[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Proposed Rules]
[Pages 54354-54391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21186]
[[Page 54353]]
Vol. 84
Wednesday,
No. 196
October 9, 2019
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223, 224, and 226
Endangered and Threatened Wildlife and Plants: Proposed Rule To
Designate Critical Habitat for the Central America, Mexico, and Western
North Pacific Distinct Population Segments of Humpback Whales; Proposed
Rule
Federal Register / Vol. 84 , No. 196 / Wednesday, October 9, 2019 /
Proposed Rules
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223, 224, and 226
[Docket No. 190925-0039]
RIN 0648-BI06
Endangered and Threatened Wildlife and Plants: Proposed Rule To
Designate Critical Habitat for the Central America, Mexico, and Western
North Pacific Distinct Population Segments of Humpback Whales
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 NMFS, propose to designate critical habitat for the
endangered Western North Pacific distinct population segment (DPS), the
endangered Central America DPS, and the threatened Mexico DPS of
humpback whales (Megaptera novaeangliae) pursuant to section 4 of the
Endangered Species Act (ESA). Areas proposed as critical habitat
include specific marine areas located off the coasts of California,
Oregon, Washington, and Alaska. Based on consideration of national
security and economic impacts, we also propose to exclude multiple
areas from the designation for each DPS. We are soliciting comments on
all aspects of the proposed critical habitat designations and will
consider information received prior to making final designations.
DATES: Comments must be received by December 9, 2019. Requests for
public hearings must be made in writing by November 25, 2019.
ADDRESSES: You may submit data, information, or comments on this
document, identified by NOAA-NMFS-2019-0066, and on the supplemental
documents by either of the following methods:
Electronic Submission: Submit all electronic comments via the
Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0066, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Endangered Species Division,
Office of Protected Resources, National Marine Fisheries Service, 1315
East West Highway (SSMC3), Silver Spring, MD 20910, Attn: Humpback
Whale 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,
might 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. We will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Documents supporting this proposed rule, which include a Draft
Biological Report (NMFS 2019a), a Draft Economic Analysis (IEc 2019a),
and a Draft Section 4(b)(2) Report (NMFS 2019b), are available on the
Federal e-Rulemaking Portal www.regulations.gov/#!docketDetail;D= NOAA-
NMFS-2019-0066.
FOR FURTHER INFORMATION CONTACT: Lisa Manning, NMFS, Office of
Protected Resources 301-427-8466.
SUPPLEMENTARY INFORMATION: Section 3(5)(A) of the ESA defines critical
habitat as (i) the specific areas within the geographical area occupied
by the species, at the time it is listed, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species. (16 U.S.C. 1532(5)(A)). Conservation
is defined in section 3(3) of the ESA as the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary (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.
Section 4(b)(2) of the ESA requires the Secretary 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.
This section also grants the Secretary of Commerce (Secretary)
discretion to exclude any area from critical habitat if he determines
the benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat. However, the Secretary may not
exclude areas if such exclusion will result in the extinction of the
species (16 U.S.C. 1533(b)(2)).
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they authorize, fund,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is additional 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. See 16 U.S.C.
1536(a)(1). Critical habitat requirements do not apply to citizens
engaged in actions on private land that do not involve a Federal
agency.
This proposed rule summarizes relevant information regarding the
biology and habitat use of humpback whales, the methods used to develop
the three proposed critical habitat designations, and the proposed
critical habitats for the Central America (CAM), Mexico (MX), and
Western North Pacific (WNP) DPSs of humpback whales. The following
supporting documents provide more detailed discussions of information
and analyses that contributed to the conclusions presented in this
proposed rule: Draft Biological Report (NMFS 2019a), Draft Economic
Impact Analysis (IEc 2019a), and Draft Section 4(b)(2) Report (NMFS
2019b). These supporting documents are referenced throughout this
proposed rule.
As detailed in the sections that follow, the specific occupied
areas proposed for designation as critical habitat for the WNP DPS of
humpback whales contain approximately 78,690 square nautical miles
(nmi\2\) of marine habitat within the North Pacific Ocean, including
areas within the Bering Sea and the Gulf of Alaska. Specific occupied
areas proposed for designation as critical habitat for the CAM DPS of
humpback whales contain approximately 48,459 nmi\2\ of marine habitat
within the North Pacific Ocean, specifically within the portions of the
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California Current Ecosystem off the coasts of Washington, Oregon, and
California. Specific occupied areas proposed for designation as
critical habitat for the MX DPS of humpback whales contain
approximately 175,812 nmi\2\ of marine habitat within the North Pacific
Ocean, specifically within portions of Bristol Bay, the Bering Sea, the
Gulf of Alaska, and California Current Ecosystem.
Based on consideration of economic impacts under section 4(b)(2) of
the ESA, we propose to exclude approximately 44,119 nmi\2\ of marine
habitat from the designation for the WNP DPS, approximately 12,966
nmi\2\ of marine habitat from the designation for the CAM DPS, and
approximately 30,527 nmi\2\ of marine habitat from the designation for
the MX DPS. Based on consideration of national security impacts under
section 4(b)(2) of the ESA, we also propose to exclude approximately 48
nmi\2\ of marine habitat from the critical habitat designation for the
MX DPS in Southeast Alaska; and we propose to exclude about 1,522
nmi\2\ of marine habitat off the coast of Washington from the
designations for the CAM and MX DPSs.
Background
On September 8, 2016, we published a final rule that revised the
listing of humpback whales under the ESA by removing the original,
taxonomic-level species listing, and in its place listing four DPSs as
endangered and one DPS as threatened (81 FR 62260). We also determined
that nine additional DPSs did not warrant listing. Prior to this
revision, the humpback whale had been listed as an endangered species
in 1970 under the precursor to the ESA (the Endangered Species
Conservation Act of 1969), and then transferred to the list of
endangered species under the ESA. Although the ESA was later amended to
require the designation of critical habitat for listed species, when
humpback whales were originally listed, there was no statutory
requirement to designate critical habitat for this species. Section
4(a)(3)(A) of the ESA now requires that, to the maximum extent prudent
and determinable, critical habitat be designated at the time of listing
(16 U.S.C. 1533(a)(3)(A)). Pursuant to implementing regulations at 50
CFR 424.12(g), critical habitat cannot be designated within foreign
countries or in areas outside the jurisdiction of the United States.
Thus, the listing of DPSs of humpback whales under the ESA in 2016
triggered the requirement to designate critical habitat, to the maximum
extent prudent and determinable, for those DPSs occurring in areas
under U.S. jurisdiction--specifically, the CAM, MX, and WNP DPSs.
In the proposed rule to revise the humpback whale listing, we
solicited information that could inform a critical habitat designation
(80 FR 22304; April 21, 2015), but we did not receive relevant data or
information regarding habitats or habitat features in areas within U.S.
jurisdiction. In the final rule to list five DPSs of humpback whales,
we concluded that critical habitat was not yet determinable, which had
the effect of extending by one year the statutory deadline for
designating critical habitat (16 U.S.C. 1533(b)(6)(C)(ii)).
On March 15, 2018, the Center for Biological Diversity, Turtle
Island Restoration Network, and the Wishtoyo Foundation filed a
complaint seeking court-ordered deadlines for the issuance of proposed
and final rules to designate critical habitat for the CAM, MX, and WNP
DPSs of humpback whales. See Center For Biological Diversity et al. v.
National Marine Fisheries Service, et al., No. 3:18-cv-01628-EDL (N.D.
Cal.). The parties entered into a settlement agreement with the
approval and oversight of the court, and subsequently amended the dates
specified in the original order. The amended settlement agreement
stipulates that NMFS must submit a proposed determination concerning
the designation of critical habitat for these three DPSs to the Federal
Register by September 26, 2019, and (to the extent a proposed rule has
been published) a final rule by September 28, 2020.
In 2018, a critical habitat review team (CHRT) was convened to
assess and evaluate information in support of a critical habitat
designation for the CAM, MX, and WNP DPSs of humpback whales, which
occur within portions of U.S. waters in the North Pacific Ocean. The
CHRT consisted of eight biologists from NMFS and two from the National
Ocean Service (NOS), all of whom have expertise and experience in
humpback whale research or management, experience in developing
critical habitat designations, and/or expertise in geographic
information systems (GIS, i.e., mapping). To determine potential
critical habitat areas for the DPSs, the CHRT reviewed available data
on humpback whales, including the global assessment of humpback whales
and the status review that were completed in support of the ESA
listings (Fleming and Jackson 2011, Bettridge et al. 2015), the
proposed and final listing rules for humpback whales (80 FR 22304,
April 21, 2015; 81 FR 62260, September 8, 2016), recent biological
surveys and reports, and peer-reviewed literature. The CHRT also
convened a workshop on May 22-23, 2018, at the NMFS Alaska Fisheries
Science Center (AFSC) in Seattle, Washington, that brought together the
CHRT members as well as 11 additional researchers from either the AFSC
or other parts of NMFS. Several other individuals from external
organizations (specifically, the Cascadia Research Collective (CRC),
Moss Landing Marine Laboratories, National Park Service, and Oregon
State University) participated during portions of the workshop either
in person or by video conference to present and discuss their relevant
research. Data considered, analyses conducted, and conclusions reached
by the CHRT are discussed in detail in the Draft Biological Report
(NMFS 2019a). Information from that report is summarized in the
sections that follow.
Species Description and Status of the DPSs
Humpback whales (Megaptera novaeangliae (Borowski 1781) are large,
baleen whales (family Balaenopteridae) that are found in all oceans
across the globe. They range in color from black to gray with varying
amounts of white on their bellies, flukes, and fins. Some patterns of
color variation may occur among whales found in different geographic
regions, but variations also occur among individual whales. Distinctive
natural markings on the underside of the fluke along with other
identifying features such as scars have been used to identify
individual whales for decades by cetologists around the world. Also
among their distinctive traits are their long flippers, which are
knobbed on the leading edge, and both flippers and fluke are scalloped
on the trailing edge.
Humpback whales can weigh over 40 tons (Ohsumi 1966) and are, on
average, 13-15 meters in length at maturity (Chittleborough 1965,
Mikhalev 1997). Females are longer than males by about 1 to 1.5 meters
(Chittleborough 1965). The oldest known humpback whale was estimated to
be about 95 years old (Chittleborough 1965, Gabriele et al. 2010).
Average generation time has been estimated to be 21.5 years (Taylor et
al. 2007), and adult survival rate is estimated to be between 0.87-
1.00, depending on location and year (Barlow and Clapham 1997,
Chaloupka et al. 1999, Mizroch et al. 2004).
Humpback whales breed and calve in tropical/subtropical waters in
the winter months, typically during January-May in the Northern
hemisphere. Calving intervals are between 1 to 5 years but
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are more commonly between 2 to 3 years (Wiley and Clapham 1993, Steiger
and Calambokidis 2000). Annual calving can occur but is rare (Straley
1989). After an 11-12 month gestation period, calves are born in the
low latitude breeding grounds (Matthews 1937). Lactation occurs for
close to 11 months, with calves beginning to wean at around 6 months
(in June or July in the Northern Hemisphere) and reaching full
independence after about a year (Chittleborough 1958, 1965; Clapham and
Mayo 1990).
Males produce long, complex songs during the breeding season (Payne
and Mcvay 1971), possibly to communicate their location and readiness
to mate or to establish social order among males, or both (Tyack 1981,
Darling and B[eacute]rub[eacute] 2001). Singing is typically heard on
the breeding grounds but has also been detected during migration
(Norris et al. 1999, Noad and Cato 2007) and on feeding grounds as well
(Mattila et al. 1987, McSweeney et al. 1989, Clark and Clapham 2004,
Stimpert et al. 2012, Magn[uacute]sd[oacute]ttir et al. 2014). While on
breeding grounds, humpback whales rarely feed (Baraff et al. 1991).
Around springtime, the whales typically migrate to temperate,
higher latitude regions to feed and build up fat and energy reserves
for the return migration, lactation, and breeding. Humpback whales feed
on mainly euphausiids (krill) and small pelagic fishes (Nemoto 1957,
1959; Klumov 1963; Rice 1963; Krieger and Wing 1984; Baker 1985;
Kieckhefer 1992; Clapham et al. 1997).
Humpback whales were commercially hunted for centuries throughout
their range until the 1950s/60s. Reported catches from the 20th century
suggest that humpback whales were distributed extensively throughout
the North Pacific (Ivashchenko et al. 2015). Non-subsistence whaling
was first prohibited by the International Whaling Commission (IWC) in
1955 in the North Atlantic and then in the North Pacific and Southern
Hemisphere in 1965 after a final commercial whaling season (NMFS 1991).
The total catch of humpback whales exploited in the North Pacific in
the 20th century is estimated to be just over 29,000 whales
(Ivashchenko et al. 2017). By the time modern commercial whaling was
officially ended (though not completely ceased), the total abundance of
humpback whales in the North Pacific may have been as few as roughly
1,000 whales (Rice 1978). Since the moratorium on commercial whaling,
populations have been steadily increasing but some have not yet
returned to historical abundance levels (Zerbini et al. 2006, Ford et
al. 2009, Bettridge et al. 2015). Despite the official end of
commercial whaling, some countries continue to engage in whaling
practices.
The CAM DPS is listed as endangered and has been most recently
estimated to include 783 whales (CV = 0.170, Wade 2017). Entanglement
in fishing gear and vessel collisions, in particular, were identified
as the most significant threats to this DPS in the 2016 final listing
rule (81 FR 62260, September 8, 2016). Within U.S. waters, whales of
this DPS are observed off the coasts of Washington, Oregon, and
California.
The MX DPS is listed as threatened and has been most recently
estimated to have an abundance of 2,806 whales (CV = 0.055, Wade 2017).
Entanglement in fishing gear, especially off the coasts of Washington,
Oregon, and California, was identified as the primary threat to this
DPS. Entanglement has been documented primarily in pot and trap gear
but also in gillnets (Carretta et al. 2018). Other threats include ship
strikes and persistent organic pollutants, although, at the time of
listing, these threats were not considered to be significantly
impacting the survival of this DPS (Fleming and Jackson 2011, Bettridge
et al. 2015). More recently, Rockwood et al. (2017) estimated that the
mortality due to ship strikes (22 per year) is greater than the
estimated fishery bycatch and is equal to the potential biological
removal (PBR) level for the California/Oregon/Washington stock of
humpback whales (Carretta et al. 2018). (Humpback whales are separately
identified and managed as ``stocks'' under the Marine Mammal Protection
Act (MMPA, 16 U.S.C. 1361 et seq.), a management unit that is not
necessarily coextensive with a corresponding DPS under the ESA. PBR is
defined under the MMPA as the maximum number of animals (not including
natural mortalities) that may be removed from the stock while allowing
that stock to reach or maintain its optimum sustainable population.)
Whales within the MX DPS have a broad distribution within U.S. waters
and occur along the coasts of Washington, Oregon, California, and
Alaska.
The WNP DPS is listed as endangered and has an estimated abundance
of 1,066 whales (CV = 0.079, Wade 2017). There is a high degree of
uncertainty regarding the threats to this DPS; however, entanglement in
fishing gear likely represents a serious threat (Brownell et al. 2000,
Baker et al. 2006). Other likely threats to this DPS include offshore
energy development activities, vessel collisions, pollution, and food
competition (with fisheries, Bettridge et al. 2015). Humpback whale
meat has been identified in Korean markets, and it is possible that
whaling could be posing a threat to this DPS (Brownell et al. 2000,
Baker et al. 2006). Within U.S. waters, whales from this DPS have been
observed in waters off Alaska, primarily the eastern Aleutian Islands.
All three of these listed DPSs overlap spatially to varying degrees
with the Hawaii DPS of humpback whales, which was found to not warrant
listing under the ESA in 2016 (81 FR 62260, September 8, 2016). The
Hawaii DPS whales breed in waters around the Hawaiian Islands and have
been observed on most of the known feeding grounds within the North
Pacific (Bettridge et al., 2015). This population has an estimated
abundance of about 11,571 whales (Wade 2017). While these whales are no
longer protected under the ESA (and critical habitat is not being
designated for them), they continue to be managed under the MMPA.
Distribution and Habitat Use
Humpback whales have strong fidelity to particular breeding
regions, a general pattern that contributed to how the various DPSs
were delineated and listed under the ESA (Bettridge et al. 2015). In
particular, the MX DPS includes whales that breed in the area of
mainland Mexico and the Revillagigedo Islands (Bettridge et al. 2015,
50 CFR 223.102). Whales from the CAM DPS breed off the coasts of Costa
Rica, Panama, Guatemala, El Salvador, Honduras, and Nicaragua
(Bettridge et al. 2015, 50 CFR 224.101). Humpback whales from the WNP
DPS breed in waters around southern Japan (e.g., Okinawa), off the
Philippines in the Kuroshio Current, and in additional breeding grounds
in the Western North Pacific that were ``unknown'' at the time of
listing (Bettridge et al. 2015, 50 CFR 224.101). As discussed in more
detail later (see ``Geographical Area Occupied by the Species''),
because none of the confirmed breeding areas for these DPSs are within
waters under U.S. jurisdiction, we cannot propose to designate them as
critical habitat.
Humpback whale breeding areas are characterized by warm, shallow
waters (Clapham and Mead 1999, Ersts and Rosenbaum 2003, Rasmussen et
al. 2007), and the whales are often found in association with islands,
banks, or offshore reefs (Dawbin 1966, Whitehead and Moore 1982, Baker
et al. 1986). These warm, tropical and subtropical breeding areas have
low productivity, and thus limited food availability, and the whales do
not typically feed while on the breeding grounds (Rasmussen et
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al. 2012, Villegas-Zurita and Castillejos-Moguel 2013).
In the North Pacific Ocean, humpback whales feed in biologically
productive waters along the coasts of California, Oregon, Washington,
and Alaska; British Columbia, Canada; and in waters off of Russia
(e.g., Kamchatka, Commander Islands). Although these feeding areas have
an almost continuous distribution around the North Pacific basin,
multiple studies have indicated fairly high levels of fidelity of
humpback whales to particular areas and limited movements of whales
among feeding areas (e.g., Waite et al. 1999, Calambokidis et al. 2001,
Calambokidis et al. 2008, Witteveen et al. 2011, Witteveen and Wynne
2016a, Gabriele et al. 2017). Understanding of how humpback whale
populations are spatially structured while in these feeding areas has
been informed by numerous studies, and probably most notably by the
results of the Structure of Populations, Levels of Abundance and Status
of Humpbacks Study--referred to as the SPLASH study. This study
involved the collection of both photographic and genetic data
throughout the North Pacific by several hundred researchers working in
over 10 countries (Calambokidis et al. 2008). Through the SPLASH study,
photo-identification data were collected over three breeding seasons
(2004, 2005, and 2006) and over two feeding seasons (2004, 2005) in
known breeding and feeding areas. Through this effort, a total of 7,971
unique whales were photo-identified (Calambokidis et al. 2008). For
most analyses, photo-identification data were grouped into six broad
feeding regions: Kamchatka (Russia), Aleutian Islands/Bering Sea, Gulf
of Alaska, Southeast Alaska/Northern British Columbia, Southern British
Columbia/Northern Washington, and California/Oregon (Calambokidis et
al. 2008, Barlow et al. 2011, Wade et al. 2016). Analysis of the photo-
identification data revealed that both within-season and between-season
movements of whales between these six feeding areas were infrequent and
any such exchanges were mainly to adjacent areas (Calambokidis et al.
2008), which is consistent with previous findings from earlier region-
wide studies (e.g., Calambokidis et al. 1996, Calambokidis et al.
2001).
Genetic analyses of skin samples collected during the SPLASH study
provide additional insight into the structuring of humpback whale
populations across the feeding areas (Baker et al. 2013). Analysis of
maternally inherited mitochondrial DNA (mtDNA) from 1,010 unique whales
indicated highly significant differences in mtDNA haplotype frequencies
among the feeding regions overall (overall FST = 0.121,
[Phi]ST = 0.178, p < 0.0001), and pairwise comparisons were
also significant (at p < 0.05) for 32 of 36 possible comparisons
(excluding the western Aleutians due to low sample size, Baker et al.
2013). Comparisons of bi-parentally inherited microsatellite DNA
indicated very weak but significant differentiation of microsatellite
allele frequencies among feeding areas, suggesting male-biased gene
flow (overall FST = 0.0034, p < 0.001, Baker et al. 2013).
The high degree of differentiation in mtDNA among feeding areas
reflects the influence of maternal fidelity to feeding areas. This
result is consistent with findings of previous but more spatially-
limited studies (e.g., Baker et al. 1998, Witteveen et al. 2004). This
effect likely stems from the close dependency of calves on their
mothers during their first year of life, during which they travel with
their mothers and thereby inherit information from their mothers about
feeding destinations (Baker et al. 1987, Pierszalowski et al. 2016).
Overall, while the available photo-identification data indicate
varying degrees of mixing of populations across the feeding areas, the
overall pattern of structuring of populations among the feeding areas,
as well as the pattern of migratory connections between particular
feeding areas and breeding areas, contributed to how the various DPSs
are described in the listing rule (81 FR 62260, September 8, 2016). In
particular, the MX DPS is described as including whales that feed
primarily off California-Oregon, northern Washington-southern British
Columbia, in the Gulf of Alaska and East Bering Sea (50 CFR 223.102).
The CAM DPS is described as including whales that feed along the West
Coast of the United States and southern British Columbia (50 CFR
224.101). The WNP DPS is described as including whales that feed
primarily in the West Bering Sea and off the Russian coast and the
Aleutian Islands (50 CFR 224.101).
Although these feeding areas are broadly distributed and range
widely in terms of latitude, they are usually over the continental
shelf or near the shelf edge at shallow (~10 m) to moderate water
depths (~50-200 m) and in cooler waters (Zerbini et al. 2016, Becker et
al. 2016 and 2017). Often, feeding areas are associated with
oceanographic (e.g., upwelling, fronts), bathymetric (e.g., submarine
canyons, banks), and/or biological features (e.g., spawning areas for
fish) that serve to concentrate or aggregate prey (e.g., Tynan et al.
2005, Dalla Rosa et al. 2012, Thompson et al. 2012, Friday et al. 2013,
Chenoweth et al. 2017, Straley et al. 2018, Santora et al. 2018).
Physical oceanographic mechanisms influencing primary productivity are
subject to significant variations on seasonal, inter-annual (e.g., El
Ni[ntilde]o), and decadal time-scales (e.g., Pacific Decadal
Oscillation (PDO) cycles; Barber and Chavez 1983, McGowan et al. 1998,
2003), which adds variability to humpback whale prey distributions and
abundances within the feeding areas.
Satellite tagging efforts have provided some insights into the
fine-scale movements of the whales while on the foraging grounds,
indicating the duration, area, and variability in the areas over which
the whales feed. For instance, in the summers of 2007 to 2011, Kennedy
et al. (2014) deployed satellite tags on eight adult humpback whales in
Unalaska Bay, Alaska, and tracked the whales for an average of 28 days
(range = 8-67 days). Position data were then analyzed and categorized
into one of three possible behavioral modes: Transiting; area-
restricted searching (ARS), or unclassified. The slower speeds and
higher turning angles during ARS behavior are considered to be
indicative of active foraging (Kennedy et al. 2014, citing Kareiva and
Odell 1987, Mayo and Marx 1990). Results indicated that whales mainly
stayed over shelf and slope habitat (1,000 m or shallower) while in ARS
mode, and all but one whale remained relatively close to Unalaska Bay
during the tracking period. One whale, however, left Unalaska Bay 3
days after being tagged, traveling along the Bering Sea shelf towards
Russia and covering almost 3,000 km in 26 days, indicating that the
whales may in fact travel long distances during the feeding season
(Kennedy et al. 2014). Satellite tags deployed on whales tagged off
central California in the summer/fall of 2004-2005 and in summer of
2017 and that were tracked for a minimum of 30 days, exhibited feeding
behavior (as detected by ARS data) over an area that averaged 20,435.6
km\2\ (n=8, SE = 7322.8) and 17,684.4 km\2\ (n=7, SE = 13,927.6 km\2\),
respectively (Mate et al. 2018). In the latter case, this average area
extended from the Channel Islands in southern California to central
Oregon. Similar tagging work off the Oregon coast in September/October
in 2017 indicated the whales actively fed over areas of comparable size
(average area = 17,215.6 km\2\; n=4; SE = 8,430.6), and for the few
whales tagged, the feeding area extended from Point Arena, central
California, to the southwest corner of
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Vancouver Island, British Columbia (Mate et al. 2018). The area over
which whales actively feed (as indicated by ARS data over a minimum of
30-days) appears to be somewhat smaller in Southeast Alaska, where the
average ARS area for whales tagged in summer of 1997 and in fall of
2014-2015 was 4,904.3 km\2\ (n=3, SE = 1,728.8) and 2,862.7 km\2\ (n=4,
SE = 1,834.2), respectively (Mate et al. 2018). Differences in the area
over which the whales feed between years likely reflects a seasonal
shift in target prey and prey distributions (Witteveen et al. 2011,
Straley et al. 2018).
Migrations of whales between their seasonal habitats have been
studied indirectly using genetic data and matching of individual photo-
identified whales at feeding and breeding areas, but the specific
migratory routes used by the whales remains poorly understood,
especially in the North Pacific. Although data are limited, telemetry
data from satellite-monitored radio tags have provided additional
insights into seasonal migrations. Humpback whales were initially
thought to migrate along a coastal route when travelling between their
seasonal habitats, but migration routes are now known to be varied,
with some whales taking coastal routes and some taking pelagic routes
(Fleming and Jackson 2011). For instance, Lagerquist et al. (2008)
tagged 11 whales off of Socorro Island, Mexico (within the
Revillagigedo Archipelago) in February 2003, and, after an average of
13.6 days (range = 3.8-27.0 days), seven of the whales migrated to
areas north of the breeding areas in Mexico--three were adult whales
without a calf and four were adult females travelling with a calf. Two
of these seven whales were tracked all the way to feeding grounds--one
to British Columbia (46 d migration) and one to Alaska (49 d
migration). The migration routes were well offshore, averaging 444 km
from the coast and ranging from 115 to 935 km from the coast
(Lagerquist et al. 2008). One whale, which travelled the closest to
shore overall, came within 41 km of Point Arena, California at the
closest point along its migration. An offshore northbound migratory
route between the Revillagigedo Archipelago and Alaska was also
documented through visual and acoustic detections during a ship-based
survey by Norris et al. (1999). Southbound migration routes were
recorded by researchers from Oregon State University, who conducted
satellite tagging efforts in multiple feeding areas during 1997-2017
(Mate et al. 2018). Six of 88 tagged whales were tracked along their
full migration route to breeding areas, and an additional 20 whales
were tracked for the early portion of their migration before
transmissions ceased. These tagging efforts indicate that up to three
different migration routes were taken by whales departing from
Southeast Alaska, with most (n=20) heading towards Hawaii (the breeding
destination for the non-listed Hawaiian population of humpback whales),
one that headed west into the Gulf of Alaska, and two that headed south
along the U.S West Coast. One whale that had been tagged in 2017 off
the coast of Oregon was tracked southward along a route that eventually
extended well offshore before heading on an eastward trajectory towards
mainland Mexico. Another two whales that had been tagged off central
California in 2004/2005, took much more coastal routes southward to
Mexico and Guatemala.
Diet and Feeding Behaviors
Humpback whales are generalists, taking a variety of prey while
foraging and also switching between target prey depending on what is
most abundant in the system (Witteveen et al. 2015, Fleming et al.
2016). Within the California Current marine ecosystem (CCE), the highly
productive coastal system that extends from British Columbia, Canada to
the southern Baja California Peninsula, humpback whales are known to
target Pacific sardine (Sardinops sagax), northern anchovy (Engraulis
mordax), Pacific herring (Clupea pallasii), euphausiids (specifically
Thysanoessa, Euphausia, Nyctiphanes, and Nematoscelis), and
occasionally juvenile rockfish (Sebastes; Rice 1963, Kieckhefer 1992,
Clapham et al. 1997). In waters off Alaska, the humpback diet includes:
Euphausiids, capelin (Mallotus villosus), Pacific herring, Atka
mackerel (Pleurogrammus monopterygius), juvenile walleye pollock
(hereafter ``pollock,''Gadus chalcogrammus (formerly, Theragra
chalcogramma)), Pacific cod (Gadus macrocephalus), saffron cod
(Eleginus gracilis), Arctic cod (Boreogadus saida), rockfish
(Sebastes), Pacific sand lance (Ammodytes personatus), eulachon
(Thaleichthys pacificus), surf smelt (Hypomesus pretious), Pacific
sandfish (Trichodon trichodon), and myctophids (primarily Stenobrachius
leucopsarus; Nemoto 1959, Klumov 1965, Tomilin 1967, Krieger and Wing
1984, Baker 1985, Witteveen et al. 2008, Neilson et al. 2015).
Euphausiids consumed in Alaska are mainly from genus Euphausia and
Thysanoessa (Krieger and Wing 1984). Additional prey noted in Alaska
are mysids, amphipods (Parathemisto libeelula), and shrimps (Eualus
gaimardii and Pandalus goniurus) (Tomilin 1967). There have also been
observations of humpback whales feeding on hatchery-released juvenile
salmon in Southeast Alaska (Chenoweth et al. 2017). A more detailed
discussion of the humpback whale diet by feeding regions within the
North Pacific is provided in the Draft Biological Report (NMFS 2019a).
Humpback whales are gulp feeders, gulping mouthfuls of prey and
water at a time (Ingebrigtsen 1929), and use a variety of capture
techniques while feeding, including lunges and bubble structures
(bubble nets, columns, clouds, and curtains; Jurasz and Jurasz 1979,
Hain et al. 1982). In general, humpback whales will lunge feed, both
towards the surface and at depths, while alternating between periods of
short, shallow dives and long, deeper dives and can execute multiple
lunges in one dive (Goldbogen et al. 2008). Lunge types include lateral
lunge feeding, vertical lunge feeding, and inverted lunge feeding
(Jurasz and Jurasz 1979). Additionally, humpbacks have been observed
using multiple types of bubble structure feeding techniques for
capturing prey, such as bubble nets, columns, clouds, and curtains
(Jurasz and Jurasz 1979, Hain et al. 1982) and techniques that combine
clouds with surface disturbances (like lobtail feeding, Weinrich et al.
1992). Artificial bubble structures have been shown experimentally to
constrain the spatial movement of herring, particularly large schools
(Sharpe and Dill 1997), supporting the conclusion that bubble
techniques are likely an effective method for herding prey. Additional
feeding strategies documented include ``blaze feeding'' (flashing the
white side of pectoral flipper at prey; Tomilin 1957 cited in Brodie
1977, Sharpe 2001), swimming/thrashing (roiling the surface and
thrashing tail, Hain et al. 1982), looping, flick feeding (lashing tail
at the surface, Jurasz and Jurasz 1979), vertical rise and subsidence
(creates a reduced pressure zone in the water column, Hays et al.
1985), ``roiling'' the surface with flippers and flukes (Hain et al.
1982), and trap-feeding (McMillan et al. 2019).
Humpback whales may also work in groups to herd and capture prey.
For instance, in Southeast Alaska, groups of whales have been observed
to release bubbles simultaneously in the same area, and then surface
through the center of the bubbles together to consume the herded
herring (Jurasz and Jurasz 1979, Baker 1985, D'Vincent et al. 1985).
Vocalizations may be important
[[Page 54359]]
in coordinating group feeding efforts (D'Vincent et al. 1985).
Feeding techniques likely vary depending on the target prey species
and prey density (Jurasz and Jurasz 1979). Dive depth of foraging
whales also varies depending on the target prey. In Alaska, Witteveen
et al. (2015) reported that whales dove deeper to forage on krill than
on fish (average depths of 98 m versus 80 m, respectively). Similarly,
in areas off California, Szesciorka (2015) documented shallower feeding
on the continental shelf where fish were more readily available, and
deeper feeding on continental break/slope where krill were present. For
dive depths in general, multiple authors have documented varying
average and maximum dive depths, with mean depths ranging from around
66 m to 107 m and maximim depths ranging from approximately 115 m to
388 m (in Alaska, California, and Antarctica; Witteveen et al. 2008,
Simon et al. 2012, Tyson 2014, Szesciorka 2015, Witteveen et al. 2015).
Because humpback whales only rarely feed on breeding grounds and
during migrations, the buildup of fat stores while on the feeding
grounds is critical to support migration and successful breeding. Given
the energetic costs associated with foraging activity itself,
especially at deeper depths (Goldbogen et al. 2008), foraging is only
expected to be energetically profitable above some lower threshold for
an energetic return. Evidence suggests that humpback whales will
generally feed when they encounter suitable concentrations of prey.
Although humpback whales have often been observed in association with,
or specifically targeting, dense aggregations of prey within North
Pacific feeding regions (e.g., Bryant et al. 1981, Krieger and Wing
1986, Goldbogen et al. 2008, Sigler et al. 2012, Witteveen et al.
2015), minimum prey densities required to support feeding are not
generally known.
Geographical Area Occupied by the Species
The phrase ``geographical area occupied by the species,'' which
appears in the statutory definition of critical habitat, is defined by
regulation as an area that may generally be delineated around species'
occurrences, as determined by the Secretary (i.e., range) (50 CFR
424.02). 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) (Id.). Below, we summarize
information regarding the geographical area occupied by each of the
three DPSs of humpback whales, each of which is a ``species'' as
defined in the ESA. See 16 U.S.C. 1532(16) (defining ``species'' to
include any distinct population segment of any species of vertebrate
fish or wildlife which interbreeds when mature). Additional details on
the range of each DPS are provided in the Draft Biological Report (NMFS
2019a).
Central America DPS
As discussed earlier, the CAM DPS is described as humpback whales
that breed in waters off Central America in the North Pacific Ocean and
feed along the west coast of the United States and southern British
Columbia (50 CFR 224.101(h)). The breeding range of this DPS includes
waters off the Pacific coast of Central America, from Panama north to
Guatemala, and possibly into southern Mexico (Bettridge et al. 2015,
Calambokidis et al. 2017). Whales from this DPS have been observed
within foraging grounds along the coasts of California, Oregon, and
Washington (Barlow et al. 2011).
In terms of distribution across their foraging range, CAM DPS
whales are significantly more common in waters of southern California
and occur in progressively decreasing numbers up the coast towards
Washington and Southern British Columbia (Steiger et al. 1991;
Rasmussen et al. 2001; Calambokidis et al. 2000, 2008, 2017). Of the
humpback whales identified off the coast of Central America (n=31) in a
photo-identification study conducted between 1981 and 1992, 84 percent
were re-sighted off California (Calambokidis et al. 2000). This
distribution pattern was also confirmed by the results of the SPLASH
study, which indicated that out of 29 between-season photo-
identification matches of whales from the Central America breeding
areas, 26 occurred within the California/Oregon feeding region and 3
occurred within the northern Washington/southern British Columbia
region (Barlow et al. 2011). Use of the Salish Sea by this DPS may be
extremely limited, and has been indicated by the single re-sighting
reported in Calambokidis et al. (2017), and no observations of these
whales have been reported for waters off Alaska or in the Bering Sea.
Mexico DPS
The MX DPS of humpback whales is defined as humpback whales that
breed or winter in the area of mainland Mexico and the Revillagigedo
Islands, transit Baja California, or feed in the North Pacific Ocean,
primarily off California-Oregon, northern Washington/southern British
Columbia, northern and western Gulf of Alaska, and East Bering Sea (50
CFR 223.102(e)). Of the three DPSs addressed in this proposed rule, the
MX DPS has the broadest distribution within the U.S. portion of their
range. Through the SPLASH study, MX DPS whales were photo-identified in
all five of the major feeding areas in, or partially in, U.S. waters--
i.e., California/Oregon (n=105 whales), northern Washington/southern
British Columbia (n=27 whales), southeast Alaska/northern British
Columbia (n=35 whales), the Gulf of Alaska (n=97 whales), and the
Aleutian Islands/Bering Sea (n=27 whales, Barlow et al. 2011).
In terms of their distribution across this range, whales using
different portions of the MX DPS breeding area appear to target
different feeding destinations. During SPLASH surveys, whales that had
been photo-identified along the Pacific coast of mainland Mexico were
sighted in highest numbers off the coast of California and Oregon (97
of 164 total matches), suggesting that this is their primary foraging
destination (Calambokidis et al. 2008, Barlow et al. 2011). Although
whales sighted off mainland Mexico also travel to the more northern
latitude feeding areas, the MX DPS whales sighted around the
Revillagigedo Archipeligo had more matches overall to Alaska feeding
areas and had higher match rates to the northern Gulf of Alaska feeding
area in particular (44 of 87 matches; Calambokidis et al. 2008).
Multiple studies have reported sightings of a small number of
whales in both the Mexico and Hawaii breeding areas (e.g., n=1, Darling
and McSweeney 1985; n=5, Calambokidis et al. 2001; n=17, Calambokidis
et al. 2008). Detections of shared song composition among whales from
different breeding locations along with presence of whales in mid-ocean
tropical waters during the breeding season also suggest some form of
contact between whales from different breeding populations (Darling et
al. 2019a and 2019b). Overall, interchange among breeding areas appears
to be rare, and remains poorly understood in terms of its biological
significance.
Western North Pacific DPS
Humpback whales of the WNP DPS are listed as humpback whales that
breed or winter in the area of Okinawa and the Philippines in the
Kuroshio Current (as well as unknown breeding grounds in the Western
North Pacific Ocean), transit the Ogasawara area, or feed in the North
Pacific Ocean,
[[Page 54360]]
primarily in the West Bering Sea and off the Russian coast and the
Aleutian Islands (50 CFR 224.101(h)). Whales from this DPS have been
sighted in foraging areas off the coast of Russia, primarily Kamchatka,
the Aleutian Islands, as well as in the Bering Sea and Gulf of Alaska,
and off northern and southern British Columbia (Figure 13; Darling et
al. 1996, Calambokidis et al. 2001, Barlow et al. 2011). Whales from
this DPS are not thought to use the feeding areas off Washington,
Oregon, and California.
Several studies have reported sightings of a small number of photo-
identified whales in both the Asia (off Japan or the Philippines) and
Hawaii breeding areas (e.g., n=1, Darling and Cerchio 1993; n=3, Salden
et al. 1999; n=4, Calambokidis et al. 2001; n=2, Calambokidis et al.
2008); however, the significance of these movement to either the WNP
DPS or the non-listed population of humpback whales that breed around
Hawaii has not been established.
In terms of their distribution across the U.S. portion of their
range, whales of the WNP DPS are most likely to be found off the
Aleutian Islands and in the Bering Sea (Wade et al. 2016, Wade 2017).
Although very limited in number, photo-identified whales from the
breeding areas of this DPS have also been sighted in the Kodiak and
Shumagin Island regions of Alaska (Calambokidis et al. 2001, Witteveen
et al. 2004, Calambokidis et al. 2008). During the SPLASH study (2004-
2006), photo-identified individuals from this DPS were matched to the
Gulf of Alaska (n=2), the Aleutian Islands/Bering Sea (n=9), and
Kamchatka feeding regions (n=21, Barlow et al. 2011).
As indicated by the regulatory definition of this DPS, the breeding
range of the WNP DPS is not fully resolved. At the time of listing, the
breeding range of this DPS was known to include the waters off Okinawa
and the Philippines in the area of the Babuyan Islands (Barlow et al.
2011, Bettridge et al. 2015, Wade et al. 2016), but additional breeding
areas were suspected based on the very low match rates for whales from
feeding areas used by this DPS (Calambokidis et al. 2008). Recent
evidence suggests an additional breeding area for the WNP DPS is
located off the Mariana Islands. Humpback whale song has been detected
on passive acoustic recorders within the Mariana Archipelago in winter
months (December-April; Fulling et al. 2011, Oleson et al. 2015).
Humpback whales have also been infrequently sighted near the Mariana
Islands, mainly off of Saipan (Fulling et al. 2011; Hill et al. 2016,
2017); and, although no humpback whales were sighted in this area
between 2009-2013 (Fulling et al. 2011, Hill et al. 2014, Ligon et al.
2013), mother-calf pairs have been observed off Saipan in 2015 (n=4
pairs), 2016 (n=4 pairs), and in 2017 (n=2 pairs; Hill et al. 2016,
2017, 2018). Individual photo-identification data for whales sampled
off Saipan within the Mariana Archipelago in February-March 2015-2018,
suggest that these whales belong to the WNP DPS (Hill et al. in
review). Specifically, comparisons with existing WNP humpback whale
photo-identification catalogs showed that 11 of 41 (27 percent) whales
within the Mariana Archipelago humpback whale catalog were previously
sighted in WNP breeding areas (Japan and Philippines) and/or in a WNP
feeding area off Russia (Hill et al. in review). Mitochondrial DNA
analyses comparing 24 individual humpback whales sampled within the
Mariana Archipelago to ones sampled in known breeding areas throughout
the Pacific demonstrated significant differentiation from the
Philippines, Okinawa, Hawaii, and Central America (Hill et al. in
review). No population structure was demonstrated between the Mariana
Archipelago and Ogasawara or Mexico breeding areas (Hill et al. in
review). Comparisons of samples from the Mariana Archipelago to known
foraging areas demonstrated significant differentiation from foraging
areas in Northern British Columbia, the Bering Sea, California/Oregon,
Southeast Alaska, and the Northern Gulf of Alaska; no population
structure was demonstrated between the Mariana Archipelago and foraging
areas in Russia, the Aleutian Islands, Western Gulf of Alaska, and
Southern British Columbia/Washington (Hill et al. in review). While the
available data suggest that the Mariana Archipelago may serve as
humpback whale breeding habitat, and that at least some of these whales
likely belong to the endangered WNP DPS, additional data are needed to
fully resolve the extent to which WNP DPS whales are relying on areas
around the Mariana Islands as a breeding/calving habitat and the
essential features of the specific area(s) being used for breeding and
calving. Thus, at this time, the best available scientific information
does not support including such areas within the proposed critical
habitat designation for the WNP DPS.
Physical and Biological Features Essential to the Conservation of the
Species
The statutory definition of occupied critical habitat refers to
``physical or biological features essential to the conservation of the
species,'' but the ESA does not specifically define or further describe
these features. ESA-implementing regulations at 50 CFR 424.02 (84 FR
45020; August 27, 2019; effective September 26, 2019), however, define
such features as follows:
The features that occur in specific areas and that are essential
to 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.
To assess habitat features that may qualify as ``essential to the
conservation'' of humpback whales, the CHRT discussed physical and
biological features that are essential to support the life history
needs and support the conservation of humpback whales within the areas
they occupy within U.S. waters. The CHRT considered and evaluated
various features of humpback whale habitat, such as prey, migratory
corridors or conditions, and sound/soundscape. Significant
considerations, CHRT discussions, and resulting conclusions are
summarized below as well as in the Draft Biological Report (NMFS
2019a).
Prey as an Essential Feature
Although written for the taxonomic species and thus now outdated,
the 1991 NMFS Recovery Plan for humpback whales, identified four major
recovery objectives, the first of which was, ``maintain and enhance
habitats used by humpback whales currently or historically'' (NMFS
1991). As part of that objective, we had identified multiple
recommended actions to further the species' recovery, including
``providing adequate nutrition'' and ``monitoring levels of prey
abundance'' (NMFS 1991). The Recovery Plan states that adequate
nutrition is needed for the recovery of the species, and emphasized the
need to maintain and optimize levels of, and access to, prey (NMFS
1991). The Recovery Plan also noted that humpback whales require access
to prey over a sufficiently widespread feeding range to buffer them
from local fluctuations in productivity or fisheries removals (NMFS
1991). As we discuss here, these considerations regarding adequate
nutrition and prey abundance and availability are still relevant today
[[Page 54361]]
for the MX, CAM, and WNP DPSs of humpback whales.
Whales from each of these three DPSs travel to U.S. coastal waters
specifically to access energy-rich feeding areas, and the high degree
of loyalty to specific locations indicates the importance of these
feeding areas. Although humpback whales are generalist predators and
prey availability can very seasonally and spatially, substantial data
indicate that the humpback whales' diet is consistently dominated by
euphausiid species (of genus Euphausia, Thysanoessa, Nyctiphanes, and
Nematoscelis) and small pelagic fishes, such as northern anchovy
(Engraulis mordax), Pacific herring (Clupea pallasii), Pacific sardine
(Sardinops sagax), and capelin (Mallotus villosus; Nemoto 1957, Nemoto
1959, Klumov 1963, Rice Krieger and Wing 1984, Baker 1985, Kieckhefer
1992, Clapham et al. 1997, Neilson et al. 2015; See ``Diet and Feeding
Behavior'' and Appendix A in NMFS 2019a).
Because humpback whales only rarely feed on breeding grounds and
during migrations, humpback whales must have access to adequate prey
resources within their feeding areas to build up their fat stores and
meet the nutritional and energy demands associated with individual
survival, growth, reproduction, lactation, seasonal migrations, and
other normal life functions. Essentially, while on feeding grounds, the
whales must finance the energetic costs associated with migration to
breeding areas, reproductive activities, as well as the energetic costs
associated with their return migration to high-latitude feeding areas.
Fat storage has been linked to reproductive efficiency in other species
of large, migratory, baleen whales (Lockyer 2007), and some evidence
suggests that variation in prey availability during summer is directly
connected to variation in annual reproductive rates for humpback whales
in the following year (Clapham 1993). Calf condition has also been
significantly correlated with female body condition (low calf body
condition with lower female condition) for humpback whales in Australia
(Christiansen et al. 2016), and, of all life stages, lactating females
have the highest energy demands (McMillan 2014).
Given the energetic demands of lunging and other prey capture
techniques, foraging is only expected to be profitable above some lower
threshold for an energetic return, and evidence suggests that humpback
whales will only feed when they encounter suitable concentrations of
prey. Within their North Pacific feeding areas, humpback whales have
often been observed in association with, or specifically targeting,
dense aggregations of prey (e.g., Bryant et al. 1981, Krieger and Wing
1986, Goldbogen et al. 2008, Sigler et al. 2012, Witteveen et al.
2015), but the precise range of prey densities required to support
feeding are not generally known and therefore cannot be described
quantitatively on the basis of the best scientific data available.
Thus, it is essential that the whales not only have reliable access to
prey within their feeding areas, but that prey are of a sufficient
density to support feeding and the build-up of energy reserves.
Given that each of three humpback whale DPSs very clearly rely on
the feeding areas while within U.S. waters, the CHRT identified a prey
biological feature that is essential to the conservation of the whales.
The prey essential feature was specifically defined as follows:
Prey species, primarily euphausiids and small pelagic schooling
fishes of sufficient quality, abundance, and accessibility within
humpback whale feeding areas to support feeding and population
growth.
Migratory Corridors and Passage Features
Given the known migratory behaviors of humpback whales and the very
significant concerns regarding entanglement and ship strikes of
humpback whales, especially along the U.S. West Coast, the CHRT
explored the possibility of defining a migratory corridor or a passage-
related essential feature. The CHRT considered the best available data
and also consulted with biologists with expertise in satellite
telemetry and entanglement of humpback whales. Ultimately, and for
reasons summarized below, the CHRT concluded that a migratory corridor
or passage feature could not be identified, either between or within
the seasonal habitats occupied by humpback whales within U.S. waters.
In terms of a migratory ``corridor,'' the available satellite
tagging data do not indicate a specific or consistently used route or
routes for humpback whales traveling between their seasonal breeding
and feeding areas in the North Pacific (Mate et al. 2007, Lagerquist et
al. 2008, Mate et al. 2018). However, data to resolve a specific
migratory routes are very limited, and, in particular, we are unaware
of any telemetry data demonstrating the seasonal migration routes or
corridors for whales of the WNP DPS or the CAM DPS. Satellite tagged
whales from the MX DPS have been documented to use very nearshore
waters, offshore waters within the U.S. Exclusive Economic Zone (EEZ),
as well as waters out beyond the U.S. EEZ when transiting between
winter breeding areas and summer feeding areas (Lagerquist et al. 2008,
Mate et al. 2018). For MX DPS whales, when complete migratory routes
have been captured, the telemetry data also indicate that the whales do
not necessarily maintain a constant distance from shore, and at
different points along their migration may be closer or farther from
shore (D. Palacios, OSU, pers. comm., June 6, 2018, Mate et al. 2018).
The depth or a depth range that the whales typically occupy while
undergoing their seasonal migrations is also not yet resolved.
Satellite tagging of whales within the feeding range of all three
DPSs has occurred, and while DPSs of origin was not necessarily
confirmed in all studies, results consistently show considerable
variation in the fine-scale movement patterns of the individual whales
both within and across years, suggesting that the whales are each
making independent decisions regarding their movements (Kennedy et al.
2014, Mate et al. 2018). Thus, the CHRT concluded it is not currently
possible, on the basis of the best scientific data available, to
spatially identify any consistently used migratory corridors or define
any physical, essential migratory or passage conditions for whales
transiting between or within habitats of the three DPSs.
The conclusion by the CHRT regarding a potential migratory corridor
is consistent with previous critical habitat designations for large,
migratory species such as Pacific leatherback sea turtles (77 FR 4170,
January 26, 2012) and North Atlantic right whales (81 FR 4837, January
27, 2016). In these cases, NMFS concluded that while supporting and
protecting the ability of these species to migrate between important
habitats and areas was important to the conservation of the species,
there was no clear migratory route or passage feature that could be
defined. We also note that, as part of a multi-agency mapping effort
(CetSound, https://cetsound.noaa.gov/cetsound), Biologically Important
Areas (BIAs) were identified in 2015 for cetacean species or
populations within the U.S. EEZ. BIAs are non-regulatory delineations
that are intended to inform regulatory and management decisions; they
are also not intended to be static delineations but can be updated as
new data become available. While the effort to develop BIAs was not
seeking to identify critical habitat and therefore
[[Page 54362]]
does not conclusively establish which areas should be considered to
meet the statutory definition of ``critical habitat,'' the CHRT
considered (and we agree) the BIA information to be very informative
and important part of the best available scientific information. Of the
four categories of BIAs--i.e., reproductive areas, feeding areas,
migratory corridors, and small and resident populations--no migratory
corridor BIAs have been identified to date for any population of
humpback whales in any ocean (Ferguson et al. 2015b, see ``Specific
Areas,'' below). Although we concur with the CHRT that the best
scientific data available at this time does not support identification
of a migratory feature, we acknowledge the ongoing management concerns
of ship strikes and entanglements in fishing gear. Humpback whales are
observed regularly in and around fishing gear and in areas of high
vessel traffic, and entanglement and ship strikes continue to pose
threats to all three of these DPSs. We find that these threats are of a
type more appropriately and more directly taken into account in the
context of management of activities that pose a risk of harm to
individual animals (i.e., ``take'') such as in interagency
consultations under section 7 of the ESA, rather than as threats to the
underlying habitat. While ship strikes and entanglements will continue
to be treated as ``take'' issues and managed as threats to the animals
to the extent possible under the ESA and MMPA, should these threats or
other activities (e.g., large-scale aquaculture), either independently
or in combination, prevent or impede the whales' ability to access
prey, we would consider that as constituting a negative impact on the
defined prey feature, which inherently includes consideration of
``accessibility.'' In other words, the whale's ability to move freely
to access their prey while on the feeding grounds is inherent in the
prey essential feature as proposed.
Sound or a Soundscape Feature
The CHRT considered at length the importance of sound to humpback
whales and whether the best scientific data available supported the
identification of a sound-related essential feature of the whales'
occupied habitats. As discussed in detail in the Draft Biological
Report, humpback whales generate a variety of sounds and use sound for
communicating and for sensing their environment. Ultimately, although
the CHRT members fully acknowledged that the whales' sensory ability to
perceive and process sounds is an important aspect of their biology,
the majority of the CHRT (with 2 members unsure and 1 dissent)
concluded that the best available data currently do not enable us to
identify particular sound levels or to describe a certain soundscape
feature that is essential to the conservation of humpback whales.
Reasons for this conclusion are summarized here and discussed in more
detail in NMFS (2019a).
Humpback whales occur within a wide range of soundscapes, and
conclusions regarding particular sound-related habitat requirements for
humpback whales are difficult to draw. Anthropogenic sounds are present
in all parts of humpback whale habitat; however, some areas have more
sources and higher levels of anthropogenic sound than others. Sightings
data clearly demonstrate that humpback whales in the North Pacific
routinely use and occupy relatively quieter areas as well as some of
the noisiest areas along the U.S. West Coast (e.g., southern
California, Redfern et al. 2017). Based on the best data available, the
threat of anthropogenic noise received a ``low'' rating for all DPSs of
humpback whales in the 2015 NMFS Status Review (out of possible ratings
of ``unknown,'' ``low,'' ``medium,'' ``high,'' and ``very high;''
Bettridge et al. 2015). Several studies have indicated that humpback
whales, which are predicted to have a low-frequency hearing range of
roughly 7 Hz to 35 kHz (NMFS 2018), may even habituate to certain low-
frequency noises (Sivle et al. 2016, Di Clemente et al. 2018, Teerlink
et al. 2018)--one of the most ubiquitous sources of which is commercial
vessels (Hildebrand 2009).
Behavioral responses of humpback whales to noise are highly
variable across habitats and even among individual whales, and many
factors can influence whether and how noise will affect a whale,
including past exposure to a noise, individual noise tolerance, age,
breeding status (with or without calf), and current behavioral state of
the whale (e.g., resting versus migrating; Malme et al. 1985, Krieger
and Wing 1986, Richardson et al. 1995, Richardson and W[uuml]rsig 1997,
NRC 2003, Sivle et al. 2016, Wensveen et al. 2017). Responses to noise
are also dependent on characteristics of the noise- e.g., pulse or non-
pulse, moving or stationary noise, novel or common, etc. (Richardson et
al. 1997, Southall et al. 2007, Ellison et al. 2012). Results of
several studies demonstrate that humpback whales exhibit behavioral
plasticity in their communication and signaling strategies in response
to increases in ambient noise (e.g., Dunlop et al. 2010, Dunlop et al.
2014, Fournet et al. 2018), which in some cases may allow the whales to
reduce acoustic interference with natural auditory signal processing
(i.e., acoustic masking). Adding to this overall complexity in
understanding how noise impacts humpback whales is the fact that
scientific understanding of humpback whale hearing remains quite
limited (Houser et al. 2001, NMFS 2018).
Given the highly diverse and spatially broad areas occupied by
humpback whales, as well as the mixed responses of humpback whales to
noise, the CHRT could not define a sound-related feature that is
essential to the conservation of humpback whales nor identify specific
areas where such a feature could be found within the occupied ranges of
the DPSs. Ambient sound or the ``soundscape'' is relevant to the
whales' ability to communicate and receive sounds within the marine
environment no matter where the whales occur, and sound or a soundscape
per se does not appear to be associated with habitat use or occupancy.
Instead, humpback whales appear to be highly flexible in their ability
to use and occupy habitats with varying soundscapes. This flexibility
may be in contrast to other cetaceans that have very limited or
restricted distributions and for which noise impacts, such as habitat
displacement, are likely to have measureable effects on stress,
foraging success, survival, reproduction, etc. (Forney et al. 2017). We
note, however, that substantial data gaps and various shortcomings for
much of the existing, relevant literature (such as limited duration of
assessments, limited geographic scale of observations, uncertainty
regarding actual mechanism for observed responses, uncertainty in the
received levels of noise, and other confounding factors associated with
the particular study locations) prevent a clear understanding of the
acoustic ecology of humpback whales. Furthermore, broader and longer-
term consequences of noise on the fitness and viability of humpback
whales are not yet known (NRC 2003, Wartzok et al. 2003, NRC 2005,
Bettridge et al. 2015, Gomez et al. 2016). Thus, although the CHRT
ultimately concluded that the best scientific data available do not
support identifying or describing a sound-related essential habitat
feature at this time, improved understanding of the acoustic ecology of
humpback whales in the future may eventually lead to a different
conclusion.
We agree with the CHRT's assessment and note that some effects of
noise on whales are direct effects on the animals, and that NMFS
already analyzes such effects in connection with evaluation of the
activities that generate noise under
[[Page 54363]]
the MMPA and section 7 of the ESA. We also note that if data indicate
that anthropogenic noise from a particular Federal action is impacting
the prey such that the whales cannot capture or access prey within
their feeding areas (e.g., prey densities are decreased such that
whales cannot feed), such an effect would constitute an impact on the
proposed prey essential feature.
Special Management Considerations or Protection
A specific area within the geographic area occupied by a species
may only be designated as critical habitat if the areas contains one or
more essential physical or biological feature that ``may require
special management considerations or protection'' (16 U.S.C.
1532(5)(A)(ii); 50 CFR 424.12(b)(iv)). ``Special management
considerations or protection'' is defined as methods or procedures
useful in protecting the physical or biological features essential to
the conservation of listed species (50 CFR 424.02). Courts have made
clear that the ``may require'' standard requires that NMFS determine
that special management considerations or protection of the features
might be required either now or in the future, but such considerations
or protection need not be immediately required. See Cape Hatteras
Access Pres. Alliance v. U.S. Dept. of Interior, 344 F. Supp. 2d 108,
123-24 (D.D.C. 2004); Home Builders Ass'n of N. California v. U.S. Fish
and Wildlife Serv., 268 F. Supp. 2d 1197, 1218 (E.D. Cal. 2003). The
relevant management need may be ``in the future based on possibility.''
See Bear Valley Mut. Water Co. v. Salazar, No. SACV 11-01263-JVS, 2012
WL 5353353, at *25 (C.D. Cal. Oct. 17, 2012. See also Center for
Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1098-99 (D. Ariz.
2003) (noting that the ``may require'' phrase can be rephrased and
understood as ``can require'' or ``possibly requires'').
Four broad categories of actions, or threats, were identified by
the CHRT as having the potential to negatively impact the essential
prey feature and the ability of feeding areas to support the
conservation of listed humpback whales in the North Pacific: Climate
change, direct harvest of the prey by fisheries, marine pollution, and
underwater noise. Each of these threats could independently or in
combination result in the need for special management or protections of
the essential prey feature. The ``may require'' standard is met or
exceeded with respect to management of the essential prey feature.
Although we do not speculate as to what specific conservation measures
might be required in the future through section 7 consultations on
particular proposed Federal actions, we can point, for example, to our
authorities to manage Federal fisheries under the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801, et seq.) to
demonstrate that management of the prey feature is not only possible
but is ongoing. We therefore conclude that the prey feature may require
special management considerations or protection. These threat
categories are summarized here and discussed in more detail in the
Draft Biological Report (NMFS 2019a).
Climate Change
Multiple studies have detected changes in the abundance, quality,
and distribution of species that serve as prey for humpback whales in
association with climate shifts, particularly with ocean warming. The
nature and extent of impacts have varied across study areas and
species; however, in many cases, ocean warming has led to negative
impacts on humpback whale prey species. For instance, in the California
Current Ecosystem (CCE), during the anomalous warming of the upper
ocean and weak upwelling from 2013-2016, often referred to as the
``blob'' or the ``warm blob,'' sharp decreases in euphausiid biomass
were observed, as evidenced by declines in both abundance and body
length (Harvey et al. 2017, Peterson et al. 2017). Comparisons of
samples collected in the Northern California Current region during
years of cool (2011, 2012), warm (2000, 2002), and intermediate (2015,
2016) conditions, also indicated that body condition of northern
anchovy, Pacific herring, and Pacific sardine were better in cool years
compared to warm years, and significantly so for anchovy and herring
(Brodeur et al. 2018). During the anomalous warm blob event, sardine
spawned earlier and appeared farther north within the Northern
California Current than in previous years (Auth et al. 2018). Shifts in
prey abundance and distributions may lead to corresponding shifts in
marine mammal distributions (King et al. 2011). In Monterey Bay,
California, such a response was reported for blue, fin, and humpback
whales, the densities of which all declined with El Ni[ntilde]o -
associated declines in euphausiids (Benson et al. 2002).
Consequences of climate-driven and climate-related reductions in
the quality and abundance of prey species can cascade upwardly through
ecosystems by decreasing energy transfers to higher trophic levels and
potentially even causing reproductive failures and die-offs of some
predators (Coyle et al. 2011, Zador and Yasumiishi 2017 and 2018,
Bordeur et al. 2018, Jones et al. 2018). Observations of whales with
poor body condition, called ``skinny whales'' due to their emaciated
appearance, have been reported in recent years in Prince William Sound
and Glacier Bay, Alaska (Straley et al. 2018; and see https://irma.nps.gov/DataStore/DownloadFile/620535). The lowest calving rates
on record (since 1985) have also been observed in recent years (2016-
2018, https://irma.nps.gov/DataStore/DownloadFile/620535) in Southeast
Alaska, and juvenile return rates to the area are also low (Gabriele
and Neilson 2018). It is not yet clear whether nutritional stress or
some other factor (e.g., parasites, disease) is the cause of the poor
body condition and observed low calving rates of these whales, but some
researchers hypothesize that reduced prey availability and/or quality
driven by the marine heat wave of 2013-2016 and other climate factors
is the likely cause (Gabriele and Neilson 2018).
Direct Harvest
Within the areas under consideration for designation, a few
fisheries directly target prey species that form a major part of the
humpback whale diet (e.g., Pacific herring, Pacific sardine, northern
anchovy), and other fisheries can incidentally capture important prey
species. This creates the potential for direct competition between
humpback whales and certain fisheries (Trites et al. 1997). In fact,
current management of key forage species like Pacific sardine and
northern anchovy under their associated Federal fishery management plan
includes a specific objective of providing adequate forage for
dependent species, like whales and other higher trophic level species
(PFMC 2019). Humpback whales target large, dense schools of prey, and
the best available data support the conclusion that, though not yet
quantifiable, there is a density threshold below which humpback whales
will not feed or cannot feed effectively due to trade-offs with the
energetic demands of feeding. Consequences of prey depletion as a
result of fishing activities are also likely to be exacerbated in years
when alternative humpback whale prey species are naturally low in
abundance due to climate or environmental factors. Sufficient depletion
of prey on the feeding grounds can lead to nutritional stress, which in
turn can lead to decreases in body condition, size, reproductive
output, and survival (as in Steller sea lions, Trites and Donnelly
2003; gray whales, Bradford et al. 2012; right whales, Seyboth et al.
2016). For
[[Page 54364]]
humpback whales in the Atlantic Ocean, there is some evidence that
variation in prey availability during the summer may be connected to
variation in annual reproductive rates in the following year (Clapham
1993).
Marine Pollution
Although pollution was not identified as a significant threat to
any of the North Pacific DPSs of humpback whales in the recent status
review (Bettridge et al. 2015), consumption of contaminated or low
quality prey may negatively affect the health, population growth, and
ultimately the recovery of listed humpback whales. Humpback whales are
susceptible to bioaccumulation of lipophilic contaminants because they
have long lifespans and large fat deposits in their tissues. Some
contaminants may also be passed to young whales during gestation and
lactation (as in fin whales, Aguilar and Borrell 1994). In comparisons
of samples collected from Northern Hemisphere feeding grounds, Elfes et
al. (2010) reported that concentrations of contaminants within humpback
whale blubber were high in southern California and in the Northern Gulf
of Maine. Marine pollution in the form of plastics is also a concern
for marine systems worldwide, and microplastics in particular have
entered into marine systems and food webs. Microplastics could be
consumed via contaminated prey or ingested directly by whales when
microplastics co-occur in the water column with target prey.
Marine pollution may also lead to secondary impacts on the whales'
habitat. For instance, pollution from untreated industrial and domestic
wastewater may be contributing to the occurrences of algal blooms.
During some algal blooms, toxins (e.g., saxitoxin, domoic acid) can
become increasingly concentrated as they move up the food chain.
Although much of the humpback whales' prey are lower trophic-level
species, several unusual mortality events have been documented in the
Atlantic Ocean, indicating that such toxins can pose a concern for
humpback whales. During one event in which 16 humpback whale carcasses
were found, some of the humpback whales had saxitoxin poisoning and/or
contained domoic acid (Gulland 2006). In another event, 14 humpback
whales were determined to have died as a result of consuming Atlantic
mackerel containing saxitoxin (Geraci et al. 1989).
Ocean Noise
Lastly, effects of noise on fish and zooplankton species, which is
a topic of increasing research attention, may range from health and
fitness consequences to mortality and reductions in abundance (Popper
and Hastings 2009, Kight and Swaddle 2011, Radford et al. 2014). For
instance, there is evidence that marine seismic surveys can result in
behavioral effects as well as significant injury and mortality of
fishes and zooplankton (McCauley et al. 2017, Carroll et al. 2017);
however, such impacts may be relatively short in duration and spatially
limited (to within the survey footprint and extending out ~15 km) and
may be minimized by ocean circulation (Richardson et al. 2017).
Available research also suggests that other noises in the marine
environment from sources such as impact pile driving and underwater
explosives may have negative consequences on certain species of fish
and invertebrates such as trauma or tissue damage, mortality (of
various life stages), stress, disruptions of schooling, or reduced
foraging success (Popper and Hastings 2009, Weilgart 2017). Whether and
how specific humpback whale prey are currently being impacted by
various noise sources and levels is not yet clear, but the available
information is sufficient to indicate that ocean noise poses a
management concern for many fish and invertebrate species such that
they may require management considerations or protection (Hawkins and
Popper 2017).
Unoccupied Areas
Section 3(5)(A)(ii) of the ESA authorizes the designation of
specific areas outside the geographical area occupied by the species if
those areas are determined to be essential for the conservation of the
species. Recently revised regulations at 50 CFR 424.12(b)(2), similar
to the regulations that were in effect prior to 2016, require that we
first evaluate areas occupied by the species and only consider
unoccupied areas to be essential where a critical habitat designation
limited to geographical areas occupied would be inadequate to ensure
the conservation of the species (84 FR 45020; August 27, 2019;
effective September 26, 2019).
Within the North Pacific Ocean, humpback whales historically ranged
throughout all coastal areas of Asia and North America. Although
humpback whale abundances were greatly reduced throughout their range
by commercial whaling (Rice 1978, Rice and Wolman 1982, Johnson and
Wolman 1984), they still occur in areas where they were once targeted
by commercial whaling operations, or to some degree have returned to
areas where they had not been observed for many years. For instance,
humpback whales are common in the former whaling grounds off Port
Hobron and Akutan, Alaska, where they were once heavily exploited
(Zerbini et al. 2006). The NMFS 2017 Marine Mammal Stock Assessments
for the Western and Central North Pacific regions conclude that
humpback whales are currently found throughout their historical feeding
range (Muto et al. 2018). Because ESA-listed humpback whales are
considered to occupy their entire historical range that falls within
U.S. jurisdiction, we find that there are no unoccupied areas that are
essential to their recovery and further conclude that a designation
limited to geographical areas occupied by humpback whales would be
adequate to conserve the three listed DPSs.
Specific Areas Containing the Essential Feature
To determine what areas qualify as critical habitat within the
geographical area occupied by the species, we are required to identify
``specific areas'' that contain the physical or biological features
essential to the conservation of the species (50 CFR
424.12(b)(1)(iii)). Delineation of the specific areas is done ``at a
scale determined by the Secretary [of Commerce] to be appropriate'' (50
CFR 424.12(b)(1)). Regulations at 50 CFR 424.12(c) also require that
each critical habitat area be shown on a map.
In determining the scale and boundaries for the specific areas, the
CHRT considered, among other things, the scales at which biological
data are available and the availability of standardized geographical
data necessary to map boundaries. Because the ESA implementing
regulations allow for discretion in determining the appropriate scale
at which specific areas are drawn (50 CFR 424.12(b)(1)), we are not
required to, nor was it possible to, determine that each square inch,
acre, or even square mile independently meets the definition of
``critical habitat.'' A main goal in determining and mapping the
boundaries of the specific areas is to provide a clear description and
documentation of the areas containing the identified essential feature.
This is ultimately crucial to ensuring that Federal action agencies are
able to determine whether their particular actions may affect the
critical habitat. Another goal of this effort was to delineate specific
areas in a manner that would facilitate subsequent analyses for each
humpback whale DPS under section 4(b)(2) of the ESA (e.g.,
consideration of economic impacts). See 16 U.S.C. 1533(b)(2).
Ultimately, based on a review of the best available data, the CHRT
delineated 19 specific areas along the coasts of Alaska, Washington,
Oregon, and
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California that meet the definition of critical habitat for one or more
of the three DPSs of whales (Figure 1). Each of these areas meets the
definition of ``critical habitat'' because the best available
scientific data indicate that the essential feature is present, as
evidenced by documented feeding behavior of the whales in these areas,
humpback whale sightings data, and/or presence of humpback whale prey.
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In delineating the specific areas, the CHRT applied identified
datasets in a systematic way across each region and DPS to ensure
consistency in how boundaries were determined. The approach and data
used by the CHRT are summarized here; further detail is provided in the
Draft Biological Report (NMFS 2019a). First, the CHRT considered the
humpback whale BIAs and decided that the BIAs would remain intact
within a given specific area unless there was a compelling reason to
change or divide it. As noted earlier, the humpback whale BIAs have all
been identified as ``feeding'' BIAs, which are defined as follows:
Areas and times within which aggregations of a particular
species preferentially feed. These either may be persistent in space
and time or associated with ephemeral features that are less
predictable but are located within a larger area that can be
delineated (Ferguson et al. 2015b).
As discussed in Van Parijs (2015) and Ferguson et al. (2015b), BIAs
were developed for cetacean species within all regions of the United
States through rigorous reviews of survey data and habitat models by
multiple teams of scientists. BIAs were identified to inform
regulatory, management, and conservation decision-making by NOAA, other
Federal agencies, and the public. Although the BIAs are non-regulatory,
non-binding, and were not intended to be synonymous with critical
habitat under the ESA, they were regarded by the CHRT as an important
source of the best available data and very informative to their review
of areas that meet the definition of critical habitat for humpback
whales. The CHRT was also aware that humpback whale BIAs for Alaska and
for the U.S. West Coast were developed by different teams and were
supported by very different types and levels of data, and that,
therefore, the BIAs for these two major regions were not entirely
consistent in terms of how they were ultimately drawn.
For U.S. West Coast areas (Washington, Oregon, and California), the
CHRT applied the results of a habitat model for the CCE that
incorporated 275 humpback whale sightings from seven systematic line-
transect cetacean surveys conducted in summer and fall (July-December)
between 1991-2009 (Becker et al. 2016) and a habitat model for southern
California (i.e., Units 16-19) that incorporated 53 humpback whale
sighting from 20 surveys conducted between 2005 and 2015 during winter
and spring (January- April, Becker et al. 2017). Predictions from the
summer/fall models were made for the entire U.S. West Coast from the
coast to 300 nmi offshore (the study area was approximately 1,141,800
km\2\). Predictions from the winter/spring models were made in a subset
of this region: south of 38[deg] N and east of 125[deg] W (the study
areas was approximately 385,460 km\2\.) The Becker et al. 2016 and 2017
models summarize expected humpback whale distributions in the CCE over
a long time-period and incorporate oceanographic variability observed
during the surveys.
The Becker et al. (2016 and 2017) models predicted humpback whale
abundance in approximately 10 by 10 km grid cells. Cells containing the
highest 90 percent of the predicted study area abundance were used to
help delineate the offshore extent of the specific areas. (All or 100
percent of the predicted abundance had a distribution that extended out
to and even beyond the U.S. EEZ.) The Becker et al. (2016 and 2017)
predictions also contributed to delineating the north/south boundaries
between the specific areas. As no such coast-wide habitat model is
available for Alaska, the CHRT relied on published surveys and
available sightings data. Where available, humpback whale sightings
data were mapped and overlaid with the BIAs to inform selection of
boundaries between specific areas.
For applicable habitat units, the CHRT also considered the polygons
derived from ARS data from satellite-tagged whales (Mate et al. 2018).
These polygons provided the CHRT with additional information and
support regarding where humpback whales feed and over what size area
they may feed. When considering these data, the CHRT only used polygons
representing the overlay of two or more individual whales (i.e., data
representing movements of just a single whale were not determinative of
specific area boundaries).
To determine where to draw nearshore boundaries for the specific
areas, the CHRT created depth-frequency histograms using sightings data
from multiple studies (e.g., Calambokidis et al. 2008, Zerbini et al.
2006, Baker et al. 2016). Collectively, the sightings datasets
represent results of different types of sampling efforts (e.g.,
targeted small boat surveys, systematic line-transect surveys),
different time-periods (2001-2003, 2004, 2005), and different study
locations. Rather than select any one particular data set or study over
another, the CHRT generated depth frequency histograms from all these
sightings in Alaska and for all sightings off of Washington, Oregon,
and California to delineate the shoreward boundary for critical habitat
units in each of those respective regions. Based on the depth-frequency
histograms for Alaska, the 1-m depth contour (relative to mean lower
low water (MLLW)) or a BIA boundary, whichever was closer to shore, was
selected as the nearshore boundary for the habitat units in Alaska.
Humpback whales in Alaska have frequently been observed feeding
extremely close to shore during high tide (J. Moran, AFSC, pers. comm.,
May 23, 2018), which comports with the CHRT's selection of the 1-m
depth contour (or isobath). Based on the depth frequency histograms for
the U.S. West Coast, the CHRT selected the 50-m isobaths as the
shoreward boundary for each specific area unless it clipped out a
portion of a BIA. Cases where this occurred (i.e., Units 16 and 17) and
how it was addressed are discussed in more detail in the descriptions
of each specific area.
In the following sections, we provide additional details regarding
the boundaries of each of the 19 specific areas and briefly describe
humpback whales' use of the specific area. We note that these
delineations of specific units of habitat do not necessarily represent
discrete feeding aggregations or populations of humpback whales--
individual whales generally move across many of these boundaries. More
detailed information regarding whale and prey distributions is provided
in the Draft Biological Report (NMFS 2019a).
Unit 1--Bristol Bay
This unit is bounded along the northern edge by a line extending
due west from Egegik (at 58[deg]14' N, 157[deg]28' W) to encompass the
humpback whale BIA within Bristol Bay. The boundary then extends
southwest and then southward tangentially along the BIA to the
coastline at Moffet Point (55[deg]27' N, 162[deg]35' W). The nearshore
boundary of this unit follows the 1-m isobath (relative to MLLW). This
unit covers 19,279 nmi\2\ and includes waters off Bristol Bay and Lake
and Peninsula Boroughs, and a small portion of Aleutians East Borough.
Unit 1 boundaries were drawn based largely on the location of a
humpback whale feeding BIA, which was in turn identified largely based
on results of systematic surveys reported in Clapham et al. 2012,
Friday et al. 2012, and Friday et al. 2013, indicating high densities
of humpback whales in this area (see Ferguson et al. 2015c). However,
Unit 1 extends farther into Bristol Bay relative to the BIA to reflect
sightings from 1999 aerial surveys of Bristol Bay (Friday et al. 2012)
and
[[Page 54367]]
sightings from the 2017 IWC Pacific Ocean Whale and Ecosystem Research
Program (POWER) survey (Matsuoka et al. 2018) indicating that humpback
whales may also be common in these waters. The southern, nearshore
boundary was drawn to accommodate the nearshore areas (around the 50 m
isobath) indicated by sightings reported in Friday et al. (2013). Unit
1 does not extend into the intertidal portions of northern Bristol Bay
based on the lack of detections of humpbacks in the small bays along
the coast of northern Bristol Bay (Friday et al. 2012, Matsuoka et al.
2018, and J. Moran, AFSC, pers. comm. May 23, 2018). Humpback whale
sightings collected within North Pacific right whale critical habitat
during systematic vessel and aerial surveys conducted by the National
Marine Mammal Laboratory (NMML) were considered but were not
determinative of the area's boundaries given the high intensity of
effort represented by those surveys and the resulting significant
upwards bias in the humpback whale sightings documented in this area.
Surveys conducted during 2004 and 2006-2010 within the eastern Bering
Sea and that overlapped with a portion of Unit 1, indicated widespread
and persistent concentrations of euphausiids in the survey area (Sigler
et al. 2012). Stomach content analyses and corresponding fish
distributions indicate humpback whales may also feed on various species
of schooling fish, such as capelin and sand lance, in this region
(Nemoto 1959, Ormseth 2015, Andrews et al. 2016).
Photo-identification data are not available to validate occurrences
of particular DPSs within this unit; however, the available data
suggest this area is a destination for whales from the Hawaii (HI,
which are not listed), WNP, and MX DPSs (Baker et al. 2013). Five
marked whales are also documented to have moved between this general
region and the WNP breeding grounds (Omura and Ohsumi 1964).
Unit 2--Aleutian Island Area
This unit includes waters along the northern side of Unimak Island,
waters around Umnak and Unalaska Islands, and waters within Umnak and
Unimak Pass. At its eastern edge, the northern boundary of this area
extends from 55[deg]41N/162[deg]41' W, tangentially along the northern
edge of a humpback whale BIA west out to 169[deg] 30' W. The western
boundary extends southward through Samalga Pass to the BIA boundary on
the south side of the islands, which corresponds closely to a line
drawn along the 2,000-m isobath. This southern boundary follows the
edge of the BIA and extends eastward to 164[deg]25' W. The nearshore
boundary of this unit is the 1-m isobath (relative to MLLW). This unit
includes waters off the Aleutian East and Aleutian West Boroughs. Unit
2 covers 28,829 nmi\2\ of marine habitat.
This area encompasses a humpback whale feeding BIA, which was drawn
to include high density sightings of humpback whales as reported in
Zerbini et al. 2006, Clapham et al. 2012, Friday et al. 2012, and
Friday et al. 2013 (See Ferguson et al. 2015c). Telemetry and sightings
data indicate that humpback whales use the coastal waters to the north
and south of the islands as well as within the passes (Zerbini et al.
2006, Sigler et al. 2012, Kennedy et al. 2014). The western edge of the
Unit 2, however, does not include the small portion of the BIA that
extends west of Samalga Pass. The reason why the boundary was selected
for the critical habitat unit is that this pass coincides with an
abrupt oceanographic break, and the frequency of humpback whale
sightings have been very low or absent west of Samalga Pass (Zerbini et
al. 2006; P. Wade, pers. comm., May 23, 2018). The northwestern edge of
the Unit 2 also extends slightly north of the BIA, because available
sightings data indicate humpback whales use waters north of Unimak Pass
and along the middle and outer Bering Sea shelf and slope (Calambokidis
et al. 2008, Friday et al. 2012, Friday et al. 2013, Matsuoka et al.
2018). Surveys conducted during 2004 and2006-2010 within the eastern
Bering Sea indicated widespread and persistent concentrations of
euphausiids in this area (Sigler et al. 2012), and general additive
models using environmental datasets from summers 2008-2010 for the
Eastern Bering Sea also predict relatively high levels of euphausiid
biomass occurring within this area (Zerbini et al. 2016). In addition
to targeting euphausiids, humpback whales also consume multiple fish
species occurring in this region such as capelin, sand lance, Atka
mackerel, and walleye pollock (Nemoto 1959, Ormseth 2015, 2017).
Photo-identification data indicate this area is a destination for
whales from the HI, WNP, and MX DPSs (Calambokidis et al. 2008).
Unit 3--Shumagin Islands Area
This area extends from 164[deg]25' W eastward to 158[deg]39' W and
encompasses the feeding BIA around the Shumagin Islands. The area is
bounded on its southern (offshore) edge by a line drawn along the
1,000-m isobath, which also runs along the southern edge of the BIA.
The nearshore boundary of this unit follows the 1-m isobath (relative
to MLLW). This unit is mainly within the Aleutians East Borough but
includes a small portion of the Lake and Peninsula Borough. Unit 3
covers 13,162 nmi\2\ of marine habitat.
This area was drawn from the boundary of Unit 2 eastward to
encompass an identified BIA (Ferguson et al. 2015a). This BIA is within
the 1,000-m isobath, which was selected as the offshore boundary for
this unit. Surveys conducted within this area indicate that feeding
aggregations of humpback whales consistently occur in coastal areas
south of these islands and around the Shumagin Islands (Waite et al.
1999, Witteveen et al. 2004, Zerbini et al. 2006, Wynne and Witteveen
2013), where the whales have been observed targeting dense schools of
krill (Wynne and Witteveen 2013). During the University of Alaska's
Gulf Apex Predator-Prey (GAP) Study surveys within this area, conducted
across 14 feeding seasons, 654 individual humpback whales were
identified out of 1,437 total sightings. Analyses of these sightings
indicate a fairly high degree of site fidelity to this area, with an
average annual rate of return of 37 percent (SD = 11.8%; Witteveen and
Wynne 2016a). Surveys conducted in 1985 indicated that humpback whales
were widely distributed throughout this area but were typically
observed near island complexes, the shelf break, and banks, such as
Sanak Bank, Shumagin Bank, and an additional unnamed bank, with
repeated observations of whales at both Shumagin Bank and the unnamed
bank (Brueggeman et al. 1987).
Photo-identification data indicate this area is a destination for
whales from the HI, MX, and WNP DPSs (Witteveen et al. 2004,
Calambokidis et al. 2008).
Unit 4--Central Peninsula Area
The western edge of this area extends along 158[deg]39' out to a
line corresponding to the 1,000-m isobath, which marks the offshore
boundary. The eastern boundary is at 154[deg]54' W, just east of the
Shumagin Islands. The nearshore boundary of this unit follows the 1-m
isobath (relative to MLLW). This unit is within the Lake and Peninsula
Borough. Unit 4 covers 15,026 nmi\2\ of marine habitat.
This area captures the waters between two identified feeding BIAs.
Survey data indicate that humpback whales are consistently found in
these waters (Brueggeman et al. 1989, Zerbini et al. 2006) and at least
occasionally transit between the Shumagin Island area and Kodiak Island
(5 of 171 whales; Witteveen et al. 2004). Results of systematic surveys
conducted in the
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summers of 2001, 2002, and 2003, indicate that fin whales occurred in
high densities in Unit 4, and in particular around the Semidi Islands,
relative to the adjacent areas (Units 3 and 5); while humpback whales
had the opposite distribution pattern (Zerbini et al. 2006). Brueggeman
et al. (1989) report a fairly similar pattern based on their aerial and
shipboard surveys conducted in 1985 and 1987, respectively. Although
these two whale species are often sympatric and have overlapping diets,
previous surveys and isotope analyses have provided evidence of trophic
niche partitioning between fin and humpback whales, with the latter
being more piscivorous (Wynne and Witteveen 2013, Gavrilchuk et al.
2014, Witteveen et al. 2015, Witteveen et al. 2016).
Photo-identification data demonstrate that this area is a
destination for whales from the HI and MX DPSs (Calambokidis et al.
2008). WNP DPSs whales have not been photo-identified in this area but
their presence has been inferred based on documented occurrences in the
adjacent units (i.e., Units 3 and 5).
Unit 5--Kodiak Island Area
This area includes the waters around Kodiak Island and the Barren
Islands. The western boundary runs southward along 154[deg]54' W to a
line that follows the 1,000-m isobath, and then extends eastward to a
boundary at 150[deg]40' W. The area also extends northward to the mouth
of Cook Inlet where it is bounded by a line that extends from Cape
Douglas across the inlet to Cape Adam. The nearshore boundary of this
unit follows the 1-m isobath (relative to MLLW). This unit is within
the Kodiak Island Borough but includes a small portion of the Kenai
Peninsula Borough. Unit 5 covers 17,420 nmi\2\ of marine habitat.
This area was drawn to capture the Kodiak Island BIA, as well as
documented aggregations of humpback whales around the Barren Islands
and in waters to the east of Kodiak (Rice and Wolman 1982, Zerbini et
al. 2006, Ferguson et al. 2015a, Rone et al. 2017). Waters around
Kodiak Islands have been surveyed extensively since 1999 as part of the
GAP study. Over 17 years of GAP surveys in this area, 1,187 unique
humpback whales were identified in the Kodiak region (out of 2,173
total sightings), with an average annual rate of return of 35 percent
(SD = 15.2 percent, Witteveen and Wynn 2016), indicating a high degree
of site fidelity to this area. Some inter-annual movement of whales has
also been observed between this area and lower Cook Inlet and Prince
William Sound (Waite et al. 1999, Witteveen et al. 2011). Waite et al.
(1999) estimated that only 3 to 6 percent of the Kodiak whales also
visit Prince William Sound, and the two areas are viewed as supporting
largely separate feeding groups (Waite et al. 1999, Witteveen et al.
2011). Humpback whales were also historically common in this area and
were taken in a commercial whale fishery that operated out of Port
Hobron, off the southeastern coast of Kodiak Island (Witteveen et al.
2007). While the whales occur throughout this area, they appear to be
most abundant off the northeastern and southern coastlines, and are
less frequently observed within Shelikof Strait (Zerbini et al. 2006).
Relative proportions of prey items within the humpback diet have been
shown to vary between years, but key prey targeted by the whales within
this unit include krill, capelin, juvenile pollock, sand lance
(Witteveen et al. 2012, Wright et al. 2016).
Photo-identification data demonstrate this area is a destination
for whales from the HI, MX, and WNP DPSs (Calambokidis et al. 2008).
Unit 6--Cook Inlet
This area extends from the mouth of Cook Inlet where it is bounded
by a line that extends from Cape Douglas across the inlet to Cape Adam.
The northern boundary is the 60[deg]20' N latitude line, just south of
Kalgin Island. The nearshore boundary of this unit is the 1-m isobath
(relative to MLLW). This area borders the Kenai Peninsula Borough. This
unit covers 3,366 nmi\2\ of marine habitat.
The southern boundary of this area approximates the ecological
shift between the Kodiak Island Area (Unit 5) and Cook Inlet. Unit 6
does not include the upper portions of Cook Inlet, because humpback
sightings are rare north of Kalgin Island despite extensive, routine
aerial surveys of this area for Cook Inlet beluga whales (K. Sheldon,
NMML, pers. comm., August 2, 2018). North of the Forelands, the inlet
becomes shallow and highly turbid due to deposition of glacial silt.
With its extreme tidal range, mudflats, and low visibility, the upper
inlet does not provide suitable feeding habitat for humpback whales
despite the presence of prey species (e.g., eulachon). Humpback whales
are routinely sighted in the lower portions of the inlet (NMML, unpubl.
data, 1994-2018), but the density of whales and level of site fidelity
of humpback whales to this feeding area has not been established.
Inter-annual movements of humpback whales between lower Cook Inlet and
the Kodiak Island area (Unit 5) have been observed (Witteveen et al.
2011), indicating that the whales feeding in this area do not comprise
a completely distinct feeding aggregation. Based on stable isotope
analyses of pooled skin samples collected from whales found during the
feeding season (May--December) in lower Cook Inlet, Kenai Fjords, and
Prince William Sound region, humpback whales in this area appear to
primarily consume fish species (Witteveen et al. 2011).
Photo-identification data demonstrate that HI and MX DPS whales
occur in this area (Calambokidis et al. 2008). WNP DPS whales have not
been photo-identified in this specific area; however, their presence in
this area has been inferred based on available data indicating that
humpback whales from WNP wintering areas occur in this general region
of Alaska (NMFS 2019a, Table C8).
Unit 7--Kenai Peninsula Area
This area extends eastward from 150[deg]40' W at the boundary with
Unit 5 (Kodiak Island Area) to 148[deg]31' W, and extends offshore to a
boundary marked by the 1,000-m isobath. The nearshore boundary of this
unit is the 1-m isobath (relative to MLLW). This unit measures 8,496
nmi\2\ and is within the Kenai Peninsula Borough.
This area captures the region separating the Kodiak Island and
Prince William Sound BIAs and includes feeding areas around the Kenai
Fjords. Estimated densities of humpback whales within the shelf portion
of the Navy Temporary Maritime Activities Area, which overlaps with a
portion of Unit 7, has ranged from 0.0930 in 2013 (CV = 0.74) to 0.0050
in 2015 (CV = 0.32, Rone et al. 2017). Based on results reported in
Witteveen et al. 2011, site fidelity of humpback whales to this area
can be inferred to be fairly high. Inter-annual movement of whales has
also been observed between this area and the coastal waters around
Kodiak Island (Witteveen et al. 2011). As noted previously for Unit 6,
stable isotope analyses of pooled skin samples collected from whales
found during the feeding season (May--December) in Kenai Fjords, lower
Cook Inlet, and Prince William Sound region, suggest that humpback
whales in this area primarily consume fish species (Witteveen et al.
2011).
Photo-identification data demonstrate this area is a destination
for whales from the HI and MX DPSs (Calambokidis et al. 2008).
Satellite telemetry data also indicate this is a destination for MX DPS
whales. A calf tagged off the Revillagigedo Islands in 2003, travelled
[[Page 54369]]
to the Gulf of Alaska with its mother and spent 30 days feeding on
Portlock Bank (located largely within Unit 7) until tracking ceased
(Lagerquist et al. 2008). WNP DPS whales have not been photo-identified
in this specific area, but presence of WNP DPS whales has been assumed
based on available data indicating that humpback whales from WNP
wintering areas occur within the Gulf of Alaska (NMFS 2019a, Table C8).
Unit 8--Prince William Sound Area
This area extends from 148[deg]31' W eastward to 145[deg]27' W, and
extends offshore to a boundary drawn along the 1,000-m isobath. The
nearshore boundary of this unit is the 1-m isobath (relative to MLLW).
This unit is within the Valdez-Cordova Borough and covers 8,166 nmi\2\
of marine habitat.
This area was drawn to encompass the Prince William Sound feeding
BIA (Ferguson et al. 2015a), which was identified based on studies
conducted mainly in the western and southern portions of the sound
(e.g., von Ziegesar et al. 2001, Rice et al. 2011). The BIA encompasses
the portion of this unit where humpback whale densities have been
documented to be high and where feeding aggregations have been
consistently observed. Survey effort has been very limited in the areas
outside of the BIA, especially the shelf waters. This unit was drawn to
include waters beyond the boundaries of the BIA based on the additional
sightings reported in Witteveen et al. (2011, and as detected during
SPLASH surveys) and observations reported by von Ziegesar (2013)
indicating that humpback whales move between the sound and the fiords
along the coast. Minor aggregations of humpback whales (8-13 whales)
were also observed near Middleton Island during systematic surveys
conducted in summer 1980 in the Gulf of Alaska (Rice and Wolman 1982).
Humpback whales occur year-round in Prince William Sound, but densities
are greatest during summer and fall, and decline in late December to
early January (Straley et al. 2018). Presence of humpback whales in the
sound is strongly associated with the seasonal formation of Pacific
herring aggregations (Rice et al. 2011, Straley et al. 2018, Moran and
Straley 2018). Results of surveys conducted during fall/winter of 2007-
2009 indicated that a small percentage of photo-identified whales
(under 2 percent, n = 4) overwintered in the sound (Rice et al. 2011).
Inter-annual movements of whales have been observed between the sound
and the coastal waters around Kodiak Island (Waite et al. 1999,
Witteveen et al. 2011). However, Waite et al. (1999) estimated that
only 3 to 6 percent of the Kodiak whales also visit Prince William
Sound, and the two areas are thought to support largely separate
feeding groups (Waite et al. 1999, Witteveen et al. 2011).
Photo-identification data confirm this area is a destination for
whales from the HI and MX DPSs (Baker et al. 1986, Calambokidis et al.
2008). WNP DPS whales have not been photo-identified in this specific
area; however, presence has been assumed based on available data
indicating that humpback whales from WNP wintering areas occur in the
Gulf of Alaska (NMFS 2019a, Table C8).
Unit 9--Northeastern Gulf of Alaska
This area extends from 145[deg]27' W to 139[deg]24' W and to an
offshore drawn along the 1,000-m isobath. The nearshore boundary of
this unit is the 1-m isobath (relative to MLLW). This unit mainly
borders Yakutat Borough, but also borders a small portion of Valdez-
Cordova. Unit 9 covers 9,065 nmi\2\ of marine habitat.
This area was drawn to capture a section of the Gulf of Alaska
between two feeding BIAs (in Units 8 and 10). Surveys within this unit
have been relatively limited. Surveys conducted in June-August of 1980
by Rice and Wolman (1982) indicated that humpback whales were sparsely
distributed in the Gulf of Alaska (populations were still depleted),
but they noted minor aggregations of humpback whales in Yakutat Bay (13
whales). More recently, 21 groups (33 individuals) of humpbacks were
sighted in this area during an IWC-POWER survey in July/August of 2012
(Matsuoka et al. 2013). Sightings of humpback whales were also recorded
in this area by the NMFS Southwest Fisheries Science Center (SWFSC) as
part of the SPLASH surveys in 2004 and 2005 (Calambokidis et al. 2008;
see also Witteveen et al. 2011). Based on limited sampling, results of
stable isotope analyses suggest that whales in this area have a mixed
diet of fish and zooplankton (Witteveen et al. 2011).
Photo-identification data confirm this area is a destination for
whales from the non-listed HI DPS (Baker et al. 1986, Calambokidis et
al. 2008; and SPLASH data courtesy of C. Gabriele, NPS). Satellite
telemetry data indicate this area is also a destination for MX DPS
whales. A calf tagged off Socorro Island (in Revillagigedo Archipelago)
in 2003 travelled with its mother to this area (Lagerquist et al.
2008). (The mother/calf pair remained in this area for only about 4
days before travelling to other areas of Alaska (Lagerquist et al.
2008).) There are no reported sightings of photo-identified whales of
the WNP DPS in this specific area; however, presence of these whales
has been assumed based on available data suggesting that humpback
whales from WNP wintering areas could occur in this general region
(NMFS 2019a, Table C8). Given the increased distance of this unit from
other confirmed sighting of whales from the WNP DPS, there is greater
uncertainty regarding whether WNP DPS whales occur in this unit.
Unit 10--Southeastern Alaska
This area extends from 139[deg]24' W, southeastward to the U.S.
border with Canada and encompasses a humpback whale BIA. The area also
extends offshore to a boundary drawn along the 2,000-m isobath, which
corresponds to the offshore extent of the BIA. The nearshore boundary
of this unit also corresponds to the BIA boundary. This unit borders
unorganized boroughs, but includes water off of Skagway-Hoonah-Angoon,
Haines, Juneau, Sitka, Petersburg, Wrangell, and Ketchikan Gateway.
Unit 10 covers 22,152 nmi\2\ of marine habitat.
This area was drawn to encompass well established feeding grounds
in southeast Alaska and an identified feeding BIA (Andrews 1909, Baker
et al. 1985, Straley 1990, Dahlheim et al. 2009, Ferguson et al.
2015a). Humpback whales occur year-round in this unit, with highest
densities occurring in summer and fall (Baker et al. 1985, 1986).
Periods of occupancy of over 100 days have been reported for a
significant portion of the whales using this area (Baker et al. 1985).
Based on sighting data for summer months during 1985-2014 in Glacier
Bay and Icy Strait, over 60 percent of the adult whales remained in
this area to feed for more than 20 days, and average residency time for
whales seen on more than 1 day within a season was 67 days (SD = 38.3;
Gabriele et al. 2017). Photo-identification data collected in Southeast
Alaska from 1979 to 1983 indicate a high degree of site fidelity to
this area, with 47.2 percent of whales being sighted in more than one
year (154 whales out of 326 unique individuals; Baker et al. 1986).
Sightings histories for three female humpback whales in particular
indicate these whales returned in each of 12 or 13 years during 1977-
1992 (Straley et al. 1994). Evaluation of sighting histories in Glacier
Bay and portions of Icy Strait from 1985 to 2013 also indicate a high
degree of site fidelity with 63 percent (244 of 386 total whales
identified) of non-calves returning to the survey area in more than 1-
year, 17 percent (n = 66) returning every year, and an additional 10
percent (n = 39) returning in all but
[[Page 54370]]
1 year (Gabriele et al. 2017). Humpback whales are known to feed on
krill, herring, capelin, sand lance, myctophids, and juvenile pollock
within Southeast Alaska, but dominant prey within the diet vary among
the specific locations and seasons (Bryant et al. 1981, Straley et al.
2018).
Photo-identification data confirm this area is a destination for
whales from the HI and MX DPSs (Baker et al. 1985, 1986; Calambokidis
et al. 2008). Although sightings of WNP DPS whales are reported for
general areas to either side of this unit (Kodiak, Alaska and Vancouver
Island, British Columbia, e.g., Calambokidis et al. 2001), portions of
Unit 10 have been surveyed extensively, and those survey data do not
indicate that the WNP DPS occurs in Unit 10.
Unit 11--Coastal Washington
This area extends southward from the U.S. EEZ to 46[deg]50' N, just
north of Willapa Bay, WA. The unit extends offshore to a boundary
corresponding to the 1,200-m isobath, which also aligns with the
seaward extent of a BIA. The unit includes waters within the U.S.
portion of the Strait of Juan de Fuca to an eastern boundary line at
Angeles Point (123[deg]33' W). The 50-m isobath forms the shoreward
boundary. The unit includes waters off Clallam and Jefferson Counties,
and a portion of Grays Harbor County. Unit 11 covers 3,441 nmi\2\ of
marine habitat.
This area was drawn to encompass the Northern Washington BIA
(Calambokidis et al. 2015), located at the northern edge of this unit,
and cells containing the highest 90 percent of the study area abundance
predicted by the Becker et al. (2016) habitat model. The BIA typically
supports humpback whale feeding aggregations from May to November. In
addition to the habitat model results, clusters of humpback whale
sightings just off Grays Harbor area (see Calambokidis et al. 2015) and
movement data collected from five humpback whales with LIMPET satellite
tags (Schorr et al. 2013) support inclusion of waters beyond the BIA in
this unit. The unit also includes waters within the Strait of Juan de
Fuca where whales have been observed foraging in recent years (and
which falls outside of the area covered by surveys used to generate the
habitat model predictions). Although humpback whales have been
increasingly observed within the Salish Sea (i.e., the waters of the
Strait of Georgia, the Strait of Juan de Fuca, Puget Sound, and around
the San Juan Islands, Calambokidis et al. 2017), Unit 11 does not
extend beyond the strait farther into the Salish Sea. High reporting
rates from areas within the Salish Sea have likely resulted in a biased
understanding of humpback whale abundance in these waters; however,
hundreds of whales appear to be using the strait (J. Calambokidis, CRC,
pers. comm., May 23, 2018). The offshore boundary for Unit 11 was
selected to follow the contour of cells containing the highest 90
percent of the study area abundance predicted by the Becker et al.
(2016) habitat model, which generally coincided with the 1,200-m
isobath. Multiple, persistent, dense aggregations (hotspots) of krill
(humpback prey) occur near the Juan de Fuca canyon in this area, likely
due to the canyon feature (Santora et al. 2018). Humpback whales have
also been shown to associate with the shelf edge, particularly near
submarine canyons off Washington (Green et al. 1992). Humpback whales
also target various forage-fish species within this unit, with Pacific
herring being one of the most prevalent forage fish off Washington and
Northern Oregon (Brodeur et al. 2005, Zwolinski et al. 2012).
Photo-identification data confirm this area is a destination for
whales from the HI, MX, and Central America (CAM) DPSs (Calambokidis et
al. 2008).
Unit 12--Columbia River Area
This area extends southward from 46[deg]50' N to 45[deg]10' N and
extends out to a seaward boundary corresponding to the 1,200-m isobath.
The 50-m isobath forms the shoreward boundary. This area includes
waters off of Pacific County, WA and Clatsop County, OR. This unit
covers 3,636 nmi\2\ of marine habitat.
This unit was drawn to capture the Columbia River plume system,
which supports foraging by many predators, including concentrations of
humpback whales. The unit extends both north and south of the mouth of
the Columbia River to capture the spatial variation of the plume
system. Within this unit, as well as others along the West Coast,
hotspots with persistent, heightened abundance of krill also occur in
association with submarine canyons (Santora et al. 2018). The area
extends out to the 1,200-m isobath to capture the outer edge of cells
containing the highest 90 percent of the study area abundance predicted
by the Becker et al. (2016) habitat model. The area also encompasses
areas over which humpback whales have been observed to feed based on
ARS data from satellite tagged whales (Mate et al. 2018). The southern
boundary at 45[deg]10' N was drawn to encompass the available ARS areas
and to reflect where the habitat model predictions begin to shift
farther offshore.
Photo-identification data are not available to validate occurrences
of particular DPSs within this unit; however, the best available data
support a conclusion that this area is a destination for whales from
the MX and CAM DPSs (Calambokidis et al. 2000). Some available data
also suggest that HI DPS whales may occur in this unit (Mate et al.
2018).
Unit 13--Coastal Oregon
This area extends southward from 45[deg]10' latitude to 42[deg]10',
and extends offshore to a boundary at the 1,200-m isobath. The 50-m
isobath forms the shoreward boundary. This area includes the BIA at
Stonewall and Heceta Bay, and includes waters off of Tillamook,
Lincoln, Lane, Douglas, Coos, and Curry Counties. Unit 13 covers 5,750
nmi\2\ of marine habitat.
This unit includes the Stonewall and Heceta Bank BIA, which
supports humpback whale feeding aggregations from May to November
(Calambokidis et al. 2015). The northern and offshore boundaries of
this unit correspond to cells containing the highest 90 percent of the
study area abundance predicted by the Becker et al. (2016) habitat
model. The southern boundary of this unit was drawn just north of
another BIA. Based on surveys conducted in spring and summer of 2000 as
part of the US Global Ocean Ecosystem Dynamics (GLOBEC) Northeast
Pacific program, concentrations of humpback whales on Heceta Bank were
shown to correspond to high densities of fish (Pacific sardine and
juvenile salmon) and large, high density patches of krill (Tynan et al.
2005, Ressler et al. 2005). Within this unit, large, persistent
aggregations of krill have been observed inshore of Heceta Bank, off
Cape Blanco, in association with submarine canyons (Ressler et al.
2005, Santora et al. 2018).
Photo-identification data confirm this area is a destination for
whales from the MX DPS (Calambokidis et al. 2008). Presence of CAM DPS
whales in this area is indicated by genetic data as well as modelling
of sightings data (Wade 2017, Mate et al. 2018).
Unit 14--Southern Oregon/Northern California
This area is bounded in the north at 42[deg]10' and extends south
to the Mendocino escarpment at 40[deg]20'. The area extends offshore to
a boundary drawn along the 2,000-m isobath. The 50-m isobath forms the
shoreward boundary. The area includes the marine waters off Del Norte
County, CA, and most of Humboldt County, CA, and
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borders a small portion of Curry County, OR. Unit 14 covers 3,412
nmi\2\ of marine habitat.
This unit includes the Point St. George BIA, which typically
supports whale feeding aggregations during July-November (Calambokidis
et al. 2015). The northern boundary of this unit corresponds to the
boundary of this BIA. The southern boundary corresponds with the Cape
Mendocino/the Mendocino escarpment, where the predicted abundance from
the habitat model shows a somewhat abrupt shift offshore (Becker et al.
2016). The seaward boundary for this unit extends out to the 2,000-m
isobath to capture the habitat model predictions. ARS areas derived
from satellite tracking data (n = 26 whales, Mate et al. 2018) indicate
that feeding behavior occurs throughout this unit, and although some
ARS data indicate whales feed seaward of the 2,000-m isobath, the
majority of the ARS behavior is captured within the boundaries of this
unit. Multiple, recurring, high density aggregations (hotspots) of
krill occur off of Cape Mendocino and elsewhere in this unit, in
association with submarine canyons (Santora et al. 2018). Within this
unit and southward along the coast to Southern California (i.e., Unit
19), Fleming et al. (2016) collected 259 skin samples from humpback
whales during 1993-2012 and used stable carbon and nitrogen isotope
analyses to evaluate the relative contribution of euphausiids versus
fish to the diet. Shifts over the 20-year study period in isotope
signatures in whale skin samples observed by Fleming et al. (2016)
indicate trophic-level shifts in the humpback whale diet, and these
shifts corresponded to shifts in relative prey abundance (krill versus
anchovy and sardine) and changing oceanographic conditions within the
CCE. These results suggest that the dominant prey in humpback whale
diet switched from krill to fish, and back to krill during the 20-year
period, depending on the relative abundance of each prey. Temporal
shifts in diet composition (e.g., from euphausiids and sardine in the
1920s to mainly anchovy in the 1950s and 1960s) are also reflected in
historical whaling data and stomach content data from harvested whales
(Rice 1963, Clapham et al. 1997).
Photo-identification data confirm this area is a destination for
whales from the MX and CAM DPSs (Calambokidis et al. 2008).
Unit 15--California North Coast Area
This unit is bounded along its northern edge by the Mendocino
escarpment at approximately 40[deg]20' N and extends southward to
38[deg]40' N, which corresponds to the approximate southern boundary of
an identified BIA. The area extends offshore to a boundary drawn at the
3,000-m isobath. The 50-m isobath forms the shoreward boundary. This
area includes marine waters off the coasts of Humboldt and Mendocino
counties, CA, and covers 4,898 nmi\2\ of marine habitat.
The northern boundary of this unit corresponds to the Mendocino
escarpment and a shift farther offshore in the habitat model
predictions (Becker et al. 2016). The offshore boundary of this unit
extends out to the 3,000-m isobath to more closely correspond to cells
containing the highest 90 percent of the study area abundance predicted
by the Becker et al. (2016) habitat model. This boundary is also
supported by ARS data indicating that whales are feeding farther from
shore (Mate et al. 2018). Encompassed within this unit is a BIA that
extends from Fort Bragg to Point Arena and that typically supports
feeding aggregations of humpback whales from July to November
(Calambokidis et al. 2015). The southern boundary of the unit
corresponds to the northern boundary of another BIA. High-density,
persistent aggregations of krill occur off Cape Mendocino and in
association with canyon features within this unit (Santora et al.
2018). Krill hotspots, measuring about 216-320 km\2\, have also been
documented offshore of Point Arena near the 2,000-m isobath (Santora et
al. 2011, Dorman et al. 2015).
Photo-identification data are not available to validate occurrences
of particular DPSs within this unit; however, the available data
strongly support the conclusion that this area is a destination for
whales from the MX and CAM DPSs (Calambokidis et al. 2000).
Unit 16--San Francisco and Monterey Bay Area
This area extends from 38[deg]40' N southward to 36[deg]00' N to
encompass a BIA. The seaward boundary is drawn along the 3,700-m
isobath. The inshore boundary is mainly defined by the 15-m isobath,
but also extends up to the Golden Gate Bridge within San Francisco Bay.
This area includes waters off of the southern edge of Mendocino County,
and Sonoma, Marin, San Francisco, San Mateo, Santa Cruz, and Monterey
counties. Unit 16 covers 12,349 nmi\2\ of marine habitat.
This unit encompasses the Gulf of the Farallones-Monterey Bay BIA
(Calambokidis et al. 2015) as well as cells containing the highest 90
percent of the study area abundance predicted by the Becker et al.
(2016) habitat model. In this unit, the habitat model predictions
extend farther offshore relative to the more northern West Coast units,
and extend even farther offshore based on modeled whale distributions
in colder months (January-April, see Becker et al. 2017). Therefore,
the offshore boundary was placed at the 3,700-m isobath to capture
areas of higher predicted abundances in both summer and winter. (The
area covered by the Becker et al. (2017) winter model starts at
38[deg]00', and we are not aware of any other models based on winter
distributions for areas north of this unit.) This area also extends
into the mouth of the San Francisco Bay to capture a recently
recognized important foraging area for humpback whales (Calambokidis et
al. 2017) as well as ARS data indicating that whales are feeding in and
around the mouth of the bay (Mate et al. 2018). The highest densities
of whales are seen at the entrance to San Francisco Bay, with a few
extending into the Bay (J. Calambokidis pers. comm., May 23, 2018).
Based on data from hydroacoustic surveys spanning multiple years
between 2000-2009, persistent and recurring, high-density aggregations
of krill ranging in size from about 578 km\2\ to 950 km\2\ have been
shown to occur in multiple areas within this unit, including Bodega
Head, Cordell Bank, Gulf of the Farallones, Pescadora, and Monterey Bay
(Santora et al. 2011, Dorman et al. 2015, Santora et al. 2018).
Photo-identification data confirm this area is a destination for
whales from the MX and CAM DPSs (Baker et al. 1986, Calambokidis et al.
2008).
Unit 17--Central California Coast Area
This area extends from 36[deg]00' N to a southern boundary at
34[deg]30' N, just south of an identified BIA. The nearshore boundary
is defined by the 30-m isobath, and the seaward boundary is drawn along
the 3,700-m isobath. This unit includes waters off of southern Monterey
county, and San Luis Obispo and Santa Barbara counties. Unit 17 covers
6,697 nmi\2\ of marine habitat.
This unit encompasses a BIA that extends from Morro Bay to Point
Sal and typically supports high density feeding aggregations of
humpback whales from April to November (Calambokidis et al. 2015). In
this area, as with Unit 16, the predicted abundance extends farther
offshore in the warmer months (July-December) and even more so in
cooler months (January-April) relative to the northern units (Becker et
al. 2016 and 2017).
[[Page 54372]]
Therefore, the offshore boundary was placed at the 3,700-m isobath to
capture areas of higher predicted abundance in both summer and winter.
The southern boundary for this area was drawn just south of the BIA.
Based on acoustic survey data collected during 2004-2009, large krill
hotspots, ranging from 700 km\2\ to 2,100 km\2\, occur off Big Sur, San
Luis Obispo, and Point Sal (Santora et al. 2011). Hotspots with
persistent, heightened abundance of krill were also reported in this
unit in association with bathymetric submarine canyons (Santora et al.
2018).
Photo-identification data confirm this area is a destination for
whales from the MX and CAM DPSs (Calambokidis et al. 2008).
Unit 18--Channel Islands Area
This area extends from a northern boundary at 34[deg]30' N to a
boundary line that extends from Oxnard, CA seaward to the 3,700-m
isobath, along which the offshore boundary is drawn. The 50-m isobath
forms the shoreward boundary. This unit includes waters off of Santa
Barbara and Ventura counties. This unit covers 9,799 nmi\2\ of marine
habitat.
This unit encompasses the Santa Barbara Channel-San Miguel BIA,
which supports high density feeding aggregations of humpback whales
during March through September (Calambokidis et al. 2015). The seaward
boundary at the 3,700-m isobath encompasses cells containing the
highest 90 percent of the study area abundance predicted by both the
summer and winter habitat models (Becker et al. 2016 and 2017). The
southern boundary of this unit was selected to correspond to where the
habitat model predictions for both models show a clear decline in
predicted densities. The area to the south (i.e., Unit 19) is predicted
to have much lower summer densities of whales. Based on acoustic survey
data collected during 2004-2009, a krill hotspot of about 780 km\2\ has
been documented off Point Conception (Santora et al. 2011). Some
additional krill hotspots have also been observed in this unit in
association with bathymetric submarine canyons (Santora et al. 2018).
Photo-identification data confirm this area is a destination for
whales from the MX and CAM DPSs (Calambokidis et al. 2008).
Unit 19--California South Coast Area
The northern boundary for this unit extends southwest from Oxnard,
CA through the Santa Cruz Basin and out to a seaward boundary along the
3,700-m isobath. The unit is also bounded in the south by the U.S. EEZ.
The 50-m isobath forms the shoreward boundary. This unit includes
waters off of Los Angeles, Orange, and San Diego counties, and covers
12,966 nmi\2\ of marine habitat.
This area does not contain a BIA but was drawn to capture cells
containing the highest 90 percent of the study area abundance predicted
by the Becker et al. (2017) habitat model. This area falls outside of
the predicted high use area in the summer/fall months but is predicted
to support high densities of whales in the winter/spring months (Becker
et al. 2017). The higher densities of humpback whales in winter may
stem from the fact that some of the whales sighted in this area are
likely transiting through the area, rather than occupying the area as a
feeding destination. Within this unit, krill hotspots ranging in size
from about 210 km\2\-430 km\2\ have been observed off San Nicolas and
Santa Barbara Islands (Santora et al. 2011), and additional hotspots
have been observed in association with submarine canyons (Santora et
al. 2018).
Photo-identification data are not available to validate occurrences
of particular DPSs within this unit; however, the available data
support the conclusion that this area is a destination for whales from
the MX and CAM DPSs (Calambokidis et al. 2000, Rasmussen et al. 2012).
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B)(i) of the ESA precludes designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense (DOD) or designated for its use, that are
subject to an Integrated Natural Resources Management Plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation. See
16 U.S.C. 1533(a)(3)(B)(i); 50 CFR 424.12(h). Where these standards are
met, the relevant area is ineligible for consideration as potential
critical habitat. The regulations implementing the ESA set forth a
number of factors to guide consideration of whether this standard is
met, including the degree to which the plan will protect the habitat of
the species (50 CFR 424.12(h)(4)). This process is separate and
distinct from the analysis governed by section 4(b)(2) of the ESA,
which directs us to consider the economic impact, the impact on
national security, and any other relevant impact of designation and
affords the Secretary discretion to exclude particular areas if the
benefits of exclusion outweigh the benefits of inclusion of such areas.
See 16 U.S.C. 1533(b)(2).
After identifying specific areas that we concluded would
potentially meet the definition of critical habitat for humpback
whales, we contacted DOD representatives and requested information
regarding relevant INRMPs. In response, the U.S. Navy (Navy) provided
descriptions and locations of four areas adjacent to the humpback whale
specific areas and that are managed under Sikes Act-compliant INRMPs:
(1) Pacific Beach Annex, WA; (2) Naval Base Ventura County, Point Mugu,
CA; (3) Naval Outlying Field, San Nicolas Island, CA; and (4) Naval
Auxiliary Landing Field, San Clemente Island, CA. The Navy also
provided information regarding how in their view, each of their
approved INRMPs provides a conservation benefit to humpback whales and
their habitat. An additional fifth INRMP, associated with the Navy's
Southeast Alaska Acoustic Measurement Facility, AK (SEAFAC) was
mentioned as being under development. The SEAFAC INRMP is not yet
available for review; however, a draft is expected to be completed in
December 2019. After reviewing the information and maps provided, we
found that the Pacific Beach Annex INRMP addresses an entirely upland
property and does not overlap with the areas under consideration for
designation as critical habitat. Therefore, this INRMP was not
considered further.
Based on our initial review of the remaining three, approved, Navy
INRMPs pursuant to the considerations indicated in 50 CFR 424.12(h),
the plans appeared to provide a measure of conservation benefit to
humpback whales. However, because each of the areas addressed by the
INRMPs were very small relative the potential critical habitat units in
which they are located (Units 18 and 19), and because a few additional
components of the approved INRMPs were required from the Navy to
complete our review (e.g., maps, appendices to an INRMP listing
specific management activities), we deferred further review of these
INRMPs pending conclusion of our analyses under section 4(b)(2),
because that analysis could lead to proposed exclusion of the larger
specific area or areas. Once we concluded our analysis under section
4(b)(2) and had developed our list of potential exclusions, we
ultimately found it necessary to complete a final review of only two
INRMPs--the Naval Outlying Field San Nicolas Island (SNI) and Naval
Base Ventura County (NBVC), Point Mugu. These are not fully
[[Page 54373]]
encompassed by areas that we are proposing to exclude under 4(b)(2).
The relevant areas addressed under the NBVC Point Mugu INRMP are
submerged lands and resources 3 nmi out from Point Mugu (relative to
MLLW) and a zone that extends 0.25 nmi offshore around San Miguel and
Prince Islands. This INRMP thus includes areas that overlap with Units
18 (i.e., the area around San Miguel and Prince Islands) and 19 (i.e.,
the area off Point Mugu). Relevant areas within the footprint of the
SNI INRMP are the waters surrounding SNI and Begg Rock within the 300-
foot (91-m) isobath or 1 nmi from shore, whichever is greater. This
INRMP covers an area that lies mainly within Unit 19, but the area
around Begg Rock extends into Unit 18. Management efforts described
within both of these INRMPs, which are discussed in detail in the Draft
Section 4(b)(2) Report (NMFS 2019b), include actions such as water
quality monitoring within nearshore waters and storm-water management;
surveys of intertidal, subtidal, and deep water habitats; and area
closures to minimize impacts of noise or other disturbances on marine
mammals. Based on our consideration of the activities listed in the
INRMPs and their relevance to humpback whales and their habitat, the
certainty that the relevant management actions would be implemented,
the frequency of use of the areas by humpback whales, and the extent of
humpback prey occurrences within the areas, we ultimately concluded
that the areas covered by the applicable INRMPs provide a conservation
benefit to humpback whales. Thus, we determined that these areas are
not eligible for designation as critical habitat and removed them from
Units 18 and 19.
Analysis of Impacts Under Section 4(b)(2) of the ESA
The first sentence of section 4(b)(2) of the ESA requires the
Secretary to designate critical habitat for threatened and endangered
species on the basis of the best scientific data available 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. Regulations at 50 CFR 424.19(b) also specify
that the Secretary will consider the probable impacts of the
designation at a scale that the Secretary determines to be appropriate,
and that such impacts may be qualitatively or quantitatively described.
The Secretary is also required to compare impacts with and without the
designation (50 CFR 424.19(b)). In other words, we are required to
assess the incremental impacts attributable to the critical habitat
designation relative to a baseline that reflects existing regulatory
impacts in the absence of the critical habitat.
The second sentence of section 4(b)(2) describes an optional
process by which, the Secretary may go beyond the mandatory
consideration of impacts and weigh the benefits of excluding any
particular area (that is, avoiding the economic, national security, or
other relevant impacts) against the benefits of designating it
(primarily, the conservation value of the area). If the Secretary
concludes that the benefits of excluding particular areas outweigh the
benefits of designation, he may exclude the particular area(s), so long
as he concludes on the basis of the best available scientific and
commercial information that the exclusion will not result in extinction
of the species (16 U.S.C. 1533(b)(2)). NMFS and the U.S. Fish and
Wildlife Service have adopted a joint policy setting out non-binding
guidance explaining generally how we exercise our discretion under
4(b)(2). See Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (``4(b)(2) Policy,'' 81 FR 7226, February 11,
2016).
While section 3(5) of the ESA defines critical habitat as
``specific areas,'' section 4(b)(2) requires the agency to consider the
impacts of designating any ``particular area.'' Depending on the
biology of the species, the characteristics of its habitat, and the
nature of the impacts of designation, ``particular'' areas may be--but
need not necessarily be--delineated so that they are the same as the
already identified ``specific'' areas of potential critical habitat.
For this designation, we analyzed two types of particular areas. When
we considered economic impacts, we used the same biologically-based
``specific areas'' we had identified under section 3(5)(A) (i.e., Units
1-19, Figure 1). This delineation allowed us to most effectively
compare the biologically-based conservation benefits of designation
against economic benefits of exclusion, which we elected to do, and led
us to propose excluding some units. For our consideration of impacts on
national security, however, we instead used a delineation of particular
areas based on DOD ownership or control of the area. As discussed
below, this consideration of national security impacts led in some
cases to propose excluding smaller areas from within the specific areas
(units) we described, i.e., redrawing the boundaries of those units.
Similarly, for our consideration of other relevant impacts, such as the
impacts designation of a particular area would have on Tribes, we used
a delineation of particular areas that corresponded to tribal lands,
associated treaty rights, and/or relevant resources.
Below, we summarize the economic, national security, and other
relevant impacts of designating the areas identified as meeting the
definition of critical habitat for the three DPSs of humpback whales.
Additional detail is provided in the Draft Economic Analysis (IEc
2019a) and the Draft Section 4(b)(2) Report (NMFS 2019b).
National Security Impacts
To gather information on potential national security impacts of our
proposed designation, we contacted representatives from DOD and the
Department of Homeland Security (DHS) by letter dated October 9, 2018.
We asked for information regarding impacts of a potential critical
habitat designation for humpback whales on military operations and
national security. Under the 4(b)(2) Policy, a requesting agency must
provide a reasonably specific justification for the assertion that
there is an incremental impact on national security that would result
from the designation of that specific area as critical habitat (81 FR
7226, 7231, February 11, 2016). Requests for exclusion due to national
security impacts were initially received from the both the Navy and the
U.S. Air force (USAF); however, following subsequent discussions with
USAF representatives, the USAF withdrew their requests for exclusions.
On December 5, 2018, the Navy provided a written assessment of
potential national security impacts and detailed descriptions of
training and testing operations occurring in the following ranges:
(1) Gulf of Alaska Temporary Maritime Activities Area (GOA TMAA),
which overlaps with portions of critical habitat Units 5, 7, and 8;
(2) Southeast Alaska Acoustic Measurement Facility (SEAFAC), which
lies within critical habitat Unit 10;
(3) Quinault Range Site (QRS; a component of the Naval Undersea
Warfare Center Division Keyport Range Complex), which overlaps with a
portion of Unit 11;
(4) Pacific Northwest Ocean Surface/Subsurface Operating Area
(OPAREA, a component of the Northwest Training Range Complex and within
the Northwest Training and Testing Study Area), which overlaps with
portions of Units 11-15;
(5) Southern California Range Complex (SOCAL) portion of the
Hawaii-Southern California Training and Testing Study Area, which
overlaps with Unit 19; and,
[[Page 54374]]
(6) Point Mugu Sea Range (PMSR), which overlaps with portions of
Unit 17, 18, and 19.
Based on their consideration of ongoing and planned Naval
operations, the location of the potential critical habitat areas, and
the essential prey feature, the Navy concluded that, at this time, they
did not anticipate national security impacts resulting from a critical
habitat destination that overlapped with the GOA TMAA, OPAREA, and
PMSR. The Navy indicated that there were, however, anticipated national
security impacts for operations at SEAFAC, QRS, and SOCAL, and
requested that these range areas be excluded from any proposed humpback
whale critical habitat designation.
SEAFAC is small area, covering 48 nmi\2\ (164 km\2\) in the Western
Behm Canal near the city of Ketchikan, Alaska, and serves as the Navy's
primary acoustic engineering measurement facility in the Pacific. This
facility comprises an instrumented site that has in-water assets (such
as piers, hydrophones, sensors, and in-water communication systems)
that may be deployed on permanent or long-term bases, and an adjacent
land-based support site located within 15 acres (0.06 km\2\) on Back
Island. This area is under Navy controlled restricted use, and no other
Federal activities are expected to occur in this area. Public access to
SEAFAC areas can be restricted by the Navy with notification in
accordance with 33 CFR 334.1275. Testing activities planned for the
foreseeable future include, but are not limited to, submarine sonar
testing/maintenance, acoustic component testing, countermeasure
testing, and hydrodynamic and submarine maneuverability testing.
Although the Navy indicated they did not anticipate impacts to humpback
whale critical habitat or humpback whale prey as a result of the
majority of current testing activities, they expressed concern
regarding future testing activities. They specifically noted that this
area is used to evaluate cutting edge systems and platforms, which
could affect future determinations regarding impacts on the habitat.
The Navy discussed that the nature of the testing that is undertaken at
this site requires prescriptive procedures and use of specific areas
and that any additional mitigation resulting from a critical habitat
designation has the potential to impact military readiness by impeding
the testing of new systems, platforms, and capabilities. The Navy
stated that any impact on the full utilization of SEAFAC would impact
their ability to perform critical research, development, test and
evaluation activities, thereby impacting military readiness and
national security.
The QRS is a defined space off the coast of Washington that
encompasses air, surface (~5,228 nmi\2\ (6,924 km\2\)) and subsurface
space (with variable depths up to 1.8 km), as well as a surf zone area
off the coast of Pacific Beach, Washington. The Navy does not own or
outright control the sea space of QRS, which is largely defined by the
boundaries of the special use airspace, known as W-237A, above it. The
Navy has internal control of subareas for scheduling purposes only. The
Navy issues notices to mariners (NOTMARs) when the Navy engages in
activities that may be hazardous to vessels engaged in innocent
passage, and/or recreational and commercial activities. Compliance with
NOTMARS are voluntary, but help to protect public safety and prevent
damage to test equipment. The QRS overlaps with approximately 44
percent of Unit 11, which covers an area of 3,441 nmi\2\ of marine
habitat. Access to areas within the QRS is controlled during testing
events for public safety and to prevent damage to test equipment.
Activities planned in the QRS to the year 2020 and beyond include
activities such as at-sea sonar testing, anti-submarine warfare
testing, acoustic and oceanographic research, countermeasure testing,
torpedo testing, undersea warfare testing, etc. The Navy stated that
use of explosives within the QRS is likely to have adverse effects on
humpback prey species, although in their view these would not have
effects at the population level. The Navy concluded that humpback whale
critical habitat would impact the ability of the Navy to test and field
new systems and platforms and thus impact national security if ESA
section 7 consultations resulted in additional mitigation requirements
or restrictions on testing activities in the QRS.
Subsequent to their initial request for exclusion of QRS, the Navy
conducted further analysis and, in September 2019, submitted additional
information relative to this particular national security exclusion.
Specifically, the Navy requested that an additional 5.4-nmi (10-km)
buffer around QRS be excluded to avoid impacts to ongoing and future
testing activities that would result should Naval Sea Systems Command
have to halt, reduce in scope, or geographically/seasonally constrain
testing activities to prevent adverse effects or adverse modification
of critical habitat. The Navy determined that sound and energy levels
that may cause injuries to humpback whale prey species within critical
habitat from the largest explosives that could be used on the range
could extend beyond the QRS boundaries, and that excluding a buffer of
10-km around QRS from the critical habitat designation would avoid
additional mitigation requirements. The Navy indicated that they
determined this specific buffer distance after taking into account the
site specific oceanographic conditions and the best available science
establishing fish injury thresholds (which Navy cited as Popper et al.,
2014).
The SOCAL range complex is located between Dana Point and San
Diego, CA and extends more than 1,111 km southwest into the Pacific
Ocean. Most activities occur within the eastern portion of the SOCAL
range complex, closer to shore and to the Navy's largest homeport
location in the Pacific. The spatial extent of overlap between the
SOCAL range and Unit 19 is 10,731.5 nmi\2\ (36,808 km\2\), which is
approximately 54 percent of the Navy's core training area within SOCAL
and approximately 83 percent of Unit 19, which measures 12,966 nmi\2\
(44,472.1 km\2\). A wide variety of training and testing activities
occur within the SOCAL range complex on a routine and sometimes fairly
high frequency basis. A few types of Navy testing activities in this
area are those related to anti-submarine warfare, torpedo, mine
countermeasure, gun, missile and rocket, and propulsion testing. The
activities that occur in the SOCAL range complex have the potential to
impact the water surface or water column, with the degree of impact
depending on the nature of the particular activity. The Navy referred
to the detailed discussions on particular impacts provided in the
Navy's 2018 Final Environmental Impact Statement for Hawaii-Southern
California Training and Testing. Ultimately, the Navy concluded that
designation of Unit 19 as critical habitat could lead to requirements
for additional mitigations (avoidance, limitations, etc.) that could
hinder Navy testing and training activities, and thereby impact
military readiness and national security. Therefore, Navy requested
that we exclude Unit 19 from any critical habitat designation.
Economic Impacts
The primary impact of a critical habitat designation stems from the
ESA section 7(a)(2) requirement that Federal agencies ensure their
actions are not likely to result in the destruction or adverse
modification of critical habitat. Determining the extent of this impact
in practical terms is complicated by the fact that section 7(a)(2)
contains the
[[Page 54375]]
associated but distinct requirement that Federal agencies must also
ensure their actions are not likely to jeopardize the species'
continued existence. The incremental economic impacts of a critical
habitat designation stem from the additional effort to engage in
consultation regarding potential adverse effects to the critical
habitat as part of section 7 consultations (often referred to as
administrative costs), and any conservation measures that may be
necessary to avoid adverse modification and that would not otherwise be
implemented (often referred to as project modification costs). Thus,
the incremental impacts attributable to critical habitat stem from
conservation efforts that would not already be required due to the need
to avoid jeopardy to humpback whales or due to other existing
protections (e.g., for other listed species, other Federal, state, or
local regulations). Additional economic impacts of designation would
include any state and local protections that are likely to be triggered
as a result of designation. However, as discussed in chapter 3 of the
Draft Economic Analysis (DEA), we did not identify state or local
protections that may be triggered by a proposed humpback whale critical
habitat designation (IEc 2019a).
The analysis methods and the estimated, incremental, economic
impacts stemming from designation of the identified specific critical
habitat areas for the WNP, MX, and CAM DPSs of humpback whales are
described in detail in the DEA prepared by Industrial Economics (IEc
2019a). To quantify the economic impacts associated with designating
the 19 units of habitat under consideration, IEc followed the following
general 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;
(2) Identify the types of activities that are likely to be affected
by critical habitat designation;
(3) Estimate the costs of administrative effort and, where
applicable, conservation efforts recommended for the activity to comply
with the ESA's critical habitat provisions;
(4) Project over space and time the occurrence of the activities
and the likelihood they will in fact need to be modified; and
(5) Aggregate the costs up to the particular area level and provide
economic impacts as present value impacts and annualized impacts.
The first step in the economic analysis involved identifying the
baseline level of protection already afforded the humpback whales in
the areas being considered for designation as critical habitat. The
baseline for this analysis is the existing state of regulation prior to
the designation of critical habitat, including protections afforded due
to the listing of the species under the ESA, and other Federal, state
and local laws and guidelines, such as the MMPA, Clean Water Act, and
state environmental quality laws. Next, in order to complete steps 2-4,
we searched the NMFS consultation database (for 2007-2018) to compile a
list of Federal actions and the projected number of those actions
occurring in each of the 19 areas under consideration as critical
habitat. Outreach to some Federal agencies was also conducted by IEc to
obtain additional information about planned activities. As applicable
and appropriate, NMFS biologists were also consulted to verify the
nature and number of consultations expected to occur over the next 10
years.
The following categories of activities with a Federal nexus were
identified as having the potential to affect the essential prey feature
and as being expected to occur within the specific critical habitat
areas under consideration: (1) Commercial fishing, (2) oil and gas
activities (including seismic surveys), (3) alternative energy
development, (4) in-water construction (including dredging and offshore
mining), (5) vessel traffic (specifically, activities related to
establishment of the shipping lanes established by the U.S. Coast Guard
(USCG) (6) aquaculture, (7) military activities, (8) liquefied natural
gas (LNG) terminal activities, (9) space vehicle and missile launches,
(10) water quality management (including pesticide registration,
establishment of water quality standards, and Clean Water Act general
permits), (11) U.S. Forest Service activities (related to timber and
forest management), and (12) inland activities (including power plant
operations, land management pesticide/herbicide application, and
National Pollutant Discharge Elimination System (NPDES) permitting).
These activities have the potential to affect the essential feature by
altering or reducing the quantity, quality, or the availability of the
prey feature essential to the conservation of one or more of the listed
DPSs of humpback whales.
As discussed in chapter 2 of the DEA, the costs quantified in the
economic analysis include only the additional administrative effort
associated with consideration of potential impacts to critical habitat
as part of future section 7 consultations (IEc 2019a). No additional
conservation measures were identified as likely to result from the
projected consultations, largely due to the baseline protections in
place. Depending on the specific area at issue and the Federal action,
relevant baseline protections include, for example, protections for co-
occurring listed species such as North Pacific right whales, Southern
Resident killer whales, salmon, Southern DPS of Pacific eulachon, and
the Southern DPS of green sturgeon; designated critical habitat for
listed species; as well as protections for humpback whales under both
the ESA and the MMPA. The number, location, and/or effects on prey of
some other activities, particularly seismic surveys and alternative
energy activities, are speculative at this time. Therefore, we did not
identify any probable conservation recommendations that would likely be
made specifically to avoid adverse modification of the humpback whale
critical habitat as a result of these activities, nor was it possible
to estimate the cost of any probable project modifications. However, we
solicit public comments and relevant data that would further inform
this analysis.
The DEA indicates that, if designated, the 19 units of critical
habitat may increase administrative costs of consultations involving
humpback whales by an estimated $630,000 to $720,000 over the next ten
years, assuming a seven percent discount rate (IEc 2019a). This equates
to an annualized cost of $72,000 to $82,000 over the next ten years
(IEc 201a9). The largest portion of administrative costs are
anticipated in Unit 10 (17 to 22 percent of total costs), followed by
Unit 13 (11 to 12 percent) and Unit 17 (9 to 10 percent). In-water
construction activities represent the largest share of estimated costs
(34 to 42 percent), while 18 to 21 percent of costs are associated with
commercial fishing, and 9 to 10 percent is associated with
consultations regarding military activities (IEc 2019a). (See the DEA
for the specific estimated impacts for each of the 19 habitat units and
for each of the 12 categories of Federal activities.)
These economic impacts are largely associated with the
administrative costs 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. Ultimately, the
analysis found that consultations on in-
[[Page 54376]]
water and coastal construction activities may generate costs borne by
small entities. All other activities are either not expected to involve
small entities or are associated with no more than two consultations
per year spread across the entire critical habitat. As described in
chapter 5 of the DEA, the analysis anticipates approximately eight
consultations on in-water and coastal construction activities per year,
six of which are concentrated in proposed critical habitat Unit 10 in
Alaska. This analysis estimates that the small entities involved in
these consultations will incur $4,900 in annualized administrative
costs (IEc 2019a). (See ``Initial Regulatory Flexibility Act'' section
of this document for information regarding impacts on small entities.)
Tribal Impacts
Section 4(b)(2) of the ESA also allows for the consideration of
other relevant impacts associated with the designation of critical
habitat. We identified potential impacts on Federally recognized tribes
as a possible source of other impacts relevant to the humpback whale
critical habitat designation. A broad array of activities that occur on
Indian lands may trigger ESA section 7 consultations. Indian lands are
those defined in Secretarial Order 3206, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act'' (June 5, 1997), and include: (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 find
overlap between the areas under consideration as critical habitat and
Indian lands. Based on this, we preliminarily found that there were no
Indian lands subject to consideration for possible exclusion. However,
it is not clear whether there may be some nearshore areas that could be
considered for possible exclusion. In particular, we lack information
regarding where boundaries of tribal-owned lands lie in relation to
shoreward boundary of the specific critical habitat areas in Alaska,
which are generally bounded by the 1-m isobath (relative to MLLW).
As discussed further under the Classification section of this
preamble, there are Indian tribes and Alaska Native corporations that
have lands that are in close proximity to areas under consideration for
designation as critical habitat for humpback whales, have usual and
accustomed areas that overlap with critical habitat areas, or may
otherwise be affected in coastal Alaska, Washington, Oregon, and
California. Thus, at an early stage in the course of developing a
proposed critical habitat rule, we contacted all potentially affected
tribes. Specifically, in November 2018, and in coordination with the
NMFS regional tribal liaison, we reached out to 27 tribes located in
Washington, Oregon, and California, and 149 tribes and tribal
organizations located within Alaska to offer the opportunity to consult
on critical habitat for humpback whales and discuss any concerns they
may have. We provided maps and descriptions of all areas under
consideration as potential critical habitat, and we (1) invited input
regarding tribal resources and issues, usual and accustomed areas, or
the exercise of tribal rights that may be affected by a coastal
critical habitat designation for humpback whales; (2) requested any
information to assist us in determining the conservation value of
nearshore areas of Indian lands as well as other possible areas of
interest to the tribes, such as deep-water habitats outside the
nearshore areas; and (3) invited discussion on the tribal government's
position regarding the designation of those areas as critical habitat.
We received no requests for consultation in response to our
outreach efforts. We did, however, receive responses from two tribes in
Washington, the Quinault Indian Nation and the Quileute Tribe. Both
tribes expressed concern regarding the potential impact of the critical
habitat designation on tribal fisheries, particularly within usual and
accustomed fishing areas located in coastal marine waters. We had
multiple follow-up communications with these tribes; however, neither
tribe elected to submit formal comment or information regarding impacts
on tribal resources or treaty rights, nor did they request additional
meetings or consultation. As described in the Draft Economic Analysis
(IEc 2019a), while it is possible that the critical habitat designation
could result in recommendations for changes in fishery management, we
consider that unlikely at this time, given the existing requirement to
consider the effect of harvesting prey on the listed humpback whales
and given existing Federal fisheries management measures (e.g.,
prohibition on krill fishing). We will continue to coordinate and
consult with potentially affected tribes and Native corporations as we
move forward with the rulemaking process.
Analysis of the Benefits of Designation
The primary benefit of critical habitat designation--and the only
regulatory consequence--stems from the ESA section 7(a)(2) requirement
that all Federal agencies ensure that their actions are not likely to
destroy or adversely modify the designated habitat. This benefit is in
addition to the section 7(a)(2) requirement that all Federal agencies
ensure their actions are not likely to jeopardize the species'
continued existence. Another benefit of designation is that it provides
notice of areas and features important to species conservation, and
information about the types of activities that may reduce the
conservation value of the habitat. Critical habitat designation may
also trigger additional protections under state or local regulations.
In addition to the benefits of critical habitat designation to the
whales, there may be ancillary benefits. These other benefits may be
economic in nature, or they may result in improvement of the ecological
functioning of the designated areas. Chapter 4 of the DEA (IEc 2019a)
discusses other forms of benefits that may be attributed to the
conservation and recovery of humpback whales (although not specifically
attributed to the designation of critical habitat), including use
benefits (e.g., for wildlife viewing), non-use benefits (e.g.,
existence values), and ancillary ecosystem service benefits (e.g.,
water quality improvements and enhanced habitat conditions for other
marine and coastal species). Humpback whales are also valued in terms
of the utility gained from whale watching experiences. In Washington,
Oregon, California, and Alaska, humpback whales are a target species
for whale watchers (IEc 2019a). Whale watch participants in these
states generate tens of millions of dollars in economic activity
annually (Pendelton 2006). Although humpback whales have value to
people nationally and serve as an economic engine regionally, we are
unable to apply the available literature to quantify or monetize
associated use and non-use economic benefits that would be attributable
to a critical habitat designation. More information about these types
of benefits and values may be found in chapter 4 of the DEA (IEc
2019a).
It would be ideal if the best available information allowed the
benefits of designation to be monetized so they could be directly
compared to the economic benefits of excluding a particular area.
However, sufficient and
[[Page 54377]]
relevant data are not available to monetize the benefits of designation
(e.g., estimates of the monetary value of the protecting the feature
within areas designated as critical habitat, or the monetary value of
education and outreach benefits). For this reason, the ESA regulations
recognize that benefits may be quantitatively or qualitatively
described (50 CFR 424.19(b)). Further, we cannot isolate and quantify
the effect that a critical habitat designation would have on recovery
of humpback whales separate from other ongoing or planned conservation
actions. In addition, it is difficult to accurately predict the future
harm to the habitat that would otherwise have been realized in the
absence of a critical habitat designation. Ultimately, given these
challenges and lack of sufficient information, the associated
incremental use and non-use economic benefits of designating particular
areas of the potential designation cannot be quantified. As an
alternative approach, we assessed the benefits of designation using a
biologically-based analysis of the specific areas. In this particular
case, the CHRT considered relevant humpback whale datasets to
qualitatively rate the conservation impact or value for the DPSs if a
particular area is designated as critical habitat. These qualitative
conservation value ratings were then used to represent the benefits of
designation. The Draft Biological Report (NMFS 2019a) provides a
detailed discussion of the methods and datasets used by the CHRT to
systematically assign a qualitative conservation value rating to each
of the habitat units (specific areas) under consideration.
In general, the multiple datasets considered by the CHRT provided
information about the importance of a given area for humpback whale
feeding, the level of use of the critical habitat units by all humpback
whales, and the level of use of the units by whales of each particular
DPS (see Appendix C, NMFS 2019a). The first dataset contained
information about the feeding BIAs that have been identified for
humpback whales (see Ferguson et al. 2015a, c and Calambokidis et al.
2015). Rather than simply considering presence/absence of a BIA and to
make this information comparable across units, the CHRT considered the
size of the BIAs relative to the size of the particular critical
habitat unit. Specifically, the CHRT calculated the percent of total
area (km\2\) of a unit that was covered by the BIA within that unit
(see Table C4 in NMFS (2019a) for calculations).
The second dataset included data on the density of humpback whales'
occurrence within each critical habitat unit (regardless of which DPS
the whales belong to). For habitat units along the West Coast, density
of whales was determined using the habitat model results of Becker et
al. (2016), which allowed for calculations of predicted density within
each specific critical habitat unit (i.e., predicted abundance per area
of the critical habitat unit). As no comparable modelling data exist
for the habitat units within Alaska (i.e., Units 1-10), whale density
information was instead compiled from the most recent, available
literature, which covered various years and time periods, and addressed
study areas that did not necessarily align with the critical habitat
unit boundaries (see Tables C5 and C6 for details). These non-uniform
data prevented the CHRT from making any strong inferences about
humpback whale densities within Units 1-10 and complicated their
ability to compare densities across units. The density data pulled from
the literature were therefore considered in a very qualitative way and
did not directly determine any votes or conclusions.
A third dataset addressed the presence of whales from each
particular DPS within each critical habitat unit. Three different
pieces of information were presented in this dataset. First, using
results of the SPLASH study, the CHRT calculated the percentage of
whales identified to a particular DPS out of all the matched sightings
within a specific unit. (Matched sightings are the total number of
whales photo-identified in both the relevant breeding areas for the DPS
and the critical habitat unit. Note that most whales sighted in feeding
areas have not been identified as belonging to a particular DPS.) (See
Table C7 in NMFS (2019a) for total matches and calculations.) Secondly,
the CHRT considered the probabilities of whales from a particular DPS
moving from their winter, breeding area to a feeding area (critical
habitat unit) as calculated by Wade (2017). These movement
probabilities were also derived from SPLASH data. The feeding areas
from the SPLASH study and from Wade (2017) represent larger geographic
areas than the critical habitat units, so in many cases the same
movement probability applied to multiple, adjacent critical habitat
units. Lastly, the CHRT compiled available documentation of whales from
a specific DPS occurring in each unit (i.e., confirmed presence). These
data came from both the SPLASH study as well as other references, a
complete list of which is provided in Table C8 of NMFS (2019a).
After reviewing the datasets as a group, each member of the CHRT
independently rated the habitat unit for each relevant DPS through a
structured decision-making process. To do this, each team member
distributed four ``points'' across the following four conservation
value categories for each of the critical habitat units:
(1) Very high--meaning areas where the available data indicate the
area is very important to the conservation of the DPS;
(2) high--meaning areas where the available data indicate the area
is important to the conservation of the DPS;
(3) medium--meaning the available data indicate the area is
moderately important to the conservation of the DPS; and,
(4) low conservation value--meaning the available data suggest the
DPS does not rely on this area for feeding.
CHRT members could place all four points for a given habitat unit
and DPS in one of these qualitative categories or spread those four
points across any or all of the four categories. The degree to which
votes were spread across the conservation value categories thus served
as a measure of uncertainty in the conservation value of a particular
unit. Because the CHRT consists of 10 team members, each unit of
critical habitat received a total of 40 points. However, CHRT members
were permitted to forego assigning their four points for a specific
critical habitat unit if they concluded the available data were either
too limited to support drawing a particular conclusion or there was too
much uncertainty associated with the available data. In these
instances, CHRT members could instead categorize the unit as ``data
deficient.'' Units receiving ``data deficient'' votes from one or more
CHRT member meant those particular units received less than 40 points.
Following an initial round of scoring, the CHRT met to discuss
their assessments of the data and results. Following that team
discussion, CHRT members were given the opportunity to independently
re-evaluate their own point distributions and make any changes (if they
elected to do so). The CHRT's conservation ratings for each of the
habitat units are provided in Tables 1-3; complete results are
presented and discussed within the Draft Biological Report (NMFS
2019a).
Proposed Exclusions Based on Economic Impacts
As is clear from the preceding discussion, the conservation
benefits to the humpback whale DPSs that would result from the
designation of any particular critical habitat unit,
[[Page 54378]]
expressed as a qualitative rating, are not directly comparable to the
economic benefits that would result from exclusion of the particular
unit from designation, which is expressed as a quantified cost.
However, to weigh the benefits of designation against the economic
benefits of exclusion, we have to compare these two types of
information. As noted previously, the Secretary has discretion to
determine the weight to assign to the relevant factors and may exclude
any particular area from the critical habitat designation upon a
determination that the benefits of such exclusion outweigh the benefits
of specifying the particular area as part of the critical habitat (50
CFR 424.19(c)). The Secretary, however, cannot exclude any particular
area if, based on the best scientific and commercial data available,
the Secretary determines that the failure to designate that area as
critical habitat will result in the extinction of the species concerned
(50 CFR 424.19(c)). For this analysis, we note that each of the units
identified for potential designation meet the definition of critical
habitat because they are in the occupied range of the species and
contain the identified physical or biological feature; however, the
areas vary as to the level of conservation value anticipated to result
from the designation. We (exercising the delegated authority of the
Secretary) determined that the conservation benefits of including areas
with medium, high, or very high conservation ratings should have
significant weight in this analysis.
Overall, the projected economic impacts to Federal agencies and
non-Federal entities of designating each of the 19 habitat units are
low, with annualized impacts ranging from $430-$18,000 per habitat unit
(IEc 2019a). If all 19 units were designated, the total annualized
impact is estimated to range from $72,000 to $82,000 over the next 10
years (IEc 2019a). This estimated economic impact is well below the
annualized costs associated with several, large, marine critical
habitats that have been previously designated in the Pacific (e.g.,
leatherback sea turtle, 77 FR 4169, January 26, 2012; black abalone, 76
FR 66806, October 27, 2011). Relative to these other designations, the
probable economic impacts projected for the humpback whale critical
habitat are comparatively very low.
Results of the biological and economic analyses (see Tables 1-3)
indicate that habitat units rated as having ``very high'' or ``high''
conservation value are associated with annualized impacts ranging from
$430 (Unit 1, WNP and MX DPSs) to $7,500 (Unit 11, CAM and MX DPS).
Habitat units rated as having ``medium'' conservation value are
associated with annualized impacts ranging from $680 (Unit 4, MX DPS)
to $18,000 (Unit 10, MX DPS). Lastly, specific areas rated as having
``low'' conservation value were associated with annualized impacts
ranging from $680 (Unit 4, WNP DPS) to $5,200 (Unit 19, CAM and MX
DPSs). After reviewing the costs and conservation values for each
specific area and for each DPS, the CHRT concluded that the economic
impacts for units with very high, high, and medium conservation ratings
were not outweighed by the relatively low costs attributed to any of
those units. Given the data-driven process by which the CHRT carefully
evaluated the relative conservation value of each critical habitat
unit, the CHRT was confident that areas receiving these rating
classifications are all important to the conservation of their
respective DPSs. In other words, these higher value feeding areas are
viewed as being critical in supporting the overall life history of the
whales, and their conservation value is not outweighed by the
relatively low economic impacts projected to occur as a result of their
designation as critical habitat. The CHRT, however, concluded that the
economic impacts, though objectively low, do outweigh the benefits of
designating specific areas rated as having a ``low'' conservation
value. By definition, these low value habitat units are those specific
areas, based on the CHRT's assessment of the best available data, upon
which humpback whales of the particular DPS do not appear to rely on as
extensively for feeding, given the lower density or level of occurrence
of whales relative to other units with higher conservation value.
Therefore, even though the estimated annualized impacts only ranged
from $680-$5,200 across all of the low conservation value areas for all
DPSs, the CHRT concluded that these costs outweighed the minimal
conservation benefits to the whales of designating these areas. We
concurred with the CHRT's assessment and note that even with the
potential exclusions, the resulting designation includes extensive
areas of medium, high, and very high conservation value; and therefore,
we propose to exclude all low conservation value areas from the
critical habitat designations. Specifically, we proposed to exclude the
following five units from the critical habitat designation for the WNP
DPS: Unit 4--Central Peninsula Area, Unit 6--Cook Inlet, Unit 7--Kenai
Peninsula Area, Unit 8--Prince William Sound Area, and Unit 9--
Northeastern Gulf of Alaska. Based on the application of this same
decision rule, we also propose to exclude one specific area, Unit 19--
California South Coast, from critical habitat for the CAM DPS. Lastly,
we propose to exclude the three low-conservation-value habitat units
from the critical habitat designation for the MX DPS: Unit 7--Kenai
Peninsula Area, Unit 9--Northeastern Gulf of Alaska, and Unit 19--
California South Coast. As discussed in the Draft Section 4(b)(2)
Report (NMFS 2019b), we conclude that exclusion of these low
conservation-value areas from the critical habitat designations will
not result in extinction of any of the three humpback whale DPSs.
Table 1--Conservation Ratings and Estimated, Incremental, Annualized Economic Impacts Associated With Section 7
Consultations Over the Next 10 Years for the Specific Areas of Potential Critical Habitat for the Western North
Pacific DPS of Humpback Whales
----------------------------------------------------------------------------------------------------------------
Annualized
Unit No. Area Conservation rating impacts
----------------------------------------------------------------------------------------------------------------
1.................................... Bristol Bay................. high....................... $430
2.................................... Aleutian Islands Area....... very high.................. 690-2,400
3.................................... Shumagin Islands Area....... very high.................. 430-810
4.................................... Central Peninsula Area...... low........................ 680-860
5.................................... Kodiak Island Area.......... high....................... 2,800-3,600
6.................................... Cook Inlet.................. low........................ 3,400-3,700
7.................................... Kenai Peninsula Area........ low........................ 1,000
8.................................... Prince William Sound Area... low........................ 1,800
[[Page 54379]]
9.................................... Northeastern Gulf of Alaska. low........................ 1,000
----------------------------------------------------------------------------------------------------------------
Table 2--Conservation Ratings and Estimated, Incremental, Annualized Economic Impacts Associated With Section 7
Consultations Over the Next 10 Years for the Specific Areas of Potential Critical Habitat for the Central
America DPS of Humpback Whales
----------------------------------------------------------------------------------------------------------------
Annualized
Unit No. Area Conservation rating impacts
----------------------------------------------------------------------------------------------------------------
11................................... Coastal Washington.......... high....................... $6,800-$7,500
12................................... Columbia River Area......... medium/low................. 6,300
13................................... Coastal Oregon.............. medium..................... 8,600-9,400
14................................... Southern Oregon/Northern high....................... 2,300
California.
15................................... California North Coast...... medium..................... 1,600
16................................... San Francisco/Monterey Bay.. very high.................. 2,700
17................................... California Central Coast.... very high.................. 7,200
18................................... Channel Islands............. high....................... 3,500
19................................... California South Coast...... low........................ 5,000-5,200
----------------------------------------------------------------------------------------------------------------
Table 3--Conservation Ratings and Estimated, Incremental, Annualized Economic Impacts Associated With Section 7
Consultations Over the Next 10 Years for the Specific Areas of Potential Critical Habitat for the Mexico DPS of
Humpback Whales
----------------------------------------------------------------------------------------------------------------
Annualized
Unit No. Area Conservation rating impacts
----------------------------------------------------------------------------------------------------------------
1.................................... Bristol Bay................. high....................... $430
2.................................... Aleutian Island Area........ very high.................. 690-2,400
3.................................... Shumagin Islands Area....... very high.................. 430-810
4.................................... Central Peninsula Area...... medium..................... 680-860
5.................................... Kodiak Island Area.......... high....................... 2,800-3,600
6.................................... Cook Inlet.................. medium..................... 3,400-3,700
7.................................... Kenai Peninsula Area........ low........................ 1,000
8.................................... Prince William Sound Area... high....................... 1,800
9.................................... Northeastern Gulf of Alaska. low........................ 1,000
10................................... Southeastern Alaska......... medium..................... 12,000-18,000
11................................... Coastal Washington.......... very high.................. 6,800-7,500
12................................... Columbia River Area......... medium..................... 6,300
13................................... Coastal Oregon.............. medium..................... 8,600-9,400
14................................... Southern Oregon/Northern high....................... 2,300
California.
15................................... California North Coast...... medium..................... 1,600
16................................... San Francisco/Monterey Bay very high.................. 2,700
Area.
17................................... California Central Coast.... very high.................. 7,200
18................................... Channel Islands Area........ high....................... 3,500
19................................... California South Coast Area. low........................ 5,000-5,200
----------------------------------------------------------------------------------------------------------------
Proposed Exclusions Based on National Security Impacts
Based on the written information provided by the Navy in December
2018 and information provided through subsequent discussions with Navy
representatives, we evaluated whether there was a reasonably specific
justification indicating that designating certain areas as critical
habitat would have a probable incremental impact on national security.
In accordance with our 4(b)(2) Policy (81 FR 7226, February 11, 2016),
in instances where the Navy provided a reasonably specific
justification, we deferred to their expert judgement as to: (1) Whether
activities on its lands or waters, or its activities on other lands or
waters, have national security or homeland-security implications; (2)
the importance of those implications; and (3) the degree to which the
cited implications would be adversely affected by the critical habitat
designation. In conducting a review of these exclusion requests under
section 4(b)(2) of the ESA, we also gave great weight to the Navy's
national-security concerns. To weigh the national security impacts
against conservation benefits of a potential critical habitat
designation, we also considered the following: (1) The size of the
requested exclusion and the percentage of the specific critical habitat
area(s) that overlaps with the Navy area; (2) the relative conservation
value of the specific area for each particular humpback whale DPS; (3)
the likelihood that the Navy's activities would destroy or adversely
modify critical habitat, and the likelihood that NMFS would require
project modifications to reduce or avoid these impacts; and, (4) the
likelihood that other Federal actions may occur in the site that would
no longer be subject to the critical habitat provision if the
[[Page 54380]]
particular area were excluded from the designation.
As noted above, SEAFAC is a small installation (48 nmi\2\),
comprising only 0.22 percent of Unit 10, which covers 22,152 nmi\2\ of
marine habitat within Southeast Alaska, and lies entirely outside of
the recognized feeding BIA in this region (Ferguson et al. 2015). Unit
10 was found to have a medium conservation value for the MX DPS of
humpback whales. Given the Navy's substantial and specific concerns
regarding the potential impact of a designation on their activities
within SEAFAC, the extremely small relative size of the requested
exclusion, the medium conservation rating of the habitat, and fact that
other Federal activities are unlikely to occur in this area, we
determined that benefits of excluding this area due to national
security impacts outweigh the benefits of designating this area as
critical habitat for the MX DPS. Therefore, we are proposing to exclude
the SEAFAC area from the designation of critical habitat for the MX DPS
of humpback whales, and the boundaries of Unit 10 have been adjusted
accordingly.
After considering the information provided by the Navy regarding
potential impacts on national security stemming from the designation of
a portion of Unit 11 as critical habitat, we found that the Navy had
provided a reasonably specific justification for their requested
exclusion of the area overlapping with the QRS as well the 10-km buffer
surrounding the QRS. The requested exclusion comprises about 44 percent
of the area of Unit 11, which was rated as having a high conservation
value for the CAM DPS and a very high conservation value for the MX
DPS. To get a more precise sense of the value of the specific QRS area
(including the buffer) to the whales, we reviewed the overlap of the
QRS with the location of the BIA and the predicted whale densities from
Becker et al. (2016), which modeled predicted densities in
approximately 10 km by 10 km grid cells. Those comparisons indicated
that the QRS is entirely outside of, and south of, the BIA, and
overlaps partially with the area where the highest densities of
humpback whales are predicted to occur within Unit 11. In other words,
an exclusion of the QRS and buffer area would not remove from the
designation much of the comparatively high value locations within Unit
11. The Navy also indicated that while access to this area is not as
tightly controlled as with SEAFAC, they do exert significant influence
in terms of limiting other Federal activities within this the QRS.
Overall, given the Navy's substantial and specific concerns regarding
the potential impact of a critical habitat designation on their unique
testing and training activities that occur within the QRS and the
potential delay in critical missions in order to complete adverse
modification analyses, we determined that the benefits of excluding the
QRS and buffer due to national security impacts outweighs the benefits
of designating this portion of Unit 11 as critical habitat for the MX
and CAM DPSs. Thus, we propose to exclude this DOD area from the
critical habitat designations for both the MX and CAM DPSs, and the
boundaries of Unit 11 have been adjusted accordingly.
We considered the information provided by the Navy concerning
potential impacts on national security stemming from the designation of
Unit 19 as critical habitat, and found that the Navy had provided a
reasonably specific justification for their requested exclusion. We
considered the information provided by the Navy regarding the nature
and types of training and testing activities that occur within the
SOCAL range complex (e.g., anti-submarine warfare, torpedo, mine
countermeasure, gun, missile and rocket, and propulsion testing) to
evaluate their potential to affect humpback whale critical habitat. We
also reviewed the discussions about particular impacts provided in the
Navy's 2018 Final Environmental Impact Statement for Hawaii-Southern
California Training and Testing (e.g., impacts to fish and
invertebrates). We agree with the Navy's assessment that the activities
that occur in the SOCAL range complex, many of which occur with high
frequency, have the potential to impact humpback whale prey species,
with the degree of impact depending on the nature of the particular
activity. We also considered that Unit 19 had been assessed as having
low conservation value to both the MX and CAM DPSs of humpback whales.
Although this exclusion request extended over the entirety of Unit 19,
given the low conservation value rating this area received for each
DPS, we concluded that the benefit of exclusion of this particular area
outweighs the benefit of including it in either designation. Overall,
we concurred with the Navy that designation of Unit 19 would likely
have national security impacts that outweigh the benefits of
designating this low conservation value area. Thus, even though we had
previously determined that Unit 19 should be proposed for exclusion
based on economic impacts, we made an independent determination to
propose to exclude this area as a result of national security impacts.
This conclusion further supports the proposed exclusion of Unit 19
under section 4(b)(2) of the ESA.
Proposed Critical Habitat Designations
For the endangered WNP DPS of humpback whales, we propose to
designate 78,690 nmi\2\ of marine habitat off the coast of Alaska as
occupied critical habitat. (The proposed designation encompasses Units
1, 2, 3, and 5 as shown in Figure 1.) The specific areas included in
the proposed designation are seasonal feeding areas for humpback whales
and contain the essential prey feature. A total area of 44,119 nmi\2\
is proposed for exclusion, because the benefits of exclusion were found
to outweigh the benefits of inclusion of these areas. Specifically, the
limited conservation benefits of designating the relevant specific
areas (i.e., Units 4, 6, 7, 8, and 9) were found to be outweighed by
the economic impact of designating these areas. Each of the areas
recommended for inclusion in the designation for the WNP DPS (i.e.,
Units 1, 2, 3, and 5) contains a humpback whale feeding BIA and was
rated as having high or very high conservation value for the WNP DPS.
Although one of the areas proposed for exclusion (i.e., Unit 8) also
contains a humpback whale feeding BIA, whales from the WNP DPS have not
been directly observed within this unit and presence has only been
inferred based on the available data. We also find that the exclusion
of Units 4, 6, 7, 8, and 9 from a designation of critical habitat for
the WNP DPS of humpback whales would not result in extinction of this
DPS, because these whales are not expected to rely on these areas for
feeding (NMFS 2019a). No other exclusions are proposed for this DPS. We
have not identified any unoccupied areas that are essential to the
conservation of this DPS, thus we are not proposing to designate any
unoccupied areas.
For the endangered CAM DPS of humpback whales, we propose to
designate 48,459 nmi\2\ of marine habitat off the coasts of Washington,
Oregon, and California as occupied critical habitat. (The proposed
designation encompasses part of Unit 11 and Units 12-18 as shown in
Figure 1.) The areas being proposed for designation contain the
essential prey feature and serve as the only major feeding areas for
the CAM DPS; thus, these areas are critical to supporting population
growth and recovery of this endangered DPS. A total of 14,489 nmi\2\ of
marine habitat is proposed for exclusion, because the
[[Page 54381]]
benefits of exclusion were found to outweigh the benefits of inclusion
of this area. Specifically, the limited conservation benefits of
designating the relevant specific area (i.e., Unit 19--California south
Coast Area) were found to be outweighed by the economic impact of
designating this area. Exclusion of this area, which is not predicted
to be a high use area in the summer/fall, will not result in the
extinction of this DPS. An area of about 1,522 nmi\2\ corresponding to
a Navy testing and training area off the coast of Washington (QRS and
buffer) is being proposed for exclusion as a result of national
security impacts. While this exclusion does fall within high to very
high conservation-value feeding habitat for this DPS, it does fall
outside of the recognized feeding BIA and is small relative to the
total size of the proposed designation, which extends over 48,459
nmi\2\ of marine waters off of Washington, Oregon, and California.
Therefore, we conclude that this proposed exclusions will not result in
the extinction of this DPS.
The boundary for Unit 18 (Channel Island Area) was also adjusted so
that the footprint of the SNI INRMP (around Begg Rock) and of the NBVC
Point Mugu INRMP (i.e., waters around San Miguel and Prince Islands)
are not included in the proposed designation, as these areas were
determined to be ineligible for designation as critical habitat under
section 4(a)(3)(B)(i) of the ESA. We have not identified any unoccupied
areas that are essential to the conservation of the CAM DPS, thus we
are not proposing to designate any unoccupied areas.
For the threated MX DPS of humpback whales, we propose to designate
175,812 nmi\2\ of marine habitat off the coasts of Alaska, Washington,
Oregon, and California as occupied critical habitat. (The proposed
designation encompasses Units 1-6, 8, most of Unit 10, part of Unit 11,
and Units 12-18; Figure 1.) The areas being proposed for designation
are seasonal feeding areas that contain the essential prey feature, and
are critical in supporting population growth and recovery of this wide-
ranging threatened DPS. A total of 32,097 nmi\2\ of marine habitat is
proposed for exclusion, because the benefits of exclusion were found to
outweigh the benefits of inclusion of these areas. Specifically, the
limited conservation benefits of designating the relevant specific
areas (i.e., Unit 7--Kenai Peninsula Area, Unit 9--Northeastern Gulf of
Alaska, and Unit 19--California south Coast Area) were found to be
outweighed by the economic impact of designating these areas. Given the
limited conservation benefits of designating these areas, exclusion of
these areas will not result in extinction of this DPS. About 1,570
nmi\2\ of marine habitat corresponding to two Navy areas, one in
Southeast Alaska (SEAFAC) and one off the coast of Washington (QRS) are
being proposed for exclusion as a result of national security impacts.
Although these proposed exclusions are within feeding habitat of medium
and high conservation value for this DPS, they are both outside of
recognized BIAs, and they comprise a small area relative to the total
size of the proposed designation, which includes coastal marine waters
off Alaska, Washington, Oregon, and California. Therefore, we conclude
that these proposed exclusions will not result in the extinction of the
MX DPS.
As described above for the CAM DPS, the boundary for Unit 18
(Channel Island Area) was also adjusted so that the footprint of the
SNI INRMP (around Begg Rock) and of the NBVC Point Mugu INRMP (i.e.,
waters around San Miguel and Prince Islands) are not included in the
proposed designation, as these areas were determined to be ineligible
for designation as critical habitat under section 4(a)(3)(B)(i) of the
ESA. We have not identified any unoccupied areas that are essential to
the conservation of the MX DPS, thus we are not proposing to designate
any unoccupied areas.
Effects of Critical Habitat Designations
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. Federal agencies must
consult with us on any proposed agency action that may affect the
listed species or its critical habitat. During interagency
consultation, we evaluate the agency action to determine whether the
action may adversely affect listed species or critical habitat and
issue our finding in a biological opinion. The potential effects of a
proposed action may depend on, among other factors, the specific timing
and location of the action relative to seasonal presence of essential
features or seasonal use of critical habitat by the listed species for
essential life history functions. While the requirement to consult on
an action that may affect critical habitat applies regardless of the
season, NMFS addresses the varying spatial and temporal considerations
when evaluating the potential impacts of a proposed action during
consultation. 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. The Service may also provide
with the biological opinion a statement containing discretionary
conservation recommendations. Conservation recommendations are advisory
and are not intended to carry any binding legal force.
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 for the WNP, CAM, or MX DPSs of humpback whales.
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 Emergency Management Agency funding). ESA
section 7 consultation would not be required for Federal actions that
do 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
[[Page 54382]]
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) Federal fisheries, (2) oil and gas activities
(including seismic surveys), (3) alternative energy development, (4)
in-water construction (including dredging and offshore mining), (5)
vessel traffic (specifically, activities related to establishment of
the shipping lanes established by the USCG), (6) aquaculture, (7)
military activities, (8) LNG terminal activities, (9) space vehicle and
missile launches, (10) water quality management (including pesticide
registration, establishment of water quality standards, and Clean Water
Act general permits), (11) U.S. Forest Service activities (related to
timber and forest management), and (12) inland activities (including
power plant operations, land management pesticide/herbicide
application, and NPDES permitting).
Private or non-Federal entities may also be affected by the
proposed critical habitat designation if there is a Federal nexus in
that 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 humpback whale critical
habitat. As noted in the solicited comments section below, NMFS also
requests information on the types of non-Federal activities that may be
affected by this rulemaking.
Public Comments Solicited
To ensure the final action resulting from this proposed rule will
be as accurate and effective as possible, we solicit comments and
information from the public, other concerned government agencies,
Federally recognized tribes and organizations, the scientific
community, industry, non-governmental organizations, and any other
interested party concerning the proposed designations of critical
habitat for the WNP, CAM, and MX DPSs of humpback whales. In
particular, we are interested in data and information regarding the
following: (1) The distribution and habitat use of whales of the WNP,
CAM, or MX DPS in coastal waters within the North Pacific; (2) the
relative conservation value of the 19 specific units of critical
habitat to the specific, relevant DPSs of humpback whales that occur in
each area; (3) how medium conservation value areas were assessed and
weighed relative to the impacts associated with designating these
particular areas (i.e., should the designation include particular
medium conservation-value areas or exclude them?); (4) the boundaries
of the specific areas and of the proposed critical habitats; (5) the
nearshore distribution of humpback whales in waters off Alaska, and
whether the benefits of excluding areas closest to shore outweigh the
benefits associated with designating these areas; and, if nearshore
areas are excluded, what would be an appropriate distance; (6)
information regarding potential benefits of designating any particular
area as critical habitat; (7) information regarding the types of
Federal actions that may trigger an ESA section 7 consultation and the
possible modifications that may be required of those activities; (8)
information regarding current or planned activities in the areas
proposed as critical habitat, including both Federal and non-Federal
activities, that may be impacted by the proposed critical habitat
designation; (9) any foreseeable economic, national security, Tribal,
or other relevant impact resulting from the proposed designations,
including costs arising from project delays due to section 7
consultations; (10) whether any data used in the economic analysis
needs to be updated; (11) additional costs arising specifically from
humpback whale critical habitat that have not been identified in the
Draft Economic Analysis or improved costs estimates for activities that
are included in the Draft Economic Analysis; (12) additional
information regarding impacts on small businesses and Federally
recognized tribes that were not identified in the Draft Economic
Analysis or the initial regulatory flexibility analysis; and, (13) any
information relevant to potential exclusions of particular areas that
are smaller than those considered (e.g., a particular area encompassing
the San Francisco Traffic Separation Scheme). To the extent possible,
we request that the data or information provided be clearly specific to
one or more of the DPS addressed in this proposed rule.
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 the Federal e-Rulemaking
Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0066. In
preparing the final rule, we will consider all comments pertaining to
the proposed 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 a constructive dialogue concerning this
proposed rule. We encourage the public's involvement in such ESA
matters. Public hearings and the dates and specific locations for these
hearings will be announced in a separate Federal Register notice.
Requests for additional public hearings must be made in writing (see
ADDRESSES) by November 25, 2019.
References Cited
A complete list of all references cited in this proposed rule can
be found on the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0066, and is available upon request
from the NMFS Office of Protected Resources (see ADDRESSES).
Classifications
National Environmental Policy Act
We have determined that an environmental analysis as provided for
under the National Environmental Policy Act of 1969 for critical
habitat designations made pursuant to the ESA is not required. See
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied,
116 S.Ct. 698 (1996).
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 provided in
chapter 5 of the Draft Economic Analysis (IEc 2019a). The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. The IRFA is summarized below.
[[Page 54383]]
As discussed previously in this preamble and in our IRFA (see
chapter 5 of IEc 2019a), the designation of critical habitat is
required under the ESA, and in this particular case, is also required
pursuant to a court-approved settlement agreement. Section 4 of the
ESA, requires us to designate, to the maximum extent prudent and
determinable, the specific areas that contain the physical or
biological features essential to the conservation of the species and
that may require special management considerations or protections. This
proposed critical habitat rule does not directly apply to any
particular entity, small or large. The rule would operate in
conjunction with ESA section 7(a)(2), which requires that Federal
agencies ensure, in consultation with NMFS, that any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of listed species or destroy or adversely modify critical
habitat. Consultations may result in economic impacts to Federal
agencies and proponents of proposed actions (e.g., permittees,
applicants, grantees). Those economic impacts may be in the form of
administrative costs of participating in a section 7 consultation and,
if the consultation results in required measures to protect critical
habitat, project modification costs.
This proposed rule will not impose any recordkeeping or reporting
requirements on small entities. The critical habitat designations would
require that Federal agencies initiate a section 7 consultation to
ensure their actions do not destroy or adversely modify critical
habitat. During formal consultation under the ESA, there may be
communication among NMFS, the action agency, and a third party
participant applying for Federal funding or permitting in an effort to
minimize potential adverse impacts to the habitat or essential feature.
Communication may include written letters, phone calls, and/or
meetings. Project variables such as the type of consultation, the
location of the activity, impacted essential features, and activity of
concern, may in turn dictate the complexity of these interactions.
Third party costs may include administrative work, such as cost of time
and materials to prepare for letters, calls, or meetings. The cost of
analyses related to the activity and associated reports may be included
in these administrative costs. In addition, following the section 7
consultation process, as a requirement of the funding or permit
received from the Federal action agency, entities may be required to
monitor progress during the said activity to ensure that impacts to the
habitat and features have been minimized.
The proposed rule will not duplicate or conflict with any other
laws or regulations. However, the protection of listed species and
habitat under critical habitat may overlap other sections of the ESA.
The protections afforded to threatened and endangered species and their
habitat are described in section 7, 9, and 10 of the ESA. A final
determination to designate critical habitat requires Federal agencies
to consult, pursuant to section 7 of the ESA, with NMFS on any
activities the Federal agency funds, authorizes, or carries out,
including permitting, approving, or funding non-Federal activities
(e.g., a Clean Water Act, Section 404 dredge or fill permit from
USACE). The requirement to consult is to ensure that any Federal 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. The
incremental impacts contemplated in this IRFA are expected to result
from the critical habitat designation and not from other Federal
regulations.
While we do not here prejudge the outcome of any interagency
consultation, the best available information supports the conclusion
that for most, if not all, of the Federal activities predicted to occur
over the time horizon of the analysis (i.e., in the next 10 years), if
the effects to critical habitat will be adverse and require formal
consultation, those effects are also expected to constitute adverse
effects to listed humpback whales or other listed species or designated
critical habitat, either directly or indirectly. Thus, as discussed
previously, projects that might adversely affect the proposed essential
feature and proposed humpback whale critical habitat are not expected
to result in incremental project modification costs. Therefore, the
only costs of this class of actions that are attributable to this rule
are the administrative costs of adding critical habitat analyses to a
consultation that would otherwise occur anyway.
The designation of critical habitat humpback whales is expected to
have a limited economic impact, on the order of $6,900-$9,700
annualized over ten years (at a 7 percent discount rate) for the WNP
DPS, $42,000-$43,000 for the CAM DPS, and $64,000-$75,000 for the MX
DPS. The nature of these costs are administrative efforts to consider
potential for adverse modification as 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.
The best available information was used to identify the potential
impacts of critical habitat on small entities. However, there are
uncertainties that complicate quantification of these impacts,
particularly with respect to the extent to which the quantified impacts
may be borne by small entities. As a result, the IRFA employed a
conservative approach (i.e., more likely to overestimate than
underestimate impacts to small entities) in assuming that the
quantified costs that are not borne by the Federal government are borne
by small entities. Because the critical habitat under consideration
occurs in marine waters, the analysis also focused on small entities
located in counties along the Pacific Coast of California, Oregon, and
Washington, and in coastal counties in Alaska.
For all activities categories relevant to this analysis except in-
water and coastal construction (i.e., commercial fishing, oil and gas,
alternative energy, aquaculture, LNG facilities, water quality
management, and inland activities), the expected costs borne by third
parties in related industries is expected to be negligible. For each of
these activities, two or fewer consultations are anticipated per year
spread across the area that was under consideration for humpback whale
critical habitat. As a result, the annualized incremental costs that
may be borne by small entities in related industries is estimated to be
less than $2,200. The analysis, therefore, focused on the costs of
consultations on in-water and coastal construction activities, which
occur more frequently within the critical habitat area. As described in
chapter 5 of the DEA (IEc 2019a), approximately eight consultations per
year focus on in-water and coastal construction activities. The
majority of these (six per year) are concentrated within critical
habitat Unit 10 in Alaska. As such, the analysis focused on the small
businesses and government jurisdictions in the region surrounding
critical habitat Unit 10.
Relevant businesses in North American Industry Classification
[[Page 54384]]
System (NAICS) included the following industry sectors: Sand, Gravel,
Clay and Ceramic Mining and Quarrying; Water and Sewer Line and Related
Structures Construction; Oil and Gas Pipeline and Related Structures
Construction; Power and Communication Line and Related Structures
Construction; Highway, Street, and Bridge Construction; Other Heavy and
Civil Engineering Construction; Dredging and Surface Cleanup
Activities. Along with private businesses, there also may be
consultations for which small governmental jurisdictions (i.e.,
jurisdictions with populations of less than 50,000 people) are the
third parties participating in the consultations rather than
businesses. The IRFA identified 21 small government jurisdictions
adjacent to critical habitat units that may be involved in future
consultations. Seven of these areas--Juneau Borough, Sitka Borough,
Haines Borough, Ketchikan Gateway Borough, Prince of Wales-Outer
Ketchikan Census Area, Skagway-Hoonah-Angoon Census Area, and Wrangell-
Petersburg Census Area--are adjacent to critical habitat Unit 10.
Ultimately, based on the IRFA, up to eight small entities per year
may bear costs associated with participation in consultation regarding
humpback whale critical habitat. The total annualized administrative
costs that may be borne by these small entities (businesses or
governments) engaged in in-water and coastal construction activities is
$4,900 (discounted at seven percent). Across all in-water and coastal
construction NAICS codes, the average annual revenues are $1.3 million
for the small businesses identified. As a result, the total estimated
annualized administrative costs of $4,900 represent less than 0.4
percent of average annual revenues at these businesses.
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 three alternatives. First, we considered the
alternative of not designating critical habitat for any of the three
humpback whale DPSs. This alternative would impose no additional
economic, national security or other relevant impacts. However, after
compiling and reviewing the biological information for these DPSs, we
rejected this alternative because it would violate section 4 of the
ESA, which specifically requires that we designate critical habitat to
the maximum extent prudent and determinable based on consideration of
the best available scientific information. A second alternative we
considered was to propose to designate all areas meeting the ESA
section 3 definition of critical habitat. However, following our
consideration of probable national security, economic, and other
relevant impacts of designating all the specific areas, we rejected
this alternative. In particular, and as described in our Draft Section
4(b)(2) Report, we determined that the benefits of excluding some
specific areas outweighed the conservation benefits of designating
those specific areas, and thus, pursuant to section 4(b)(2) of the ESA,
we are exercising our discretion to propose to exclude some of the
specific areas for each of the three DPSs (see NMFS 2019b). A third
alternative of designating a subset of the specific areas meeting
statutory definition of critical habitat was considered and is the
preferred alternative. As stated previously, under section 4(b)(2) of
the ESA, we have the discretion to exclude a particular area from
designation as critical habitat even though it meets the definition of
``critical habitat'' if the benefits of exclusion (i.e., the impacts
that would be avoided if an area was excluded from the designation)
outweigh the benefits of designation (i.e., the conservation benefits
to the humpback whale if an area was designated), so long as exclusion
of the area will not result in extinction of the species. Exclusion
under section 4(b)(2) of the ESA of one or more of the areas considered
for designation would reduce the total impacts of designation. This
alternative--which is the approach taken in the proposed rule--would
result in a critical habitat designation that provides for the
conservation of the species while potentially reducing the economic,
national security and other relevant impacts on entities.
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 the
proposed designation of critical habitat designation for the CAM and MX
DPSs of humpback 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.
By operation of Alaska State law, the Federally approved Alaska
Coastal Management Program expired on July 1, 2011, resulting in a
withdrawal from participation in the CZMA's National Coastal Management
Program (76 FR 39857, July 7, 2011). The CZMA Federal consistency
provision, section 307, no longer applies in Alaska.
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 (2 U.S.C. 1501 et seq.)
The designation of critical habitat does not impose an
``enforceable duty'' on state, local, tribal governments, or the
private sector and therefore does not qualify as a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an ``enforceable duty'' upon non-Federal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
This proposed rule will not produce a Federal mandate. The
designation of critical habitat does not impose an enforceable or
legally-binding duty on non-Federal government entities or private
parties. The only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7 of the ESA. Non-Federal entities that receive
Federal funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, but the Federal agency
has the legally binding duty to avoid destruction or adverse
modification of critical habitat. We do not find that this proposed
rule would significantly or uniquely affect small governments because
it is not likely to produce a Federal mandate of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. In addition, the
designation of critical
[[Page 54385]]
habitat imposes no obligations on local, state or tribal governments.
Therefore, a Small Government Agency Plan is not required.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and co-management agreements, which
differentiate tribal governments from the other entities that deal
with, or are affected by, the Federal Government. This relationship has
given rise to a special Federal trust responsibility involving the
legal responsibilities and obligations of the United States toward
Indian tribes and the application of fiduciary standards of due care
with respect to Indian lands, tribal trust resources, and the exercise
of tribal rights. Executive Order 13175 on Consultation and
Coordination with Indian Tribal Governments outlines the
responsibilities of the Federal Government in matters affecting tribal
interests. Section 161 of Public Law 108-199 (188 Stat. 452), as
amended by section 518 of Public Law 108-447 (118 Stat. 3267), directs
all Federal agencies to consult with Alaska Native corporations on the
same basis as Indian tribes under E.O. 13175.
As all of the specific areas under consideration as potential
critical habitat area were located seaward of the coast line, we
preliminarily found that there were no Indian lands subject to
consideration for possible exclusion. However, the areas we were
considering as potential critical habitat overlap with areas used by
Indian tribes and Alaska Natives for subsistence, cultural, usual and
accustomed fishing, or other purposes. Thus, consistent with the
Secretarial Order (#3206), American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act, and
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments (2000), we notified Native corporations and tribal
governments early on in the process to develop this proposed rule to
provide time for meaningful consultation and/or collaboration with
appropriate staffs to inform any proposed critical habitat designation.
Specifically, we contacted potentially affected tribes and Native
groups by mail and offered them the opportunity to consult on and
discuss any concerns regarding the designation of critical habitat for
humpback whales. We received no requests for consultation in response
to this mailing. However, in November 2018, we received requests for
technical-to-technical meetings from the Quileute Tribe and the
Quinault Indian Nation.
A technical meeting with representatives from the Quinault Indian
Nation was held on December 14, 2018, to share information and discuss
concerns regarding a designation of critical habitat for humpback
whales. Immediately following that meeting, we provided additional
materials and maps to the Quinault representatives. We did not receive
any further correspondence from the Quinault Indian Nation. We made
several attempts to schedule the requested meeting with the Quileute
Tribe; however, we did not receive further correspondence in response
to our last effort to schedule a meeting. If we receive any additional
requests in response to this proposed rule, we will individually
respond to each request prior to issuing a final rule. However, at this
time and on the basis of the foregoing communications, it does not
appear that this designation will have ``tribal implications'' (defined
as having a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes) such as would trigger a requirement to
conduct Government to Government consultations.
Information Quality Act and Peer Review
The data and analyses supporting this proposed action have
undergone a pre-dissemination review and have been determined to be in
compliance with applicable information quality guidelines implementing
the Information Quality Act (Section 515 of Pub. L. 106-554).
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). 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 information in the Draft Biological Report (NMFS 2019a) and the
DEA (IEc 2019a) supporting this proposed critical habitat rule are
considered influential scientific information and subject to peer
review. To satisfy our requirements under the OMB Bulletin, we obtained
independent peer review of the information used to draft both of these
reports, and incorporated the peer reviewer comments as applicable into
the draft reports prior to dissemination of this proposed rulemaking.
Comments received from peer reviewers of the DEA and the Draft
Biological Report are available online at https://www.cio.noaa.gov/services_programs/prplans/ID404.html and https://www.cio.noaa.gov/services_programs/prplans/ID400.html, respectively.
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 that substantially affect its value or use. In accordance with
E.O. 12630, the proposed rule does not have significant takings
implications. The designation of critical habitat affects only Federal
agency actions. Further, no areas of private property exist within the
proposed critical habitat and therefore none would be affected by this
action. Therefore, a takings implication assessment is not required.
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 2019a) 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
[[Page 54386]]
these documents, see the ADDRESSES section above.
Based on the Draft Economic Report (IEc 2019a), the total estimated
present value of the quantified incremental impacts of the proposed
critical habitat designation for the WNP DPS are approximately $61,000-
$85,000 over the next 10 years. Assuming a 7 percent discount rate on
an annualized basis, the impacts are estimated to be $6,900-$9,700 per
year. These total impacts include the additional administrative efforts
necessary to consider critical habitat in section 7 consultations.
These impacts are also not additive with those associated with the MX
DPS, as the areas proposed for the WNP DPS are entirely overlapping
with areas being proposed for the MX DPS. Overall, 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 for the WNP DPS,
insufficient data are available to monetize those impacts (see Benefits
of Designation section).
Based on the Draft Economic Report (IEc 2019a), the total estimated
present value of the quantified incremental impacts of the proposed
critical habitat designation for the CAM DPS are approximately
$370,000-$380,000 over the next 10 years. Assuming a 7 percent discount
rate on an annualized basis, the impacts are estimated to be $42,000-
$43,000 per year. These total impacts include the additional
administrative efforts necessary to consider critical habitat in
section 7 consultations. These impacts are also not additive with those
associated with the MX DPS, as the areas proposed for the CAM DPS are
entirely overlapping with areas being proposed for the MX DPS. Overall,
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
for the CAM DPS, insufficient data are available to monetize those
impacts (see Benefits of Designation section).
Based on the Draft Economic Report (IEc 2019a), the total estimated
present value of the quantified incremental impacts of the proposed
critical habitat designation for the MX DPS are approximately $570,000-
$660,000 over the next 10 years. Assuming a 7 percent discount rate on
an annualized basis, the impacts are estimated to be $64,000-$75,000
per year. These total impacts include the additional administrative
efforts necessary to consider critical habitat in section 7
consultations. Overall, economic impacts are expected to be small and
largely associated with the administrative costs borne by Federal
agencies. These impacts are also not additive with those associated
with the WNP and CAM DPSs, as the areas proposed for the MX DPS are
almost entirely overlapping with areas being proposed for another DPS.
Because the proposed designation for the this DPS extends over all
other areas proposed as critical habitat for the other two DPSs, the
estimated economic impacts associated with the proposed designation for
the MX DPS actually represent the total estimated impacts across all
DPSs. As with the other DPSs, there are expected beneficial economic
impacts of designating critical habitat for the MX DPS; however,
insufficient data are available to monetize those impacts (see Benefits
of Designation section).
This proposed rulemaking is expected to be considered
``regulatory'' under E.O. 13771.
Executive Order 13132, 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. The designation of critical habitat directly affects only the
responsibilities of Federal agencies. As a result, the proposed rule
does not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in the Order. State or local governments may
be indirectly affected by the proposed designation if they require
Federal funds or formal approval or authorization from a Federal agency
as a prerequisite to conducting an action. In these cases, the State or
local government agency may participate in the section 7 consultation
as a third party. 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 Alaska, Washington,
Oregon, and California.
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. Under E.O. 13211,
a 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 E.O. 12866 and is likely to
have a significant adverse effect on the supply, distribution, or use
of energy. We have considered the potential impacts of this proposed
action on the supply, distribution, or use of energy and find that the
designation of critical habitat would not have impacts that exceed the
thresholds identified in OMB's memorandum M-01-27, Guidance for
Implementing E.O. 13211. Thus, this proposed designation, if finalized,
would not have a significant adverse effect within the meaning of the
executive order. The energy impacts analysis is presented in chapter 5
of the Draft Economic Analysis (IEc 2019a).
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 224
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 226
Endangered and threatened species.
Dated: September 25, 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 parts 223, 224, and
226 are proposed to be amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, in paragraph (e), add a new citation, in
alphabetical order, under the critical habitat column for the ``whale,
humpback (Mexico DPS)'' under Marine Mammals to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous
species.
* * * * *
[[Page 54387]]
(e) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
----------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Whale, humpback (Mexico DPS). Megaptera Humpback whales 81 FR 62260, [Insert 223.213
novaeangliae. that breed or Sept. 8, 2016. 226.227].
winter in the
area of
mainland
Mexico and the
Revillagigedo
Islands,
transit Baja
California, or
feed in the
North Pacific
Ocean,
primarily off
California-
Oregon,
northern
Washington-
southern
British
Columbia,
northern and
western Gulf
of Alaska and
East Bering
Sea.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722; February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612; November 20, 1991).
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
3. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
4. In Sec. 224.101, in the table in paragraph (h), add a new citation,
in alphabetical order, under the critical habitat column for ``Whale,
humpback (Central America DPS)'' and ``Whale, humpback (Western North
Pacific DPS) under the Marine Mammals heading to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
----------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Whale, humpback (Central Megaptera Humpback whales 81 FR 62260, [Insert
America DPS). novaeangliae. that breed in Sept. 8, 2016. 226.227].
waters off
Central
America in the
North Pacific
Ocean and feed
along the west
coast of the
United States
and southern
British
Columbia.
Whale, humpback (Western Megaptera Humpback whales 81 FR 62260, [Insert
North Pacific DPS). novaeangliae. that breed or Sept. 8, 2016. 226.227].
winter in the
area of
Okinawa and
the
Philippines in
the Kuroshio
Current (as
well as
unknown
breeding
grounds in the
Western North
Pacific
Ocean),
transit the
Ogasawara
area, or feed
in the North
Pacific Ocean,
primarily in
the West
Bering Sea and
off the
Russian coast
and the
Aleutian
Islands.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, is limited to turtles while in the water.
PART 226--DESIGNATED CRITICAL HABITAT
0
5. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
6. Add Sec. 226.227, to read as follows:
Sec. 226.227 Critical habitat for the Central America, Mexico, and
Western North Pacific distinct population segments (DPSs) of humpback
whales (Megaptera novaeangliae).
Critical habitat is designated for the Central America, Mexico, and
Western North Pacific humpback whale DPSs 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) List of States and Counties. Critical habitat is designated in
waters off the coast of the following states and counties for the
listed humpback whale DPSs:
----------------------------------------------------------------------------------------------------------------
DPS State-counties
----------------------------------------------------------------------------------------------------------------
(1) Central America................................... (i) WA--Clallam, Jefferson, Grays Harbor, Pacific.
(ii) OR--Clatsop, Tillamook, Lincoln, Lane, Douglas,
Coos, and Curry.
(iii) CA--Del Norte, Humboldt, Mendocino, Sonoma, Marin,
San Francisco, San Mateo, Santa Cruz, Monterey, San
Luis Obispo, Santa Barbara, Ventura.
(2) Mexico............................................ (i) AK--Bristol Bay, Lake and Peninsula, Aleutians East,
Aleutian West, Kodiak Island, Kenai Peninsula, Valdez-
Cordova, unorganized boroughs, Skagway-Hoonah-Angoon,
Haines, Juneau, Sitka, Petersburg, Wrangell, Ketchikan
Gateway.
(ii) WA--Clallam, Jefferson, Grays Harbor, Pacific.
[[Page 54388]]
(iii) OR--Clatsop, Tillamook, Lincoln, Lane, Douglas,
Coos, and Curry.
(iv) CA--Del Norte, Humboldt, Mendocino, Sonoma, Marin,
San Francisco, San Mateo, Santa Cruz, Monterey, San
Luis Obispo, Santa Barbara, Ventura.
(3) Western North Pacific............................. AK--Bristol Bay, Lake and Peninsula, Aleutians East,
Aleutian West, Kodiak Island, Kenai Peninsula.
----------------------------------------------------------------------------------------------------------------
(b) Critical habitat boundaries for the Central America DPS.
Critical habitat for the Central America DPS includes all marine waters
within the designated areas as shown by the maps, including those
prepared and made available by NMFS pursuant to 50 CFR 424.18.
(1) Washington. The nearshore boundary is defined by the 50-m
isobath, and the offshore boundary is defined by the 1,200-m isobath
relative to MLLW. Critical habitat also includes waters within the U.S.
portion of the Strait of Juan de Fuca to an eastern boundary line at
Angeles Point at 123[deg]33' W.
(2) Oregon. The nearshore boundary is defined by the 50-m isobath.
The offshore boundary is defined by the 1,200-m isobath relative to
MLLW; except, in areas off Oregon south of 42[deg]10', the offshore
boundary is defined by the 2,000-m isobath.
(3) California. The nearshore boundary is defined by the 50-m
isobath relative to MLLW except, from 38[deg]40' N to 36[deg]00' N, the
nearshore boundary is defined by the 15-m isobath relative to MLLW; and
from 36[deg]00' N to 34[deg]30' N, the nearshore boundary is defined by
the 30-m isobath relative to MLLW. North of 40[deg]20' N, the offshore
boundary of the critical habitat is defined by a line corresponding to
the 2,000-m isobath, and from 40[deg]20' N to 38[deg]40' N, the
offshore boundary is defined by the 3,000-m isobath. From 38[deg]40' N
southward, the remaining areas have an offshore boundary defined by a
line corresponding to the 3,700-m isobath.
(c) Critical habitat boundaries for Mexico DPS. Critical habitat
for the Mexico DPS of humpback whales includes all marine waters within
the designated areas as shown by the maps, including those prepared and
made available by NMFS pursuant to 50 CFR 424.18.
(1) Alaska. The nearshore boundaries are generally defined by the
1-m isobath relative to mean lower low water (MLLW). In Bristol Bay and
on the north side of the Aleutian Islands, the seaward boundary of the
critical habitat is defined by a line extending due west from Egegik
(at 58[deg]14' N, 157[deg]28' W) out to 58[deg]14' N, 162[deg]0' W,
then southwest to 57[deg]25' N, 163[deg]29', then southward to
55[deg]41 N, 162[deg]41' W; and from this point, west to 55[deg]41' N,
169[deg]30' W, then southward through Samalga Pass to a boundary drawn
along the 2,000-m isobath on the south side of the islands. This
isobath forms the southern boundary of the critical habitat, eastward
to 164[deg]25' W. The 1,000-m isobath forms the offshore boundary for
the remainder of the critical habitat (along Aleutian Island and in the
Gulf of Alaska areas), except in Southeast Alaska, where the offshore
boundary extends out the 2,000-m isobath. Critical habitat extends into
Cook Inlet as far north as 60[deg]20' N, just south of Kalgin Island.
(2) Washington. The nearshore boundary is defined by the 50-m
isobath, and the offshore boundary is defined by the 1,200-m isobath
relative to MLLW. Critical habitat also includes waters within the U.S.
portion of the Strait of Juan de Fuca to an eastern boundary line at
Angeles Point at 123[deg]33' W.
(3) Oregon. The nearshore boundary is defined by the 50-m isobath.
The offshore boundary is defined by the 1,200-m isobath relative to
MLLW; except, in areas off Oregon south of 42[deg]10', the offshore
boundary is defined by the 2,000-m isobath.
(4) California. The nearshore boundary is defined by the 50-m
isobath relative to MLLW except, from 38[deg]40' N to 36[deg]00' N, the
nearshore boundary is defined by the 15-m isobath relative to MLLW; and
from 36[deg]00' N to 34[deg]30' N, the nearshore boundary is defined by
the 30-m isobath relative to MLLW. North of 40[deg]20' N, the offshore
boundary of the critical habitat is defined by a line corresponding to
the 2,000-m isobath, and from 40[deg]20' N to 38[deg]40' N, the
offshore boundary is defined by the 3,000-m isobath. From 38[deg]40' N
southward, the remaining areas have an offshore boundary defined by a
line corresponding to the 3,700-m isobath.
(d) Critical habitat boundaries for Western North Pacific DPS.
Critical habitat for the Western North Pacific DPS of humpback whales
includes all marine waters within the designated areas as shown by the
maps, including those prepared and made available by NMFS pursuant to
50 CFR 424.18.
(1) Alaska. The nearshore boundaries are generally defined by the
1-m isobath relative to mean lower low water (MLLW). In Bristol Bay and
on the north side of the Aleutian Islands, the seaward boundary of the
critical habitat is defined by a line extending due west from Egegik
(at 58[deg]14' N, 157[deg]28' W) out to 58[deg]14' N, 162[deg]0' W,
then southwest to 57[deg]25' N, 163[deg]29', then southward to
55[deg]41 N, 162[deg]41' W; and from this point, west to 55[deg]41' N,
169[deg]30' W, then southward through Samalga Pass to a boundary drawn
along the 2,000-m isobath on the south side of the islands. This
isobath forms the southern boundary of the critical habitat, eastward
to 164[deg]25' W. From this point, the 1,000-m isobath forms the
offshore boundary, which extends eastward to 158[deg]39' W. Critical
habitat also includes the waters around Kodiak Island and the Barren
Islands. The western boundary for this area runs southward along
154[deg]54' W to the 1,000-m depth contour, and then extends eastward
to a boundary at 150[deg]40' W. The area also extends northward to the
mouth of Cook Inlet where it is bounded by a line that extends from
Cape Douglas across the inlet to Cape Adam.
(e) Essential feature. Prey species, primarily euphausiids and
small pelagic schooling fishes of sufficient quality, abundance, and
accessibility within humpback whale feeding areas to support feeding
and population growth.
(f) 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,
where they overlap with the areas described in paragraph (b) of this
section:
(1) Pursuant to ESA section 4(a)(3)(B), all areas subject to the
Naval Base Ventura County, Point Mugu, CA, and the Naval Outlying
Field, San Nicolas Island, CA approved Integrated Natural Resource
Management Plans (INRMPs);
(2) Pursuant to ESA section 4(b)(2), the Quinault Range Site (QRS)
with an additional 10-km buffer around QRS and the Southeast Alaska
Acoustic Measurement Facility (SEAFAC).
(g) Maps of humpback whale critical habitat.
(1) Overview map of critical habitat for the Central America DPS of
humpback whales:
BILLING CODE 3510-22-P
[[Page 54389]]
[GRAPHIC] [TIFF OMITTED] TP09OC19.021
(2) Overview map of critical habitat for the Mexico DPS of humpback
whales:
[[Page 54390]]
[GRAPHIC] [TIFF OMITTED] TP09OC19.022
(3) Overview map of critical habitat for the Western North Pacific
DPS of humpback whales:
[[Page 54391]]
[GRAPHIC] [TIFF OMITTED] TP09OC19.023
[FR Doc. 2019-21186 Filed 10-8-19; 8:45 am]
BILLING CODE 3510-22-C