 6 of the in-water construction small
entities may participate in the section 7 consultations and bear the
associated impacts.
Under both scenarios, potential costs borne by small entities are
expected to be minor. Ultimately, up to eight small entities per year
may bear costs associated with participation in consultation regarding
the proposed expansion of critical habitat for Southern Resident killer
whale. The total annualized administrative costs that may be borne by
these small entities (businesses or governments) is $7,800 (discounted
at 7 percent). We request public comment on this analysis, including on
the number of small entities that may be affected (see the Public
Comments Solicited section above).
The RFA, as amended by SBREFA, requires us to consider alternatives
to the proposed regulation that will reduce the impacts to small
entities. We considered an alternative of not expanding critical
habitat for Southern Resident killer whales within their coastal range
because it would impose none of the additional economic, national
security, or other relevant impacts described in the draft Economic
Report or the draft ESA Section 4(b)(2) Report. Under this alternative,
Southern Resident killer whales would continue to receive protections
provided under the ESA, the existing critical habitat, as well as other
Federal, state, and local laws. We rejected this alternative because we
determined that the proposed expanded critical habitat is prudent and
determinable, and the ESA requires critical habitat designation in that
circumstance. We also considered alternatives in which we designated
all six of the identified ``specific areas'' (i.e., no area excluded),
or designated some subset of the ``specific areas'' (i.e., some
``particular areas'' within the identified ``specific areas'' would be
excluded). As described in our draft ESA Section 4(b)(2) report, we
considered the economic impacts, impacts to national security, and
other relevant impacts that would result from designation, and weighed
the benefits of designation against the benefits of exclusion.
Ultimately, we selected an alternative in which one particular area was
excluded from the designation, the Navy's Quinault Range Site off the
coast of Washington and a 10-km buffer around it, because we considered
impacts to national security outweighed the benefits of designating
critical habitat there.
Coastal Zone Management Act
Under section 307(c)(1)(A) of the Coastal Zone Management Act
(CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each
Federal activity within or outside the coastal zone that has reasonably
foreseeable effects on any land or water use or natural resource of the
coastal zone shall be carried out in a manner which is consistent to
the maximum extent practicable with the enforceable policies of
approved State coastal management programs. We have determined that
this proposed revision of the critical habitat designation for Southern
Resident killer whales is consistent to the maximum extent practicable
with the enforceable policies of the approved Coastal Zone Management
Programs of Washington, Oregon, and California. This determination has
been submitted to the responsible agencies in the aforementioned states
for review.
Paperwork Reduction Act
The purpose of the Paperwork Reduction Act is to minimize the
paperwork burden for individuals, small businesses, educational and
nonprofit institutions, and other persons resulting from the collection
of information by or for the Federal government. This proposed rule
does not contain any new or revised collection of information. This
rule, if adopted, would not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
(a) This proposed rule will not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute or
regulation that would impose an enforceable duty upon State, local,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
The designation of critical habitat does not impose an enforceable duty
on non-Federal government entities or private
[[Page 49232]]
parties. The only regulatory effect of a critical habitat designation
is that Federal agencies must ensure that their actions are not likely
to destroy or adversely modify critical habitat under ESA section 7.
Non-Federal entities that receive funding, assistance, or permits from
Federal agencies or otherwise require approval or authorization from a
Federal agency for an action may be indirectly impacted by the
designation of critical habitat, but the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Furthermore, to the extent that non-Federal
entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply. Nor would critical
habitat shift the costs of the large entitlement programs listed above
to state governments.
(b) Due to the prohibition against take of Southern Resident killer
whales both within and outside of the designated areas, we do not
anticipate that this proposed rule will significantly or uniquely
affect small governments. As such, a Small Government Agency Plan is
not required.
Information Quality Act and Peer Review
Pursuant to the Information Quality Act (section 515 of Pub. L.
106-554), this information product has undergone a pre-dissemination
review by NMFS. The signed Pre-dissemination Review and Documentation
Form is on file with the NMFS West Coast Regional Office in Seattle,
Washington (see FOR FURTHER INFORMATION CONTACT).
On December 16, 2004, the Office of Management and Budget (OMB)
issued its Final Information Quality Bulletin for Peer Review
(Bulletin). The Bulletin was published in the Federal Register on
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005.
The primary purpose of the Bulletin is to improve the quality and
credibility of scientific information disseminated by the Federal
government by requiring peer review of ``influential scientific
information'' and ``highly influential scientific information'' prior
to public dissemination. Influential scientific information is defined
as information the agency reasonably can determine will have or does
have a clear and substantial impact on important public policies or
private sector decisions. The Bulletin provides agencies broad
discretion in determining the appropriate process and level of peer
review. Stricter standards were established for the peer review of
``highly influential scientific assessments,'' defined as information
whose dissemination could have a potential impact of more than $500
million in any one year on either the public or private sector or that
the dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest. The draft Biological Report (NMFS
2019a) and draft Economic Report (IEc 2019) supporting this proposed
rule are considered influential scientific information and subject to
peer review. These two reports were distributed to five independent
reviewers for review before the publication date of this proposed rule,
and peer review comments were incorporated prior to their dissemination
in support of this proposed rulemaking. The peer reviewer comments were
compiled into peer review reports that are available at the following
website: https://www.cio.noaa.gov/services_programs/prplans/ID402.html.
On April 24, 2019, OMB issued memorandum M-19-15 to reinforce,
clarify, and interpret agency responsibilities under the Information
Quality Act. The memorandum directs agencies to update their agency-
specific guidelines within 90 days to be consistent with certain
parameters. NOAA has not yet issued revised guidance.
National Environmental Policy Act (NEPA)
NMFS has determined that an environmental analysis as provided for
under NEPA is not required for critical habitat designations made
pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th
Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: September 12, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 226 is
proposed to be amended as follows:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Revise Sec. 226.206 to read as follows:
Sec. 226.206 Critical habitat for the Southern Resident killer whale
(Orcinus orca).
Critical habitat is designated for the Southern Resident killer
whale as described in this section. The maps, clarified by the textual
descriptions in this section, are the definitive source for determining
the critical habitat boundaries.
(a) Critical habitat boundaries. Critical habitat is designated to
include all areas in paragraphs (a)(1) and (2) of this section.
(1) Inland waters of Washington State. Critical habitat includes
three specific marine areas of Puget Sound, Washington, within the
following counties: Clallam, Jefferson, King, Kitsap, Island, Mason,
Pierce, San Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical
habitat includes all waters relative to a contiguous shoreline
delimited by the line at a depth of 20 feet (ft) (6.1 meters (m))
relative to extreme high water in each of the following areas:
(i) Summer Core Area: All U.S. marine waters in Whatcom and San
Juan counties; and all marine waters in Skagit County west and north of
the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W).
(ii) Puget Sound Area: All marine waters in Island County east and
south of the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W), and east of a line connecting the Point Wilson
Lighthouse (48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey
Island located at 48[deg]12'30'' N/122[deg]44'26'' W; all marine waters
in Skagit County east of the Deception Pass Bridge (Highway 20)
(48[deg]24'25'' N/122[deg]38'35'' W); all marine waters of Jefferson
County east of a line connecting the Point Wilson Lighthouse
(48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey Island
located at latitude 48[deg]12'30'' N/122[deg]44'26'' W, and north of
the Hood Canal Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23''
W); all marine waters in eastern Kitsap County east of the Hood Canal
Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23'' W); all marine
waters (excluding Hood Canal) in Mason County; and all marine waters in
King, Pierce, Snohomish, and Thurston counties.
(iii) Strait of Juan de Fuca Area: All U.S. marine waters in
Clallam County east of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W); all marine waters in
Jefferson and Island counties west of the Deception Pass Bridge
(Highway 20) (48[deg]24'25'' N/122[deg]38'35'' W), and west of
[[Page 49233]]
a line connecting the Point Wilson Lighthouse (48[deg]8'39'' N/
122[deg]45'12'' W) and a point on Whidbey Island located at
48[deg]12'30'' N/122[deg]44'26'' W.
(2) Coastal marine waters along the U.S. West Coast. Critical
habitat includes six specific marine areas along the coasts of
Washington, Oregon, and California. Critical habitat includes all
waters relative to a contiguous shoreline delimited by the line at a
depth of 20 ft (6.1 m) relative to mean high water in each of the
following areas:
(i) Coastal Washington/Northern Oregon Inshore Area: U.S. marine
waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S.
international border with Canada south to Cape Meares, Oregon
(45[deg]29'12'' N), between the 6.1-m and 50-m isobath contours. This
includes waters off Clallam, Jefferson, Grays Harbor, and Pacific
counties in Washington and Clatsop and Tillamook counties in Oregon.
(ii) Coastal Washington/Northern Oregon Offshore Area: U.S. marine
waters west of a line connecting Cape Flattery, Washington
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British
Columbia (48[deg]35'30'' N/124[deg]43'00'' W) south to Cape Meares,
Oregon (45[deg]29'12'' N), between the 50-m and 200-m isobath contours.
This includes waters off Clallam, Jefferson, Grays Harbor, and Pacific
counties in Washington and Clatsop and Tillamook counties in Oregon.
(iii) Central/Southern Oregon Coast Area: U.S. marine waters from
Cape Meares, Oregon (45[deg]29'12'' N) south to the border between
Oregon and California (42[deg]00'00'' N), between the 6.1-m and 200-m
isobath contours. This includes waters off Tillamook, Lincoln, Lane,
Douglas, Coos, and Curry counties in Oregon.
(iv) Northern California Coast Area: U.S. marine waters from the
border between Oregon and California (42[deg]00'00'' N) south to Cape
Mendocino, California (40[deg]26'19'' N), between the 6.1-m and 200-m
isobath contours. This includes waters off Del Norte and Humboldt
counties in California
(v) North Central California Coast Area: U.S. marine waters from
Cape Mendocino, California (40[deg]26'19'' N) south to Pigeon Point,
California (37[deg]11'00'' N), between the 6.1-m and 200-m isobath
contours. This includes waters off Humboldt, Mendocino, Sonoma, Marin,
San Francisco, and San Mateo counties in California.
(vi) Monterey Bay Area: U.S. marine waters from Pigeon Point,
California (37[deg]11'00'' N) south to Point Sur, California
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This
includes waters off San Mateo, Santa Cruz, and Monterey counties in
California.
(b) Essential features. The essential features for the conservation
of Southern Resident killer whales are the following:
(1) Water quality to support growth and development;
(2) Prey species of sufficient quantity, quality, and availability
to support individual growth, reproduction, and development, as well as
overall population growth; and
(3) Passage conditions to allow for migration, resting, and
foraging.
(c) Sites owned or controlled by the Department of Defense.
Critical habitat does not include the following particular areas owned
or controlled by the Department of Defense, or designated for its use,
in the State of Washington, including shoreline, nearshore areas around
structures such as docks and piers, and marine areas where they overlap
with the areas described in paragraph (a) of this section:
(1) Naval Undersea Warfare Center, Keyport;
(2) Naval Ordnance Center, Port Hadlock (Indian Island);
(3) Naval Fuel Depot, Manchester;
(4) Naval Air Station, Whidbey Island;
(5) Naval Station, Everett;
(6) Naval Hospital Bremerton;
(7) Fort Lewis (Army);
(8) Pier 23 (Army);
(9) Puget Sound Naval Ship Yard;
(10) Strait of Juan de Fuca naval air-to-surface weapon range,
restricted area;
(11) Strait of Juan de Fuca and Whidbey Island naval restricted
areas;
(12) Admiralty Inlet naval restricted area;
(13) Port Gardner Naval Base restricted area;
(14) Port Orchard Passage naval restricted area;
(15) Sinclair Inlet naval restricted area;
(16) Carr Inlet naval restricted area;
(17) Port Townsend/Indian Island/Walan Point naval restricted area;
(18) Crescent Harbor Explosive Ordnance Units Training Area; and
(19) Quinault Range (including the surf zone at Pacific Beach) and
a 10-km buffer around the Quinault Range.
(d) Maps of Southern Resident killer whale critical habitat.
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[FR Doc. 2019-20166 Filed 9-18-19; 8:45 am]
BILLING CODE 3510-22-C