20180 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 090224232–0457–04] 

RIN 0648–AX50 

Endangered and Threatened Species: 

Designation of Critical Habitat for Cook 

Inlet Beluga Whale 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), designate 

critical habitat for the Cook Inlet beluga 

whale (Delphinapterus leucas) distinct 

population segment (DPS) under the 

Endangered Species Act (ESA). Two 

areas are designated, comprising 7,800 

square kilometers (3,013 square miles) 

of marine habitat. In developing this 

final rule we considered public and peer 

review comments, as well as economic 

impacts and impacts to national 

security. We have decided in the final 

rule to exclude the Port of Anchorage 

(POA) in consideration of national 

security interest. Additionally, 

consistent with the proposed rule, 

portions of military lands were 

determined to be ineligible for 

designation as critical habitat. We 

solicited comments from the public on 

all aspects of the proposed rule, and 

conducted four public hearings on the 

action. Along with the proposed rule, 

we published a draft economic impacts 

analysis, entitled ‘‘Draft RIR/4(b)(2) 

Preparatory Assessment/IFRA for the 

Critical Habitat Designation of Cook 

Inlet Beluga Whale.’’ This economic 

analysis has been completed to support 

the final designation. See ‘‘Final RIR/ 

4(b)(2) Preparatory Assessment/FRFA 

for the Critical Habitat Designation of 

Cook Inlet Beluga Whale’’ for a 

discussion of these topics. 

DATES: This rule will become effective 

on May 11, 2011. 

ADDRESSES: The final rule, maps, status 

reviews, and other materials supporting 

this final rule can be found on our Web 

site at: http://www.fakr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: Brad 

Smith (907–271–3023), Kaja Brix (907– 

586–7235), or Marta Nammack (301– 

713–1401). 

SUPPLEMENTARY INFORMATION: 

Rulemaking Background 

We are responsible for determining 

whether species, subspecies, or distinct 

population segments (DPSs) are 

threatened or endangered and for 

designating critical habitat for these 

species under the Endangered Species 

Act (ESA) (16 U.S.C. 1531 et seq.). On 

October 22, 2008, we published a Final 

Rule to list the Cook Inlet beluga whale 

as an endangered species (73 FR 62919). 

At the time of listing, we announced our 

intent to propose critical habitat for the 

Cook Inlet beluga whales. This critical 

habitat was subsequently proposed on 

December 2, 2009 (74 FR 63080). The 

proposed rule’s critical habitat for the 

Cook Inlet beluga whale was determined 

by considering information received in 

response to our Advance Notice of 

Proposed Rulemaking, sighting reports, 

satellite telemetry data, The Traditional 

and Ecological Knowledge of Alaska 

Natives (TEK), scientific papers and 

other research, the biology and ecology 

of the Cook Inlet DPS of beluga whales, 

and information indicating the presence 

of one or more of the identified primary 

constituent elements (PCEs) within 

certain areas of their range. The 

proposed rule identified ‘‘specific areas’’ 

within the geographical area occupied 

by the Cook Inlet beluga whale to be 

proposed as critical habitat. 

We considered various alternatives to 

the critical habitat designation for the 

Cook Inlet beluga whale. The alternative 

of not designating critical habitat for the 

Cook Inlet beluga whale would impose 

no economic, national security, or other 

relevant impacts, but would not provide 

any conservation benefit to the species. 

This alternative was rejected because 

such an approach does not meet the 

legal requirements of the ESA and 

would not provide for the conservation 

of Cook Inlet beluga whale. The 

alternative of designating all eligible 

occupied habitat areas also was 

considered and rejected, because some 

areas within the occupied range were 

not considered to be critical habitat, and 

did not contain the identified physical 

or biological features that are essential 

to the conservation of the Cook Inlet 

beluga. 

An alternative to designating critical 

habitat within all eligible occupied 

areas is the designation of critical 

habitat within a subset of these areas. 

Under section 4(b)(2) of the ESA, we 

must consider the economic impacts, 

impacts to national security, and other 

relevant impacts of designating any 

particular area as critical habitat. We 

have the discretion to exclude any 

particular area from designation as 

critical habitat if the benefits of 

exclusion (i.e., the impacts that would 

be avoided if an area were excluded 

from the designation) outweigh the 

benefits of designation (i.e., the benefits 

to the Cook Inlet beluga whale if an area 

were designated), so long as exclusion 

of the area will not result in extinction 

of the species. Exclusion under section 

4(b)(2) of the ESA of one or more of the 

areas considered for designation would 

reduce the total impacts of designation. 

The determination to exclude any 

particular areas depends on our ESA 

4(b)(2) analysis, which is described in 

detail in the ESA 4(b)(2) analysis report. 

This final rule includes several small 

changes to the areas proposed as critical 

habitat and, importantly, excludes 

under Section 4(b)(2) the Port of 

Anchorage (POA) from designated 

critical habitat for reasons relating to 

national security. We corrected errors 

within the proposed rule’s descriptions 

of the boundaries for this critical habitat 

so that the final rule utilizes the 

coordinate system of degrees, decimalminutes. We have also changed the 

sentence structure of the PCEs 

concerning noise and toxins in the final 

rule to improve clarity. 

The total quantifiable economic 

impact associated with this final rule is 

estimated to be between $157,000 to 

$472,000 (discounted at 7 percent) or 

$187,000 to $571,000 (discounted at 3 

percent). While we have excluded a 

small portion of the area originally 

proposed as critical habitat for national 

security reasons (the POA), that 

exclusion does not affect the economic 

impact analysis because the small size 

of the area indicates that the potential 

cost-savings are likely nominal (i.e., 

consultations will continue to occur to 

ensure proposed activities in those areas 

do not jeopardize the species or 

adversely modify or destroy adjacent 

areas of critical habitat). Additional 

economic impacts, both costs and 

benefits, that were not amenable to 

quantification, but nonetheless 

important to a complete evaluation of 

this action, were identified and 

analyzed qualitatively. Both the 

quantitative and qualitative economic 

effects of the final rule are presented, in 

detail, in the Final Regulatory Impact 

Review/4(b)(2) Preparatory Assessment/ 

Final Regulatory Flexibility Analysis. 

We promulgate this final rule because it 

results in a critical habitat designation 

that provides for the conservation of the 

Cook Inlet beluga whale, without 

economic effects of sufficient 

significance to warrant an exclusion 

from designation on that basis alone. 

Other areas within the species’ range 

did not contain the identified physical 

or biological features that are essential 


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Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Rules and Regulations 20181 

to the conservation of the Cook Inlet 

beluga. This alternative also meets the 

requirements under the ESA and our 

joint NMFS–USFWS regulations 

concerning critical habitat. 

Cook Inlet Beluga Whale Biology and 

Habitat Use 

The beluga whale is a small, toothed 

whale in the family Monodontidae, a 

family it shares with only the narwhal. 

Belugas are also known as ‘‘white 

whales’’ because of the white coloration 

of the adults. The beluga whale is a 

northern hemisphere species that 

inhabits fjords, estuaries, and shallow 

waters of the Arctic and subarctic 

oceans. Five distinct stocks of beluga 

whales are currently recognized in 

Alaska: Beaufort Sea, eastern Chukchi 

Sea, eastern Bering Sea, Bristol Bay, and 

Cook Inlet. The Cook Inlet population is 

numerically the smallest of these, and is 

the only one of the five Alaskan stocks 

occurring south of the Alaska Peninsula 

in waters of the Gulf of Alaska. 

A detailed description of the biology 

of the Cook Inlet beluga whale may be 

found in the Proposed Listing Rule (72 

FR 19854; April 20, 2007). 

Summary of Comments and Responses 

We requested comments on the 

proposed rule to designate critical 

habitat for Cook Inlet beluga whales and 

supporting documents (74 FR 63080; 

December 2, 2009). To facilitate public 

participation, the proposed rule was 

made available on our regional web 

page, and comments were accepted via 

standard mail, e-mail, and through the 

Federal eRulemaking portal. In addition 

to the proposed rule, several draft 

documents supporting the proposal, 

including an economic report, were 

posted. In response to comments, the 

original 60-day comment period was 

extended an additional 30 days, ending 

on March 3, 2010. Public hearings were 

held in Kenai, Soldotna, Wasilla, and 

Anchorage, Alaska. 

We received 135,463 individual 

submissions in response to the proposed 

rule (including public testimony during 

the four hearings). This included 

134,959 form letter submissions and 504 

unique submissions. The majority of 

comments concerned economic and 

other impacts for consideration for 

exclusions, the regulatory process for 

critical habitat designation, legal issues, 

essential features or PCEs, additions to 

critical habitat, and biological issues. 

We have considered all public 

comments, and provide responses to all 

significant issues raised by commenters. 

We have not responded to comments 

outside the scope of this rulemaking, 

such as whether NMFS’ prior decision 

to list the Cook Inlet beluga whale as 

endangered was proper. We have 

categorized comments by issue and, 

where appropriate, combined similar 

comments. 

General Comments on Critical Habitat 

Comment 1: In the proposed rule’s 

discussions at 74 FR at 63084, NMFS 

has not listed activities that will deter 

use of or access to Area 1 by beluga 

whales. 

Response: In the referenced 

paragraph, we simply endeavored to 

provide a description of the habitat 

values and associations within the 

proposed areas, along with a discussion 

of why these areas may be sensitive or 

vulnerable to various stressors. Later in 

the proposed rule, we provided a brief 

description of those activities that may 

adversely modify critical habitat, or that 

may be affected by the designation. See 

74 FR at 63089. Examples of activities 

that may deter use or access could 

include causeways, dams, bridges, or 

tidal generation projects. 

Comment 2: Cook Inlet anadromous 

fish runs are healthy and appropriately 

protected under existing regulatory 

mechanisms. 

Response: We recognize and 

acknowledge that the current 

management structure of the salmon 

fisheries has generally provided for the 

sustained harvest and productivity of 

salmon in Cook Inlet. However, it 

should also be noted that there are 

problems inherent with any 

management system. The size of several 

king (Chinook) salmon returns in 2009 

and 2010 was substantially below 

average, resulting in closures of sport 

and commercial fisheries in the Inlet. 

The Deshka River king salmon runs 

were extremely low in 2008 and 2009, 

resulting in closures. The Susitna River 

sockeye salmon runs failed to meet 

minimum escapement goals for 5 of 7 

years between 2001 and 2007. Sockeye 

commercial harvests for the Northern 

District of Cook Inlet fell from an 

average of 180,000 fish in the 1980s to 

an average of 26,000 since 2002. The 

Alaska Department of Fish and Game 

forecasts Kenai River sockeye runs to be 

below average for 2010, citing 

management decisions leading to overescapement as a contributing factor. 

Comment 3: The final rule should 

acknowledge the riparian protections 

under the State’s forest practices, as 

well as other regulations that protect 

water quality and other protections. 

Response: While there exist myriad 

environmental and conservation laws, 

restrictions, and practices at State and 

local levels, these are not pertinent to 

this designation unless they concern 

whether the identified essential features 

of that habitat ‘‘may require special 

management or protection.’’ The fact 

that the State and local governments 

have instituted such measures is some 

evidence that these essential features do 

in fact require special management. 

Comment 4: NMFS should provide 

supporting evidence for its 

identification of the tendency for 

belugas to occur in high concentrations, 

predisposing them to harm from events 

such as oil spills, as reason for 

designation of Area 1. The statement is 

speculative. This commenter also 

challenged our evidence that oil spills 

are a threat to beluga whales or 

predisposes them to harm, that these 

areas are susceptible to oil spills, or that 

spills are likely to occur here. 

Response: We had not proposed this 

fact to be a ‘‘reason’’ for designating 

critical habitat. We disagree this 

statement is speculative, as there are 

multiple lines of evidence, including 

NMFS’ 2008 Conservation Plan for Cook 

Inlet Beluga Whale and many peer 

reviewed studies, that beluga whales 

occur seasonally in high densities 

within specific areas of the upper Inlet. 

Our purpose in these statements was not 

to provide an exhaustive assessment or 

analysis of oil spills, but to indicate the 

ecological attributes of Area 1 to Cook 

Inlet belugas and to recognize the 

sensitivities imposed by their habit of 

occupying relatively small, enclosed 

areas for feeding and other purposes 

during the open water months. The 

occurrence of these whales in high 

densities here not only predisposes 

them to potential harm from hazardous 

material releases, but also disease 

outbreaks, harassment, poaching, and 

other factors. 

Comment 5: Additional research is 

needed to support proper management 

of the Cook Inlet beluga whales 

including this critical habitat 

designation. 

Response: We agree generally that 

additional research is needed, and we 

identified in the 2008 Conservation Plan 

the need to ‘‘improve our understanding 

of the biology of Cook Inlet beluga 

whales and the factors limiting the 

population’s growth.’’ See: Conservation 

Plan for the Cook Inlet Beluga Whale 

(Oct. 2008) at 63. We disagree, however, 

that additional research is needed to 

support the designation of critical 

habitat. The ESA requires NMFS to 

designate critical habitat concurrently 

with the listing decision, 16 U.S.C. 

1533(a)(3)(A)(i), and to base that 

decision on the ‘‘best scientific data 

available,’’ id., section 1533(b)(2). We 

have used the best scientific data 

available in designating critical habitat 


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20182 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Rules and Regulations 

for the Cook Inlet beluga whale. We are 

not required to conduct field research 

prior to designating critical habitat. 

Comment 6: NMFS must link its 

critical habitat determinations to 

credible threats, and must fully explain 

its rationale for designating Area 2 as 

critical habitat. 

Response: There is no requirement to 

link designation of critical habitat with 

threats. We are required to base critical 

habitat designations on physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection, as we have 

done in this rule. Our discussion of 

potential threats to critical habitat was 

provided so the reader might better 

understand the proposed designation in 

context of the biology of the Cook Inlet 

beluga whales and the various stressors 

that may occur in these areas. Such a 

discussion also assists in the description 

and evaluation of those activities which 

may adversely modify the critical 

habitat or otherwise be affected by the 

designation. We believe the Proposed 

Rule presented the best scientific data 

and information available which justify 

the inclusion of Area 2 as critical 

habitat. We described the known or 

probable habitat attributes of this area, 

including use for fall and winter 

feeding, and discussed distribution and 

dive behavior of these whales within the 

area, which also support the feeding and 

overwintering habitat values here. We 

identified several essential physical and 

biological features of critical habitat for 

Cook Inlet beluga whales, established 

that those features were found within 

Area 2, and confirmed that they may 

require special management or 

protections, as required by the ESA. We 

agree that present knowledge of the 

habitat characteristics of Area 2 is less 

than that of Area 1, and that it is 

desirable to gather additional data to 

better understand the habitat needs of 

beluga whales here. However, we do not 

find that the existing information, nor 

the discussion and analysis of the area 

within the Proposed Rule, were 

insufficient. Further, none of the 

commenters provided data or 

information contradicting the data on 

which the proposed rule relied. 

Physical or Biological Features 

Essential for Conservation (PCEs) 

Comment 7: We received many 

comments concerning the PCEs, or 

essential features, indicating some 

confusion and uncertainty regarding 

their function and significance. Others 

felt that our identification of PCEs was 

flawed because these are not presently 

impeding the recovery of Cook Inlet 

beluga whales, or that the PCE 

thresholds are set unreasonably. Still 

others believe that a PCE equates to 

adverse modification or other 

objectionable standard by which various 

activities and projects would be 

prohibited. 

Response: The ESA defines critical 

habitat in terms of essential physical or 

biological features, and Federal 

regulations require us to focus on these 

features in the designation process. It is 

not necessary that a feature be presently 

impaired or limiting, only that it 

provide an essential service or function 

to the conservation of the listed species 

and may require special management 

considerations or protection. Also, a 

PCE is not meant to describe a threshold 

condition beyond which critical habitat 

would be adversely modified or 

destroyed. Rather, potential threats to 

the PCEs will often be the factors 

evaluated in making determinations 

regarding whether a proposed Federal 

action will adversely modify or destroy 

critical habitat. For example, we believe 

an essential physical feature to be the 

unrestricted passage and movement of 

beluga whales among critical habitat 

sites. A project, such as a dam, could 

potentially isolate parts of the whales’ 

critical habitat and prevent movement 

among the sites. In evaluating the effects 

of such a project under section 7 of the 

ESA, we would consider whether this 

isolation would impact beluga whales to 

a degree that critical habitat was no 

longer functional to the conservation of 

the species. If it caused the loss of either 

of these functional values, we would 

consider this adverse modification. 

However, the mere fact that the project 

may isolate parts of the critical habitat 

or prevent movement among those sites 

would not, in itself, constitute adverse 

modification or destruction of critical 

habitat. Similarly, a project that caused 

whales to abandon critical habitat may 

not necessarily result in a determination 

of adverse modification or destruction 

of critical habitat, unless such 

abandonment would preclude the 

conservation of these whales. 

Comment 8: The essential features 

identified in the proposed rule are 

important for beluga survival, but NMFS 

has not demonstrated these features are 

limiting the production or recovery of 

these whales. 

Response: The ESA defines critical 

habitat in terms of those physical or 

biological features that are essential to 

the conservation of the species and 

which may require special management 

considerations or protection. The ESA 

does not define the word ‘‘essential.’’ We 

agree with the commenter that the 

identified features are important for 

beluga conservation, and believe this 

importance is such that they may be 

considered ‘‘essential.’’ We disagree, 

however, that the features must be 

found to be limiting to the species 

before they may be considered essential. 

A limiting factor may be described as 

one that controls a system or species 

(such as air), or one that is present in 

the smallest supply relative to the 

demands of the system/species (perhaps 

a prey species). In either case, the ESA 

contains no requirement that essential 

features are restricted to those that may 

be limiting. Our approach will vary to 

fit the circumstances of a particular 

species. 

Comment 9: The identified PCEs lack 

specificity (e.g., ‘‘The absence of toxins 

or other agents of a type or amount 

harmful to beluga whales’’). NMFS 

should identify threshold values for all 

PCEs as it has for in-water noise. 

Response: The ESA requires that we 

premise the designation of critical 

habitat on essential features, and the 

regulations at 50 CFR 424.12(b) describe 

the PCEs as including, but not limited 

to, roost sites, nesting grounds, 

spawning sites, water quality or 

quantity, tides, and vegetation types. 

Clearly, these descriptions are general in 

nature and, we believe, far less 

descriptive than those presented in the 

proposed rule. We relied on the best 

scientific data available to provide as 

much specificity as possible. None of 

the commenters have provided data 

allowing us to further refine our 

description of the PCEs. The condition 

of adverse modification will be 

determined, in part, on whether an 

activity impairs the functional value of 

the essential features to the point that 

they cannot provide for the conservation 

of the species. In adding as much 

description to these features as 

permitted by the best scientific data 

available (e.g., not just ‘‘pollutants,’’ but 

the ‘‘absence of toxins or other agents of 

a type or amount harmful to beluga 

whales’’) it is our intent to avoid the 

situation where any activity that may be 

associated with one or more essential 

feature would be considered as causing 

the adverse modification or destruction 

of critical habitat. We have also 

modified the wording of this PCE in the 

final rule to improve clarity. 

Comment 10: NMFS needs to present 

data to support its explanation for 

equating ‘‘mudflats’’ with ‘‘shallow and 

nearshore waters proximate to certain 

tributary streams.’’ NMFS should defend 

its rationale for delimiting this feature to 

waters within the 30-foot (9.1 m) depth 

contour. NMFS has arbitrarily expanded 

this PCE beyond that described in Goetz 

et al. (2007). 


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Response: Relying on the best 

scientific data available, the proposed 

rule explains the habitat attributes and 

importance of nearshore areas to Cook 

Inlet beluga whales. These whales 

selectively occupy these areas during 

the ice-free months, and may display 

year-round association with the 

nearshore zones of Cook Inlet. We 

believe this affinity is due to feeding 

strategies and perhaps breeding, calving, 

molting, and predator avoidance. 

Research on beluga whales elsewhere 

has found beluga distribution may be 

associated with depth and bottom 

structure, as well as prey abundance. 

Using these data, we next considered 

the results of Goetz et al. (2007) which 

found significant associations between 

summer distributions of Cook Inlet 

belugas, mudflats, and flow 

accumulation. The Goetz et al. (2007) 

paper is important in that it provides 

the first spatial representation of this 

habitat attribute, and supports the 

observations of other research as well as 

the TEK of Alaskan Natives. The paper 

does not incorporate data on other 

factors potentially relevant to beluga 

distribution in Cook Inlet such as water 

temperatures, turbidities, salinities, or 

the fish species and strength of fish runs 

for these waters. That paper states ‘‘The 

occurrence of beluga whales near stream 

mouths may reflect a feeding strategy 

whereby belugas take advantage of 

highly-concentrated fish runs in shallow 

channels where they are easy to catch’’, 

and found the majority of sightings were 

within 11.5 km of medium flow 

accumulation inlets. The Goetz et al. 

(2007) paper, however, is not the sole 

scientific basis for our determination, 

nor is it necessarily the most significant. 

It is clear that many of the areas 

identified as in the Goetz et al. (2007) 

paper as ‘‘mudflats,’’ are rarely 

associated with beluga sightings. In 

reviewing the best scientific data 

available, we found that whereas the 

Goetz et al. (2007) paper’s use of 

‘‘mudflats’’ implies a condition of the 

seafloor material, this feature is best 

described by its tidal exposure. 

Therefore, in identifying the PCE, we 

used the qualifier of waters less than 30 

feet (9.1 m) in depth to clarify what was 

described as ‘‘mudflats’’ by Goetz et al. 

(2007). We also felt that, while this 

feature covers a range of over 7 miles 

(11.5 km) in which most whales have 

been found, a radial distance of 5 miles 

(8.0 km) from the high and medium 

flow distribution inlets is more 

descriptive of the actual distribution of 

these whales and the essential feature, 

in consideration of the best aerial and 

satellite data available. 

Comment 11: NMFS relied too heavily 

on Goetz et al. (2007), a paper with 

serious flaws. NMFS should have 

incorporated fish runs into its models, 

and has arbitrarily ignored this 

important element. 

Response: We relied on the best 

scientific data and information 

available, including models such as the 

one developed by Goetz et al. (2007), in 

preparing the proposed rule. We did not 

develop new models as part of the 

rulemaking, and the ESA does not 

require us to do so or to conduct field 

research. Rather, we are required to 

designate critical habitat on the basis of 

the best scientific data available. Goetz 

et al. (2007)’s research and paper were 

not conducted to define critical habitat. 

Goetz et al. (2007) exists as one of 

several sources we considered during 

this rulemaking. Both NMFS and the 

paper itself recognize the paper’s 

limitations from not including various 

physical and biological variants, most 

notably anadromous fish species and 

run strengths. Despite this information, 

the list of high and medium flow 

accumulation waters reported in the 

paper indicate that all such rivers are 

anadromous fish waters and that flow 

accumulation has some association, and 

may be a reasonable proxy, for 

anadromous fish. The inclusion of fish 

species or numbers of anadromous fish 

utilizing these waters would not change 

the list, but could only add another 

descriptive layer to this essential 

feature. The utility of such additional 

description is unclear and probably 

non-existent. 

Comment 12: NMFS has incorrectly 

used Goetz et al. (2007) to identify PCEs 

within Area 2, particularly for winter 

periods for which this paper did not 

include data. Applying this model to 

winter has resulted in NMFS incorrectly 

identifying habitats that are impossible 

or highly improbable for belugas to 

inhabit. 

Response: While we included the 

Goetz et al. (2007) paper in our 

consideration of scientific research and 

literature related to critical habitat and 

adopted its conclusions as 

representative and supportive of our 

proposed designation, we are not 

necessarily in agreement with every 

statement made within the paper. This 

is particularly true for the paper’s 

assertion that sea ice in winter makes 

inhabiting shallow waters too hazardous 

for marine mammals. While the paper 

does not define what depths were 

considered to be ‘‘shallow,’’ there is 

ample evidence that beluga whales 

occur in such areas during winter. 

Indeed, beluga whales are variously 

described as ‘‘ice associated’’ or ‘‘ice 

dependent’’ species, and we know of no 

beluga population that is not found 

within areas subject to seasonal ice 

formation. Satellite tagging data (see 

NMFS’ 2008 NMFS Conservation Plan 

for the Cook Inlet Beluga Whale) from 

Cook Inlet beluga whales indicates that 

these whales are found in nearshore 

areas during winter; in fact these data 

show whales occupying the heads of 

Turnagain and Knik Arms during 

periods in which maximum ice coverage 

would be expected. 

While Goetz et al. (2007) did not 

include (or have access to) distribution 

data for winter months, Goetz et al. 

(2007) presents other information 

demonstrating the importance of 

nearshore areas proximate to 

anadromous fish streams as an essential 

habitat attribute. This attribute within 

Area 2 exists during the late summer 

and fall months, as whales move west 

and south transitioning from summer 

habitat in the upper Inlet to winter 

habitats. During this time, we believe 

the whales take advantage of the late 

coho runs along the west side of Cook 

Inlet. This behavior occurs well before 

seasonal ice formation (sea ice is much 

less prevalent in the lower Inlet), and 

we believe it is reasonable to assume the 

physical qualities of nearshore feeding 

habitat near salmon streams in July are 

similar to those for nearshore feeding 

habitat near salmon streams in October. 

The 2008 NMFS Conservation Plan for 

the Cook Inlet Beluga Whale includes 

sighting data of beluga whales in the 

lower Inlet, and suggests these areas 

were important habitat sites when the 

beluga whales were more abundant. 

Finally, we emphasize the critical 

habitat boundaries are not drawn 

around the essential features/PCEs. 

Rather, these features delineate critical 

habitat from non-critical habitat. The 

best scientific data available indicates 

that the critical habitat area referred to 

as Area 2 contains anywhere from one 

to all of the identified physical or 

biological features essential to the 

whales’ conservation. 

Comment 13: NMFS should list all the 

waters it considers to be high and 

medium flow accumulation rivers for 

purposes of describing the PCEs. 

Response: We have included this list 

on our Regional website (see ADDRESSES

above). 

Comment 14: NMFS should include 

pink salmon, Pacific herring, and longfinned smelt as PCEs. 

Response: We identified important 

prey species as essential biological 

features or PCEs based on the results of 

research on fatty acid signatures and 

stable isotope analysis from beluga 

whale tissue, stomach samples from 


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20184 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Rules and Regulations 

Cook Inlet belugas, and traditional 

knowledge. We did not find the 

proposed species were well-supported 

by these sources and cannot determine 

that they are essential based on current 

knowledge. 

Comment 15: NMFS’ proposed PCE 

‘‘The absence of toxins or other agents 

of a type or amount harmful to beluga 

whales’’ is too vague. There are readily 

available data defining the types and 

amounts of contaminants that would be 

harmful to beluga whales, but NMFS 

has not used this information. 

Response: Please see our earlier 

response to comment #9 regarding 

specificity within the definitions of 

essential features and PCEs. We relied 

on the best scientific data available in 

designating critical habitat for the Cook 

Inlet beluga whale. We are not aware of 

any existing data that would allow for 

greater specificity concerning harmful 

contaminant levels in beluga whales, 

and none of the commenters provided 

any or indicated a specific source of 

such data. We recently contracted for an 

assessment of risks to beluga whales 

from chemical exposures (URS, 2010), 

that found ‘‘reliable and quantitative 

information that related measured body 

burdens to observed adverse effects is 

lacking, especially within a doseresponse context.’’ Information relating 

to the presence of persistent organics, 

measured primarily in the whales’ 

blubber, exists, and there are some 

studies on the presence of 

methylmercury and other metals, but 

very little or no toxicity information is 

available for beluga whales and other 

marine mammals regarding the majority 

of harmful chemicals. The assessment 

report goes on to state that, even for 

those few studies in which some 

threshold values are presented for other 

species, such studies are fraught with 

uncertainty and should be viewed only 

as a preliminary comparison to 

determine whether further evaluation is 

warranted. 

We believe that, had we employed 

threshold values of chemicals which 

arguably cause ‘‘harm’’ to other species, 

we would have created an assessment 

methodology for adverse modification of 

critical habitat that could be both 

insufficiently protective of these whales 

and unnecessarily restrictive. The toxin 

PCE as promulgated provides the best 

level of specificity possible in light of 

the best scientific data available. This 

PCE does not simply include all 

pollutants; it includes only those of a 

type and quantity/concentration 

harmful to beluga whales. Moreover, it 

is important to note that the 

introduction of any pollutants that are 

harmful to beluga whales would require 

the evaluation of the effect of such 

pollutants on the PCE, but it would not 

necessarily equate to adverse 

modification. We would evaluate the 

proposal by considering the 

implications of the harmful pollutants 

to the PCEs and to the conservation of 

Cook Inlet beluga whales. 

Comment 16: Unrestricted passage 

between habitat areas is consistent with 

the knowledge of the spatial and 

temporal dynamics of the primary 

beluga prey species, yet NMFS has 

shown no evidence that passage is being 

restricted to the extent of limiting 

productivity or recovery. 

Response: Please refer to our earlier 

response to comment #7 concerning 

limiting aspects of habitat and their 

relation to essential features and PCEs. 

We agree that no evidence currently 

exists indicating that passage among 

critical habitat areas is impeded to the 

extent of preventing recovery. The 

validity of this condition as a PCE is not 

dependent on whether it is limiting to 

the population. The Conservation Plan 

includes discussion of various threats to 

these whales, many of which could 

impede access among critical habitat 

sites. An action that would result in 

restricted passage would not necessarily 

result in a finding of adverse 

modification. Under section 7 of the 

ESA, we will evaluate a proposed 

Federal action’s potential to destroy or 

adversely modify critical habitat by 

considering the implications of any 

restriction on the movement among 

critical habitat sites to the conservation 

of Cook Inlet beluga whales. 

Comment 17: NMFS’s proposed PCE 

‘‘The absence of in-water noise at levels 

resulting in the abandonment of habitat 

by Cook Inlet whales’’ is too vague. 

NMFS should provide an objective, 

measurable noise level in the definition 

of this PCE. 

Response: We developed each PCE 

based on the best scientific data 

available. Because empirical data exist 

to help us understand the noise levels 

at which beluga whales may react 

behaviorally or become injured, it is 

reasonable to assume quantified 

standards could be developed in the 

future for this PCE. Existing data, 

however, are based on relatively few 

animals held in captivity and the 

qualitative results of various field 

observations and research. We currently 

recognize in-water noise exceeding 120 

dB re 1 μPa as the threshold for 

harassment of marine mammals 

presented with a continuous noise 

source, and 160 dB re 1 μPa for 

impulsive noise. However, ambient 

(background) in-water noise levels in 

lower Knik Arm presently exceed 120 

dB, and we felt it unnecessarily 

restrictive to describe this standard as a 

PCE. Similarly, the 160 dB threshold 

relates to harassment. We do not have 

a standard value for the level of noise 

above which beluga whales may 

permanently abandon habitat. From 

research and monitoring of in-water 

work in Cook Inlet, it is apparent that 

beluga whales have not abandoned 

habitat areas due to temporary 

exposures to noise at this level. 

Therefore, this numeric standard may 

also be too restrictive. There exists 

considerable variability in the reaction 

of whales to noise, depending on the 

nature of the noise, life history, 

behavior, sex, context, tolerance, and 

adaptation. The science of marine 

mammal acoustics is very complex and 

made more difficult within the dynamic 

setting of Cook Inlet. As a result, we can 

only assign a qualitative standard to this 

PCE unless and until data become 

available allowing us to assign a 

quantitative standard. 

Comment 18: NMFS should describe 

the PCE addressing in-water noise as 

‘‘the absence of in-water noise that 

results in adverse impacts to the 

species’ survival and recovery.’’ The 

commenter points out that noise below 

levels that may cause whales to abandon 

habitat areas could still have severe 

impacts on these animals. 

Response: The commenter’s proposed 

PCE is not that functionally different 

from the one proposed in one important 

respect. When we evaluate a Federal 

action under section 7 of the ESA, we 

will consider whether the action will 

introduce noise that will result in the 

abandonment of critical habitat and 

whether such abandonment will, in 

turn, affect the whales’ conservation. 

We will also consider whether the noise 

would affect the whales’ survival 

because section 7 directs Federal 

agencies to ensure that their actions do 

not (a) result in the destruction or 

adverse modification of critical habitat 

or (b) jeopardize the continued 

existence of the species. The 

commenter’s proposed PCE combines 

these two standards (and conflates 

them, a formulation which the Ninth 

Circuit struck down in Gifford Pinchot 

Task Force v. U.S. Fish & Wildlife Serv., 

378 F.3d 1059 (9th Cir. 2004)). 

Comment 19: The PCE concerning 

noise should be re-worded to reduce the 

noise levels permitted to 120 dB or 

lower, reduce the duration of allowable 

noise, and reduce the frequency of 

anthropogenic noise. 

Response: The identified essential 

features or PCEs are not intended to be 

limitations or stipulations. They 

describe various features of the 


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environment that we consider essential 

to the conservation of these whales. We 

do not believe in-water noise levels 

below 120 dB re 1 μPa are necessary to 

conserve these whales in all cases. In 

fact, ambient noise in areas in which 

these whales occur, such as lower Knik 

Arm, often exceeds 120 dB. Similarly, 

behavioral reaction and other 

consequences of noise exposure 

(duration and frequency) are difficult to 

predict. For this reason, we describe this 

PCE in terms of its effect (abandonment 

of habitat) rather than a finite quantity 

or level. 

Comment 20: NMFS fails to identify 

the existing empirical data, or explain 

the science and rationale used in 

establishing the noise PCE, and must 

provide this information along with an 

additional public comment period. 

Response: See previous response. The 

proposed rule stated that empirical data 

exist on the reaction of beluga whales to 

in-water noise for harassment and 

injury, but are lacking regarding 

reactions such as avoiding certain areas. 

The NMFS’ 2008 Conservation Plan (pp. 

58–60, 66–67) provides a detailed 

description of the issue of noise and 

Cook Inlet belugas, and includes 

references to applicable research and 

traditional knowledge accounts which 

support the proposed rule’s assessment 

of the importance of sound to beluga 

whales. 

Comment 21: NMFS needs to 

acknowledge that beluga whales have 

co-existed with anthropogenic noise in 

Cook Inlet for decades and that there is 

no information or data to indicate noise 

is a threat or contributing factor to their 

abundance. 

Response: Our discussion on the 

effects of noise in the proposed rule is 

consistent with the 2008 Conservation 

Plan, which identified noise as a 

potential threat. That plan presents 

several reasons why noise may be 

considered a threat, including the facts 

that noise is known to cause injury or 

behavioral changes to beluga whales, 

and that TEK observations associate 

diminished presence of belugas with inwater noise. The commenter is correct 

in stating that no data currently exist to 

place in-water noise as a contributing 

factor in the decline of the Cook Inlet 

belugas. 

Comment 22: NMFS needs to provide 

further specificity and thresholds in its 

description of the PCEs for this critical 

habitat. 

Response: As discussed above, we 

defined each PCE as specifically as we 

could, in light of the best scientific data 

available. Specific, quantitative 

threshold values would be useful in the 

formulation of any PCE (e.g., a PCE is 

gravel between 3.0cm and 7.0cm in 

diameter, as opposed to spawning 

material). We are not aware, and none 

of the commenters provided sources, of 

any existing data that would allow for 

greater specificity in the formation of 

the PCEs for the Cook Inlet beluga 

whales than that which we used. The 

ESA does not require us to conduct field 

research to obtain such data. In light of 

the time lines for the designation of 

critical habitat, such research was not 

feasible. 

Comment 23: NMFS has taken a 

simplistic approach to designating 

critical habitat by drawing a line around 

the primary, currently occupied habitat. 

NMFS should develop a more discrete 

approach based on the actual presence 

of PCEs. 

Response: The critical habitat 

identified in the proposed rule was not 

developed by drawing lines around the 

Cook Inlet beluga whales’ currently 

occupied habitat. To the contrary, large 

portions of the occupied habitat were 

not included with the designation 

because we concluded that those areas 

do not contain features essential to the 

Cook Inlet beluga whales’ conservation 

which may require special management 

considerations or protection. We 

determined the critical habitat 

boundaries by confirming the presence 

of one or more of the identified PCEs/ 

essential features within the critical 

habitat area, as required by the ESA. We 

are not required to designate as critical 

habitat all areas in which a PCE may 

occur, only that those critical habitat 

areas contain one or more of the PCEs. 

Comment 24: The presence of the 

identified PCEs is not uniform 

throughout Cook Inlet, and NMFS 

should identify those specific areas that 

actually contain the important habitat 

features as critical habitat, rather than 

the areas in their entirety. 

Response: We included in the 

designation of critical habitat only those 

critical habitat areas that contain one or 

more of the PCEs. The distribution of 

the identified PCEs is not uniform. 

However, we believe the ESA provides 

some latitude to the designating agency 

here. The implementing regulations at 

50 CFR 424.12 discuss the criteria for 

designating critical habitat. Part 

424.12(d) states that ‘‘When several 

habitats, each satisfying the 

requirements for designation as critical 

habitat, are located in proximity to one 

another, an inclusive area may be 

designated as critical habitat.’’ Many of 

the identified PCEs occur throughout 

Cook Inlet and the proposed critical 

habitat. Other PCEs, such as shallow 

areas near median and high flow waters 

that may be more discretely distributed, 

are also so numerous as to be nearly a 

continuous feature. It simply would not 

be practical or effective in the 

conservation of the Cook Inlet beluga 

whale to designate its critical habitat by 

circumscribing discrete, individual 

areas around the PCEs. 

Comment 25: The list of PCEs NMFS 

has identified implies other elements 

are not necessary for the conservation 

and recovery of Cook Inlet beluga 

whales, leaving important gaps that are 

critical to these whales. NMFS should 

include as a PCE waters deeper than 30 

feet (9.1m) in depth, or demonstrate 

these are not ‘‘essential.’’ 

Response: While we acknowledge 

beluga whales are distributed 

throughout the Inlet, we believe discrete 

habitat areas exist that are, in fact, 

‘‘critical’’ in the sense that they meet the 

ESA definition and provide an essential 

feature (e.g., feeding or calving sites) not 

necessarily found throughout the 

occupied range of this species/DPS. 

Further, scientific data, surveys, and 

TEK provide support for the 

identification of such discrete areas, but 

data are lacking which would support 

the inclusion of all waters of Cook Inlet. 

The addition of a PCE of waters deeper 

than 30 feet (9.1m) would likely not 

result in the inclusion of any additional 

areas as critical habitat; rather, it would 

merely confirm the designation of the 

existing areas. Future revisions to this 

critical habitat may be made as new 

scientific data become available that 

may alter the list of PCEs or the 

boundaries of this critical habitat. 

Comment 26: NMFS has not provided 

sufficient rationale to support 

designation of critical habitat in the 

nearshore area along the west coast of 

the lower Inlet nor Kachemak Bay. 

NMFS should only designate those areas 

along the west side of the Inlet and in 

Kachemak Bay that actually contain the 

habitat features important for belugas. 

Response: We disagree. The west side 

of the Inlet and Kachemak Bay contain 

one or more of the identified PCEs, and 

the habitat value and importance of 

Area 2, which includes these areas, are 

described in the rule. The offshore 

boundary for Area 2 of 2 nautical miles 

(3.2km) reflects the data gathered in 

Goetz et al. (2007), which found the 

majority of whale locations to be within 

2.7 km of mudflats and 11.5 km of 

medium flow rivers. While the 11.5 km 

zone around medium flow rivers would 

argue for an offset similar to that used 

in the PCE to describe nearshore waters 

proximate to certain anadromous waters 

(5 miles, or 8km), we felt that a distance 

of 2 nautical miles (3.7 km) was more 

reflective of the actual habitat use based 

upon the Goetz et al. (2007) model, 


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expertise and observations of NMFS 

researchers, and the reports and 

observations of whales in this area by 

the Alaska Department of Fish and 

Game, National Park Service, and 

private parties. Please note also that the 

5-mile (8km) distance around these 

(high and medium flow) anadromous 

waters describes the PCE, and not the 

boundary of the critical habitat. 

Comment 27: There are discrepancies 

between the depiction and boundaries 

of critical habitat within the proposed 

rule, in that there are differing 

definitions of Areas 1 and 2 in different 

sections. The map accompanying the 

rule was not at sufficient resolution to 

be useful. 

Response: The proposed rule 

contained several discrepancies in the 

coordinates and mapping conventions 

used to describe the boundaries of the 

critical habitat. Corrections have been 

made within the final rule. A higher 

resolution map of this critical habitat 

will be added to our regional Web site 

at http://www.fakr.noaa.gov. 

Comment 28: NMFS’ statement that 

‘‘there remain additional and unmet 

management needs owing to the fact 

that none of these management regimes 

is directed at the conservation and 

recovery needs of Cook Inlet beluga 

whales’’ is objectionable. There is no 

evidence that supports a lack of 

effectiveness of any of the management 

regimes in place in Cook Inlet or that 

any management or regulatory gap 

contributed to the endangered listing of 

Cook Inlet beluga whales, or limits its 

recovery. 

Response: The quoted statement does 

not assert that the lack of effective 

management in Cook Inlet contributed 

to the whale’s listing or limits its 

recovery. As explained in the proposed 

rule, the ESA defines critical habitat as 

areas on which are found those physical 

or biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection. For each 

essential feature we identified, we 

determined that it may require special 

management considerations or 

protection. One of the reasons for this 

finding is the lack of any existing laws, 

regulations, or practices that provide for 

the management or protection of these 

features for the conservation of Cook 

Inlet beluga whales. It is therefore 

foreseeable, if not likely, that through 

the ESA section 7 consultation process, 

we will offer recommendations to 

protect the essential features, which 

would otherwise remain without such 

protection, in order to ensure the 

conservation of the beluga whale. We 

agree that existing laws and regulations 

provide some benefit to these whales 

and to their conservation. We disagree 

with the statement that the endangered 

status of these whales is unrelated to a 

lack of effective management. In fact, we 

believe much of the decline in this DPS 

is attributable to unregulated 

subsistence harvest practices prior to 

regulation and management of these 

hunts. 

Comment 29: Those areas that do not 

require special management 

consideration or protections are not 

critical habitat and are not to be 

designated as such under the ESA. 

Existing state and Federal 

environmental management and 

regulatory regimes already protect 

habitat for beluga whales, justifying a 

more narrow identification of areas as 

critical habitat. 

Response: We disagree. The definition 

of critical habitat (16 U.S.C. 1532(5)(A)) 

requires that the physical or biological 

essential features may require special 

management considerations or 

protection, rather than that the area 

require such protections. Any area may 

be designated as critical habitat 

provided it contains one or more of 

these features, and provided that those 

features may require special 

management or protection. 

Comment 30: NMFS unjustifiably 

disregarded comments made during 

proposed rulemaking identifying the 

many existing refuges, sanctuaries, state 

critical habitat areas, legal protections, 

and mitigative requirements that 

provide protection to beluga whales and 

their habitat. 

Response: We recognize that many 

conservation and environmental actions 

occur through the efforts of the State of 

Alaska, local governments, and private 

concerns. These all contribute to a 

conservation ethic, undoubtedly benefit 

the Cook Inlet region environment, and 

can be beneficial to Cook Inlet beluga 

whales and their habitat. The ESA 

provides that, when considering a 

species for listing as a threatened or 

endangered species, consideration be 

given to efforts by any State, or any 

political subdivision of a state, to 

protect such species. Generally, a 

species that would otherwise qualify for 

listing may be excluded from listing if 

there are formalized conservation efforts 

that are sufficiently certain to be 

implemented and effective so as to have 

contributed to the elimination or 

adequate reduction of one or more 

threats to the species identified through 

a threats analysis conducted pursuant to 

section 4(a)(1) of the ESA. However, no 

such provision exists for the designation 

of critical habitat. If such provisions 

existed, it would still be difficult to 

demonstrate they were effective in 

providing for the conservation of the 

Cook Inlet beluga whales, as many of 

these efforts were in place during the 

periods in which these whales 

experienced significant declines, 

leading to the 2008 listing. 

The ESA allows for critical habitat not 

to be designated if such designation 

would not benefit the species. Congress 

intended, however, that in most 

situations NMFS will designate critical 

habitat at the same time that a species 

is listed as either endangered or 

threatened. It is only in rare 

circumstances where the specification 

of critical habitat concurrently with the 

listing would not be beneficial to the 

species. See H.R. Rep. No. 95–1625 at 17 

(1978), reprinted in 1978 U.S.C.C.A.N. 

9453, 9467. In this instance, we have 

determined that the designation of 

critical habitat for the Cook Inlet beluga 

whale would be beneficial to the species 

by providing specific protections against 

Federal actions that would otherwise 

destroy or adversely modify that habitat. 

We also identify other benefits, as 

discussed in the following comment. 

Comment 31: Contrary to statements 

in the Proposed Rule, section 7 

consultations are not a benefit accruing 

from the action, but will only add 

additional layers of administrative 

process without additional effective 

protections for beluga whales or their 

habitat. 

Response: As our analysis of 

economic impacts from the proposed 

designation indicates, many, if not most, 

of the future consultations on Federal 

actions pursuant to section 7 of the ESA 

would otherwise be required because of 

section 7’s requirement that Federal 

agencies not take actions that jeopardize 

the continued existence of the species 

(the jeopardy standard). However, the 

characterization of this designation as 

an additional layer of process ignores 

the tangible benefits that will accrue 

from it. 

The designation of critical habitat and 

identification of essential physical and 

biological features will provide 

procedural and substantive protections, 

thereby promoting the conservation of 

the Cook Inlet beluga whale. 

Procedurally, the designation of critical 

habitat will focus future consultations 

on key habitat attributes and avoid 

unnecessary attention to other, nonessential habitat features. Designation of 

critical habitat will also provide clarity 

to the process by alerting Federal 

agencies to the specific areas and 

features that should be considered and 

addressed during these consultations. 

The designation also educates the 

public as well as State and local 


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governments, and affords them the 

opportunity to participate in the 

designation. Substantively, the 

designation of critical habitat for the 

Cook Inlet beluga whale establishes a 

uniform protection plan prior to 

consultation. In the absence of such 

designation, the determination of the 

importance of the whale’s environment 

would be made piecemeal. 

Comment 32: Education and outreach 

are not justifiable benefits accruing from 

the proposed designation. In fact, there 

is concern that this designation will 

result in a backlash that will undermine 

conservation efforts generally. NMFS 

should provide the references for 

statements regarding the benefits of 

critical habitat designation as described 

in the proposed rule, otherwise the list 

is speculative and should be removed 

from the final rule. 

Response: Education and outreach are 

qualitative benefits of designation. It is 

almost certain, however, that the 

process to date has greatly added to the 

knowledge of Cook Inlet beluga whales 

and their critical habitat needs within 

Southcentral Alaska, and probably 

extending to much larger geographical 

and societal divisions. We do not 

believe such education and awareness 

has been or will be destructive or 

undermine conservation efforts. 

Moreover, courts have recognized the 

education and outreach benefits 

accruing from the designation of critical 

habitat. See, e.g., Conservation Council 

for Hawaii v. Babbitt, 2 F.Supp.2d 1280 

(D. Haw. 1998). 

Comment 33: One commenter 

strongly objects to the stated benefit of 

reduced levels of pollution in Cook 

Inlet, with associated benefits accruing 

to a suite of ecological services, 

culminating in an improved quality of 

life (in the Cook Inlet region). This 

statement mischaracterizes Cook Inlet, 

whose waters offer pristine habitat for 

beluga whales. 

Response: We agree that water quality 

within Cook Inlet is generally high, and 

that approximately 98 per cent of the 

shoreline remains undeveloped. 

However, any characterization of these 

waters as pristine might be tempered by 

the facts that the largest communities in 

the State exist along its shore, municipal 

wastes and other effluents from these 

communities are often discharged into 

the receiving waters of Cook Inlet, 

numerous fish plants discharge 

processing wastes into the Inlet, minor 

and major fuel spills have occurred 

here, and offshore oil platforms 

regularly discharge drilling muds, 

cuttings, and produced waters into the 

Inlet. We believe it is reasonable to 

project improvements in pollution as a 

benefit of critical habitat designation 

even though a portion of such benefits 

may be realized in the future. 

Comment 34: NMFS should adopt 

minimum escapement goals for 

eulachon and salmon. A minimum 

density of prey is relevant to the intent 

of designating critical habitat. 

Response: While the importance of 

these prey species to Cook Inlet belugas 

is supported by stomach analysis of 

stranded and harvested whales, TEK, 

fatty acids, and stable isotope analysis, 

we do not believe sufficient information 

exists to determine the energetic 

requirements of Cook Inlet belugas or to 

adopt escapement levels, and any 

attempt to do so would be speculative. 

We anticipate future research will add 

to our knowledge of the energetic 

requirements of these whales and allow 

some insight into prey selectivity, 

caloric requirements, feeding behavior 

and speciation, and run strength within 

tributary waters that may support a 

determination of prey requirements. At 

this time we have no information to 

suggest prey availability is or has been 

a factor in the decline or is in need of 

improvement to promote the recovery of 

the Cook Inlet beluga whale. We hope 

to continue to work with the State of 

Alaska to ensure these whales are 

considered in fish management 

planning for Cook Inlet. 

Comment 35: NMFS should delete the 

term ‘‘absence of toxins and other 

agents’’ in its PCE concerning toxins, 

which implies that a pristine 

environment is essential to the 

conservation of these whales. NMFS 

should continue to rely on State and 

Federal water quality standards until 

specific agents are identified to be 

detrimental to beluga whales. 

Response: We qualify these terms in 

the definition of the PCE with the clause 

‘‘of a type or amount harmful to beluga 

whales,’’ which we believe avoids 

creating the implication described by 

the commenter. The commenter 

correctly points out that the current 

exposure of these whales to various 

pollutants and tissue analysis have not 

indicated that Cook Inlet beluga whales 

carry significant body burdens of many 

common contaminants and toxins. But 

beluga whales are top level predators 

with potential to bio-accumulate toxic 

substances. Further, the juxtaposition of 

high densities of Cook Inlet belugas and 

Alaska’s most populated and 

industrialized region raises a concern 

for the introduction of pollutants into 

the Inlet. We believe a PCE that 

addresses the essential feature of water 

quality is appropriate here, and the 

qualification we added to it will avoid 

unnecessary restrictions on most 

approved discharges. Existing water 

quality standards may or may not be 

protective of marine mammals, 

including small whales. Also, many 

pollutants with the potential to harm 

these animals are not currently 

regulated or addressed under these 

standards. 

Comment 36: The PCE for toxins 

should reflect concern for the type and 

amount of a constituent, rather than for 

a type or amount. One commenter 

suggests re-wording this PCE as ‘‘The 

absence of non-naturally-occurring 

toxins or other agents of a type and 

amount that would kill or injure Cook 

Inlet beluga whales or cause prolonged 

abandonment of their critical habitat 

areas,’’ providing the rationale that these 

changes would clarify that Federal 

agencies are not required to eliminate 

naturally-occurring harmful substances 

and replace the vague standard of harm 

with the effects-based language from 

PCE number 5 (in-water noise). 

Response: While many compounds 

and agents may be of a type harmful to 

animals, the actual threat or significance 

of any exposure is also dependent on 

their concentrations. We agree with the 

comment and have changed the wording 

of the final rule to reflect this. We 

disagree with the suggested changes to 

the remainder of this PCE because these 

qualities or thresholds are more 

appropriate in defining the condition of 

this PCE that equates to adverse 

modification of the critical habitat. That 

is, while the PCE is generally defined as 

waters free of harmful substances, 

adverse modification will occur when 

an action results in the addition of 

substances of a type and amount that 

causes mortality or other consequences 

impeding the conservation of the whale. 

Also, some substances occur naturally 

in the environment (e.g., mercury), but 

are also a concern regarding 

anthropogenic introduction into Cook 

Inlet. Therefore, we chose not to 

exclude naturally occurring toxins or 

other agents, as suggested. 

Comment 37: The PCE for in-water 

noise should be changed to read ‘‘The 

absence of in-water noise that results in 

adverse impacts to the species survival 

and recovery’’ because many noise 

impacts may adversely affect the species 

but not result in abandonment of 

habitat. 

Response: The commenter’s proposed 

language attempts to set the threshold 

for this essential feature or PCE at a 

level defining adverse modification or 

destruction of the critical habitat. We 

disagree with this approach. A PCE 

describes an essential feature, such as 

water within a certain temperature 

range. During a section 7 consultation, 


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we would consider the effects of an 

action with regard to this PCE and 

evaluate if those changes would 

appreciably reduce the conservation 

value for the species. Defining the PCE 

to equate to adverse modification would 

be circular and by-pass this analytical 

approach. Moreover, the definition 

espoused by the commenter conflates 

the standards for jeopardy and adverse 

modification, a formulation the Ninth 

Circuit struck down in Gifford Pinchot 

Task Force v. U.S. Fish & Wildlife Serv., 

378 F.3d 1059 (9th Cir. 2004). We have 

modified the description of this PCE in 

the final rule to improve clarity. 

Comment 38: The PCE for in-water 

noise should be removed. This finding 

is inconsistent with that made in the 

final rule to designate critical habitat for 

the southern resident killer whale (71 

FR 69054; November 29, 2006) which 

found that noise is an effect to the 

animal and not to its habitat. 

Response: In our final rule to 

designate critical habitat for the 

southern resident killer whale, we 

lacked sufficient information to include 

noise as a PCE, but noted that we would 

continue to consider sound in any 

future revisions of that critical habitat 

(71 FR 69054; November 29, 2006). We 

consider in-water noise to be both an 

effect on these endangered whales and 

a habitat attribute. It is clear that noise 

has the potential to alter behavior in 

whales in a manner that may have 

biological significance (i.e., to result in 

a ‘‘take’’ by harassment or injury). We 

find that noise (or its absence) is also an 

important characteristic of the habitat 

within which these whales exist, and is 

appropriately identified here as an 

essential feature. We also agree with our 

previous rule for the southern resident 

killer whale that current scientific 

information is not sufficient to quantify 

the noise levels that may alter habitat to 

the extent that whales would abandon 

such areas. However, neither the ESA 

nor regulations require quantifiable 

thresholds to be known before any 

habitat attribute may be considered an 

essential feature. Rather, the ESA 

requires that we designate critical 

habitat based on the best scientific data 

available, which we have done. Indeed, 

the regulations (50 CFR 424.12) describe 

essential physical and biological 

features to include generically ‘‘Food, 

water, air, light, minerals’’ without 

further quantification. 

Comment 39: The proposed ‘‘noise’’ 

PCE does not define or explain what 

constitutes ‘‘abandonment of habitat’’ 

and ‘‘continuous noise.’’ 

Response: We use these terms with 

their ordinary meaning in mind and 

offer no specialized descriptions for 

these terms. Our intent is to avoid 

having the mere presence of noise, or 

even noise which might cause 

harassment, be deemed adverse 

modification. While we do not believe 

it is ‘‘essential’’ that the acoustic 

environment of these whales be free of 

noise, even noise at levels which might 

harass whales, we consider it essential 

for the whales’ conservation that they 

are not presented with noise that may 

preclude their use of key habitat areas, 

particularly those that are important for 

feeding, breeding, or calving. 

Continuous or non-impulsive noise is 

differentiated from impulsive noises, 

which are typically transient, brief, 

broadband, and consist of a rapid rise 

time. Impulsive noises may be a single 

event or repetitive. Examples of 

impulsive noises are explosions, sonic 

booms, seismic airgun arrays, and 

impact pile driving. Non-impulsive 

sources include vessels, aircraft, and 

vibratory pile driving. 

Comments for Exclusions 

We received many comments 

requesting exclusion from critical 

habitat. These requests concerned 

excluding navigation corridors, portions 

of the west and east sides of Cook Inlet, 

the site of the Knik Arm bridge, the 

POA, Port Mackenzie, commercial 

fishing areas, the City of Kenai, 

Kachemak Bay, and State legislativelycreated sites (see below). We prepared 

an analysis to assess, among other 

things, the economic impacts 

attributable to the designation of critical 

habitat for the Cook Inlet beluga whale. 

We have determined that, based upon 

economic impact considerations, there 

are no proposed critical habitat areas or 

sites for which the benefits from 

excluding the area or site outweigh the 

benefits from designating that area or 

site. As a result, we have not proposed 

to exclude any sites on economic 

grounds. We have not provided a 

specific response to each individual 

request that was received and 

considered here, but we have included 

responses to all significant issues raised 

in the comments. We also considered 

requests for exclusion based on national 

security and other relevant impacts, and 

as discussed below, we are excluding a 

small area connected with the POA from 

the designation. In light of the impacts 

to national security, we determined that 

the benefits of excluding that small area 

outweigh the benefits of including it. 

Comment 40: Critical habitat should 

be reduced to areas where the beluga 

whales are most concentrated and 

should not include areas of historical 

use. 

Response: Generally, critical habitat 

includes those areas necessary to 

conserve the beluga whale, which 

broadly means those areas that will 

promote its recovery. To determine the 

boundaries of critical habitat, we 

identified the specific areas within the 

geographical area occupied by the whale 

at the time it was listed on which are 

found those physical or biological 

features essential to the conservation of 

the whale and which may require 

special management considerations or 

protection. This process resulted in a 

proposed designation and, through the 

notice-and-comment procedure, we 

refined the critical habitat designation. 

Our analysis indicates that the inclusion 

of areas only where the whales are most 

concentrated would be too narrow. The 

critical habitat designation does not 

include areas outside the geographical 

area occupied by the species as of 2008 

because we do not believe that any such 

area is essential for the whale’s 

conservation. 

Comment 41: The POA should be 

excluded from designation in 

recognition of it being one of nineteen 

National Strategic Ports whose functions 

include the mobilization and 

embarkation of military vessels for 

quick deployment around the world. 

Response: We have considered this 

request and find that, in light of the 

impacts to national security, the benefits 

of exclusion outweigh the benefits of 

designating the POA and a small area 

adjacent to it as critical habitat. The 

POA supports certain military functions 

and requirements which cannot be met 

elsewhere in the State. While air 

shipment of goods and materials present 

some alternatives as far as supply lines 

to military interests in Alaska, many 

other demands cannot be met without 

the support of large supply ships calling 

at this port facility. The POA also serves 

as the conduit for all of the jet JP–8 fuel 

now used at Elmendorf Air Force Base. 

We believe that the POA’s function in 

military readiness and role as a National 

Strategic Port could be negatively 

affected by designation it and 

surrounding waters as critical habitat. 

Therefore, in keeping with the 

provisions of the ESA, the POA and 

waters of Knik Arm in front of the Port 

(i.e., the navigation channels and 

turning basin) are not designated as 

critical habitat. We have determined 

this exclusion will not result in the 

whale’s extinction. 

Comment 42: Any exclusion of the 

POA for reasons of national security 

should be strictly limited to military 

activities, and not extend to nonmilitary activities. 


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Response: Section 4(b)(2) of the ESA 

provides that the Secretary of Commerce 

may exclude ‘‘any area’’ from 

designation as critical habitat for 

reasons of national security. We did not 

find any authority to limit these 

exclusions to a particular activity or 

entity. Also, certain non-military 

functions which support the operational 

readiness of the port, such as 

maintenance dredging, could impact 

military operations if they were delayed 

or otherwise impacted by designation. 

Comment 43: Port MacKenzie is 

significant to national security in 

providing the ability to efficiently 

transfer military units, munitions, and 

general cargo between land and marine 

modes, and should be excluded from 

designation. 

Response: Port MacKenzie is not 

currently identified as a strategic port, 

nor is it adjacent to military lands, 

accessed by a major road system, 

utilized for munitions transfers, or 

serviced by rail. We received no 

supporting recommendations for this 

exemption from the Department of 

Defense (DOD), and did not find 

reasonable evidence of the need to 

exclude Port MacKenzie based on 

national security interests. 

Comment 44: The Department of 

Defense (DOD) reminds us that Congress 

has mandated that Fort Richardson and 

Elmendorf Air Force Base be combined 

into a single facility by October 2010, 

and that the proposed landward 

boundary of critical habitat (Mean 

Higher High Water) would overlay the 

seaward military boundaries for these 

lands, which have been established as 

Mean High Water. They request 

clarification on this boundary issue. 

Response: Because the areas between 

mean higher high water (MHHW) and 

mean high water (MHW) are 

predominately unvegetated mudflats, 

and because all lands of Fort Richardson 

and Elmendorf AFB (now combined, 

Joint Base Elmendorf-Richardson) are 

administered under an Integrated 

Natural Resources Management Plan 

(INRMP) which we found to provide 

benefit to Cook Inlet beluga whales, 

these areas are ineligible for designation 

as critical habitat. Modifications have 

been made within the final rule to 

reflect this change. 

Comment 45: The commercial and 

subsistence fisheries for the Native 

Village of Tyonek (NVT) should be 

excluded from critical habitat 

designation. 

Response: We believe the commenter 

is requesting exclusion of those waters 

which support commercial and 

subsistence fisheries in and surrounding 

the Chuitna River, near the NVT under 

section 4(b)(2) of the ESA. We have 

considered economic impacts, impacts 

to national security, and other relevant 

impacts, including impacts to tribal 

interests. We conclude that the benefits 

of excluding any particular area do not 

outweigh the benefits of specifying such 

area as critical habitat, except for a 

small area associated with the POA 

which we excluded in light of impacts 

to national security. We emphasize that 

where no Federal authorization, permit, 

or funding is required (i.e., no Federal 

action exists), the activity is not subject 

to section 7 of the ESA. Therefore, there 

would be no section 7 consultations 

costs associated with that activity. 

Further, we do not believe impacts to 

tribal interests indicate that the benefits 

of excluding the areas that cover the 

NVT subsistence and commercial 

fisheries outweigh the benefits of 

specifying these areas as critical habitat. 

We have not received comments that 

indicate tribal interests would be 

harmed by this action. 

Comment 46: The State of Alaska 

requests exclusion under section 4(b)(2) 

of the ESA for all legislativelydesignated areas, such as refuges, 

sanctuaries, and critical habitat areas. 

Response: We have considered this 

request. The Secretary of Commerce 

may use his discretion to exclude areas 

from critical habitat if the Secretary 

determines the benefits of such 

exclusion outweigh the benefits of 

designation of the area, provided the 

exclusion would not result in the 

extinction of the species. The areas in 

question include the Goose Bay and 

Anchorage Coastal Refuges, and the 

Redoubt Bay, Kalgin Island, and 

Kachemak Bay State Critical Habitat 

Areas. As stated in an earlier response 

to comment, we recognize the 

contribution of such sites to the 

conservation of the Cook Inlet region, 

and the direct and indirect benefits they 

provide to Cook Inlet beluga whales and 

their habitat. In this case, the State is 

arguing the benefits we place on 

including in the designation these 

legislatively-designated areas be 

reduced by their existing benefit/value 

owing to their function in conserving 

these whales. All of these areas include 

important ecological and environmental 

attributes, especially for fish and 

wildlife. Also, several of these sites 

include important beluga whale habitats 

and may have large numbers of beluga 

whales within their boundaries at 

various times of the year. Despite the 

ecological values of these areas and the 

presence of beluga whales and their 

habitat, we know of no such State area 

whose purpose specifically includes the 

conservation of beluga whales or their 

habitat. Moreover, neither the Cook Inlet 

beluga whale nor its habitat is included 

on the State of Alaska’s endangered 

species list. We believe that the benefits 

from designation, described in this final 

rule, will accrue to the conservation of 

the Cook Inlet beluga whale, even in 

those areas currently protected for other 

purposes by the State of Alaska, such as 

refuges and sanctuaries. 

We also considered the economic 

impacts associated with the designation 

as critical habitat of the State 

legislatively-designated areas. Our 

economic analysis indicates that the 

majority of those impacts are associated 

with the requirement to consult on 

Federal actions under section 7 of the 

ESA. Often times, however, such costs 

are minimal, because the consultation 

would already be required because the 

proposed Federal action has the 

potential to affect beluga whales. Any 

Federal action that ‘‘may affect’’ an 

endangered or threatened species 

requires consultation, regardless of the 

existence of critical habitat. Because 

land use and management plans exist 

for these sites, and many of these areas 

are remote, there are fewer Federal 

actions occurring or proposed here than 

may be expected outside of these 

refuges, sanctuaries, and critical habitat 

areas. We, therefore, do not expect the 

demand for Federal actions in these 

sites to increase markedly in the future. 

Additionally, any costs that may be 

attributable to critical habitat 

designation would be unlikely to be 

borne by the State of Alaska, but rather 

by the Federal action agency or any 

private entity proposing work here that 

requires Federal authorization, permits, 

or funding. Also, any ‘‘costs’’ such as 

increased consultation on actions that 

may impair the function of habitat 

(critical habitat for beluga whales) in 

these areas may be viewed as a benefit, 

rather than a cost, in that it may add to 

the values for which these areas were 

established. 

Therefore, after considering the 

economic impacts and other relevant 

impacts described above, we have 

determined that the benefits of 

designation of critical habitat outweigh 

the benefits of excluding those areas 

currently designated by the State of 

Alaska as refuges, sanctuaries, and 

critical habitat areas from this 

designation. 

Comment 47: NMFS can exclude 

areas to preserve partnerships and 

existing protections if the designation 

risks losing important protection for 

beluga whales. 

Response: The ESA requires that the 

designation process take into 

consideration the economic impact ‘‘and 


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any other relevant impact’’ of specifying 

an area as critical habitat, but neither 

the ESA nor the implementing 

regulations provide clarity on the 

provisions for the Secretary of 

Commerce to exclude from designation 

any areas for which the benefits of 

exclusion outweigh the benefits from 

designation. We are not entirely clear as 

to what is meant by the comment’s 

reference to critical habitat designation 

posing risks to existing protective 

measures. Nonetheless, we believe that 

the designation will result in an 

increase in protection or conservation 

measures. 

Comment 48: Electric energy for the 

Anchorage area is supplied by undersea 

cables from a generating plant near 

Beluga, Alaska. The cable field and 

overlying waters should be excluded 

from critical habitat as any delays in 

maintenance or repairs would present 

significant economic costs and threat to 

the reliability of the region’s electrical 

system. The possible requirement to 

stop water operations if a whale is 

sighted closer than 2,000 feet would 

have very negative impacts on cable 

laying. Similarly, barge operations in 

support of power generation could be 

negatively impacted by this designation, 

and these barge landing areas should 

also be excluded. 

Response: After preparing an 

economic impact analysis and 

considering those economic impacts 

and the ones raised in public comments 

on the proposed rule, we have 

determined that the benefits of 

exclusion do not outweigh the benefits 

of including any particular area. The 

economic analysis assesses power 

generation projects and general 

commercial activities in the upper Inlet. 

Thus, we believe the findings in the 

economic analysis are applicable to this 

comment. Whenever practicable, the 

analysis sought to identify the 

incremental costs unique to critical 

habitat designation. The analysis found 

that the impacts from a designation 

decision will often be co-extensive with 

the ones from the listing decision. That 

is, in many instances, costs arising from 

the need to consult because of the 

potential to destroy or adversely modify 

critical habitat will be co-extensive with 

the costs arising from the need to 

consult because of the potential to 

jeopardize the species. 

In the specific example the 

commenter provides (stopping 

operations when a whale was near the 

work boat), consultation costs would be 

entirely attributable to ESA jeopardy 

considerations stemming from the 

listing, not critical habitat designation, 

because the hypothetical scenario 

involves the direct interaction between 

a whale and the work activity 

referenced (i.e., a potential ‘‘take’’). This 

interaction is, in no way, influenced by 

the designation of critical habitat. In 

other instances, for example, actively 

laying submarine cable in Cook Inlet, 

the incremental cost of evaluating the 

potential of a proposed action to 

‘‘destroy or adversely modify’’ critical 

habitat during a consultation would be 

largely indistinguishable from the costs 

attributable to evaluating that activity’s 

potential to jeopardize the species. 

Moreover, the commenter provided 

no specific information indicating that 

this work would even require Federal 

authorization, permits, or funding (i.e., 

Federal action). Absent a Federal action, 

the critical habitat designation would 

not impose section 7 consultation 

obligations on the commenter’s 

hypothetical activity. We are aware of 

no Federal permit requirements to 

maintain or repair submarine cable, or 

to operate a barge. Based upon the 

information provided, we did not find a 

compelling reason to exclude these 

areas from critical habitat. 

Comment 49: NMFS has not 

presented sufficient information to 

justify the inclusion of the lower Inlet 

areas as critical habitat. Hobbs et al. 

(2005) is cited as describing dive 

behavior in winter, yet no such data are 

reported in that paper. Winter behavior 

and habitat use may differ from that of 

summer months, and NMFS habitat 

models are primarily based on 

observations during June. 

Response: The Proposed Rule 

incorrectly referenced Hobbs et al. in 

describing dive behavior; that paper did 

not include analysis of dive patterns. 

That work did, however, establish the 

distribution of tagged beluga whales 

during winter months as including 

offshore waters of the mid Inlet which 

are consistently deeper than those areas 

typically occupied by whales during the 

summer. At this time, we do not have 

a complete understanding of the specific 

attributes that support winter beluga 

habitat within Cook Inlet. Because we 

are required to consider the best 

scientific data available in designating 

critical habitat, we reviewed nonsystematic sighting reports from State 

and private sources, aerial surveys of 

winter beluga distribution, and TEK in 

assessing the value of the lower Inlet as 

critical habitat. Also, we believe the use 

of the southwest Inlet during late 

summer and fall may be an extension of 

the feeding behavior (and distribution) 

which occurs in the upper Inlet as 

whales move south to take advantage of 

late spawning returns of coho salmon. 

This habitat use and behavior would 

support the use of the results in Goetz 

et al. (2007) as descriptive of habitat 

values in the southwest Inlet. While 

there is some evidence that beluga 

whales may be overwintering in an 

offshore area south of Kalgin Island, 

these areas were not included as critical 

habitat because we felt information was 

not adequate to describe this use or 

identify any essential features. 

Comments for Inclusion 

We received many comments 

recommending additional areas be 

included in the critical habitat 

designation. These include all of Cook 

Inlet, corridors connecting habitat areas, 

upper and lower Cook Inlet, 

historically-used areas, Iniskin Bay, the 

mouths of tributary streams entering the 

Inlet, the Eagle River Flats firing range, 

the POA, and Hudson Bay near 

Churchill, Canada. We have considered 

all such comments and respond below 

to the significant issues they raise. 

Comment 50: The critical habitat 

should include important feeding areas 

at the mouths of the Matanuska River, 

Knik River, and Cottonwood Creek. 

Response: The described boundaries 

for this critical habitat generally include 

areas such as these. While there is often 

a poorly-defined division between Cook 

Inlet and a tributary stream or river, our 

proposed river boundaries would 

extend critical habitat into the lower 

reaches of many streams. Tidal 

influence may extend a considerable 

distance up these tributary waters, but 

represents areas in which we have very 

few observations or reports of belugas. 

We identified several waters where 

beluga whales are known or suspected 

to utilize such up-river areas for feeding, 

and specifically extend critical habitat 

into these reaches. 

Comment 51: Critical habitat must 

include the habitat of prey species of 

beluga whales, such as the Susitna River 

system and other waters above tidal 

influence. 

Response: The ESA requires that 

critical habitat be located within the 

geographic area occupied by a species, 

or within specific areas outside of 

occupied habitat determined to be 

essential to the conservation of the 

species. The areas described are outside 

the geographic areas occupied by the 

species at the time of its listing, and in 

light of the areas we are designating and 

the best scientific data available, we 

have determined that the unoccupied 

areas are not essential to the whale’s 

conservation. We agree that habitat for 

prey species such as salmon and 

eulachon is a necessary component to 

their existence in the wild, but we do 

not have adequate scientific information 


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to identify specific areas that would be 

essential to the conservation of these 

beluga whales with respect to habitat 

values of prey species. 

Comment 52: Critical habitat 

boundaries should be extended to 

incorporate all of the described range of 

these whales. Both the nearshore and 

offshore areas of lower Cook Inlet 

should be designated as critical habitat. 

Response: We carefully considered 

designation of these areas as critical 

habitat, but we did not find sufficient 

justification to do so. These areas have 

been used by beluga whales in the past, 

during periods in which their 

abundance was much higher than today, 

and beluga whales are still observed in 

these areas. However, both the current 

and historical accounts of beluga whales 

in these areas do not indicate they 

supported important numbers/ 

concentrations of whales, or that they 

served important habitat functions. 

Existing habitat models describe open 

water values that are likely very 

important attributes to feeding and, 

perhaps, calving habitat needs and 

preference. Such modeling does not 

indicate high habitat values are present 

in the areas in the lower Inlet that are 

not included in the designation. We 

acknowledge more information is 

needed to understand the winter habitat 

needs of the Cook Inlet belugas, and that 

other areas may be found to be 

important as new data arrive. But 

presently, we do not find sufficient 

support for inclusion of these areas. 

Comments To Extend Public Comment 

Comment 53: NMFS received several 

comments and requests to extend or reopen the comment period for this 

action, or to conduct additional hearings 

in the State. 

Response: On consideration, we 

believe the public process, which has 

included the publication of an Advance 

Notice of Proposed Rulemaking with a 

30-day public comment period (74 FR 

17131; April 14, 2009), publication of a 

proposed rule with 60-day public 

comment period (74 FR 63080; 

December 2, 2009), a 30-day extension 

of the comment period for the proposed 

rule, and four public hearings held in 

the major population centers in the 

Cook Inlet region (Kenai, Soldotna, 

Wasilla, and Anchorage), was sufficient 

and proper. Therefore, we have 

determined not to extend or re-open the 

comment period, or to hold additional 

hearings for this final rulemaking. 

Comments on the Need To Designate 

Critical Habitat 

Comment 54: Designation of critical 

habitat was unnecessary, and will not 

add any meaningful protection to these 

whales. The regulations at 50 CFR 

424.12 provide that critical habitat may 

not be prudent, and therefore would not 

be designated, when that designation 

would not be beneficial to the species. 

The consultation provisions of the ESA 

provide reasonable protection to these 

whales under the jeopardy standard. 

NMFS has used circular logic in saying 

the benefit of designating critical habitat 

is that it will require (Federal agencies) 

to ensure their actions do not destroy or 

adversely modify critical habitat. The 

remaining functional benefit of public 

education and outreach would be more 

effectively met through a dedicated 

public education program rather than 

the less direct means of designating 

critical habitat. 

Response: We disagree. The ESA 

provides that critical habitat shall be 

designated ‘‘to the maximum extent 

prudent and determinable.’’ 16 U.S.C. 

1533(a)(3)(A). The ESA does not define 

‘‘prudent.’’ NMFS/USFWS regulations, 

however, provide that a designation of 

critical habitat is not prudent when the 

‘‘designation of critical habitat would 

not be beneficial to the species.’’ 50 CFR 

424.12(a)(1)(ii). This means that in the 

rare situation where there is zero benefit 

from designation, we need not 

designate. If there is any benefit, we 

must designate. Congress intended that 

in most situations the Secretary will 

designate critical habitat at the same 

time that a species is listed as either 

endangered or threatened. It is only in 

rare circumstances where the 

specification of critical habitat 

concurrently with the listing would not 

be beneficial to the species. See 

H.R.Rep. No. 95–1625 at 17 (1978), 

reprinted in 1978 U.S.C.C.A.N. 9453, 

9467. See also Enos v. Marsh, 769 F.2d 

1363, 1371 (9th Cir.1985) (holding that 

the Secretary ‘‘may only fail to designate 

a critical habitat under rare 

circumstances’’); Northern Spotted Owl 

v. Lujan, 758 F.Supp. 621, 626 

(W.D.Wash.1991) (‘‘This legislative 

history leaves little room for doubt 

regarding the intent of Congress: The 

designation of critical habitat is to 

coincide with the final listing decision 

absent extraordinary circumstances.’’). 

In short, if there will be any benefit 

from the designation, we must 

designate. Even if many consultations 

will occur because of the combined 

potentialities that proposed Federal 

actions will adversely modify critical 

habitat and jeopardize the species, if 

some will occur only because of the 

potential for adverse modification, there 

still is benefit to the species (see 

response to comment 54). Further, 

courts have recognized benefits beyond 

the need to consult. See Conservation 

Council for Haw. v. Babbitt, 2 F.Supp.2d 

1280, 1288 (D. Haw. 1998) 

(substantively, the designation 

establishes a uniform protection plan 

prior to consultation, and procedurally, 

the designation educates the public as 

well as state and local governments, and 

affords them the opportunity to 

participate in the designation). We do 

not believe this situation is the rare one 

allowing us to avoid the ESA’s strong 

mandate to designate critical habitat. 

As for the arguments that the Marine 

Mammal Protection Act (MMPA) 

protection is enough, critical habitat 

must be designated regardless of 

whether other laws or provisions 

arguably provide adequate protection. 

See Natural Resources Defense Council 

v. U.S. Dep’t of the Interior, 113 F.3d 

1121, 1127 (9th Cir. 1991) (‘‘Neither the 

Act nor the implementing regulations 

sanctions nondesignation of habitat 

when designation would be merely less 

beneficial to the species than another 

type of protection’’). Lastly, while the 

term ‘‘take’’ includes harm, and USFWS’ 

definition of harm includes habitat 

modification, it applies only when such 

modification ‘‘actually kills or injures’’ 

the species (50 CFR 17.3). Under section 

7 of the ESA, we may find that an action 

will adversely modify critical habitat 

and propose reasonable and prudent 

alternatives without having to also make 

the higher evidentiary determination 

that the adverse modification will kill or 

directly injure the species. 

Legal and Regulatory Comments 

Comment 55: Existing State and 

Federal regulation and associated 

mitigation measures are adequate to 

protect Cook Inlet beluga whales and 

the critical habitat designation is not 

necessary. One commenter also asserts 

that NMFS has disregarded the 

information it submitted concerning 

existing laws and regulations that 

protect Cook Inlet beluga whales and 

their habitat. One commenter also 

asserts that there is no evidence that a 

lack of effectiveness of any of the 

management regimes in place in Cook 

Inlet or that any management or 

regulatory gap contributed to the 

endangered listing of Cook Inlet beluga 

whales or limits its recovery. 

Response: The ESA defines critical 

habitat, in part, as ‘‘the specific areas 

* * * on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection.’’ 16 U.S.C. 1532(5)(A)(i). The 

phrase ‘‘may require’’ indicates that 

critical habitat includes features that 


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may now, or at some point in the future, 

be in need of special management 

considerations or protection. 

As explained in the proposed rule, we 

determined that each PCE may require 

special management considerations or 

protection. The commenter is correct 

that certain laws and regulatory regimes 

already protect, to different degrees and 

for various purposes, the waters of Cook 

Inlet and, therefore, to a certain extent, 

the physical or biological features 

identified as essential to the 

conservation of the species. The fact 

that there are relevant state and Federal 

regulations which aim to protect these 

waters and features from a variety of 

sources and actions indicates that each 

feature currently is in need of special 

management considerations or 

protection. The existing laws and 

regulations do not, however, ensure that 

current and proposed actions will not 

adversely modify or destroy beluga 

whale critical habitat in Cook Inlet. It is 

therefore probable, if not likely, that the 

PCEs essential to the conservation of the 

Cook Inlet beluga whale will require 

special management considerations or 

protection in the future. The 

consultation process is one mechanism 

through which we can ensure that those 

features are afforded such consideration 

or protection. 

With regard to the comment that we 

disregarded information submitted on 

existing laws and regulations, we 

disagree with the commenter because 

we have considered this information in 

the proposed rule and in this final rule. 

Finally, with regard to the comment 

about whether the lack of effectiveness 

of any of the current management 

regimes contributed to the endangered 

listing, the designation of critical habitat 

for any listed species does not 

necessarily indicate that existing laws 

are responsible for the species’ decline. 

Similarly, the fact that there are existing 

laws that protect different aspects of a 

listed species’ critical habitat does not, 

per se, preclude the designation of 

critical habitat. The inquiry is whether 

there are physical or biological features 

that are essential to the conservation of 

the species and which may require 

special management considerations or 

protection. Congress envisioned that, 

except in extraordinary circumstances, 

the Secretary would designate critical 

habitat. There are no extraordinary 

circumstances that would allow us to 

avoid the designation of critical habitat 

for the Cook Inlet beluga whale. 

Comment 56: The critical habitat 

designation should not be finalized 

until pending legal rulings on the status 

of the Cook Inlet beluga whales are 

made. 

Response: We disagree. The ESA 

requires us to designate critical habitat 

concurrently with the listing decision to 

the maximum extent prudent and 

determinable (16 U.S.C. 

1533(a)(3)(A)(i)). If such designation is 

not determinable, we may extend the 

deadline by one year. In the 

extraordinary situation where the 

designation of critical habitat is not 

prudent, we may decide not to do so. 

See response to comment 54 above. 

Section 424.12(a)(1) of 50 CFR presents 

two circumstances when a designation 

is not prudent, but neither one is 

applicable here. Accordingly, whichever 

‘‘pending legal rulings on the status of 

Cook Inlet beluga whales’’ the 

commenter is referring to, they do not 

constitute cognizable grounds under the 

ESA for delaying the designation of 

critical habitat. If the State of Alaska 

prevails in its lawsuit challenging our 

decision to list the Cook Inlet beluga 

whale, we will determine at that time 

what effect such a ruling has on this 

final rule. 

Comment 57: Because NMFS has not 

yet complied with all of the applicable 

directives, such as the National 

Environmental Policy Act, Executive 

Order 13211, and Public Law 108–199, 

the proposed rule is unlawful. 

Response: We disagree. We have 

complied with Executive Orders 13211 

and 13175, as modified by Public Law 

108–199 (74 FR 63,080, 63,093–94; Dec. 

2, 2009). NEPA does not apply to 

decisions to designate critical habitat. 

See Douglas County v. Babbitt, 48 F.3d 

1495, 1501–08 (9th Cir. 1995). 

Comment 58: NMFS must provide 

justification for the designation of 

critical habitat inconsistent with 

comments provided to it by the State of 

Alaska and its political sub-divisions. 

Response: Section 4(i) of the ESA 

provides that if the Secretary issues a 

final regulation which is in conflict with 

the comments of a State agency, the 

Secretary must provide a written 

justification for his failure to adopt 

regulations consistent with the agency’s 

comments. We have complied with this 

section by submitting a letter to the 

Alaska Department of Fish & Game and 

the Governor’s Office. 

Comment 59: There is a direct Federal 

nexus with the critical habitat 

designation through the MagnusonStevens Act to anadromous species. 

These anadromous species include 

hooligan, smelt, and salmon. 

Response: We are uncertain as to what 

this commenter means by ‘‘direct 

Federal nexus with the critical habitat 

designation.’’ To the extent that this 

commenter is referring to potential ESA 

section 7 consultations, we note that 

section 7 of the ESA requires each 

Federal agency, in consultation with 

NMFS, to ensure that ‘‘any action 

authorized, funded, or carried out’’ by 

the agency is not likely to jeopardize the 

continued existence of any listed 

species or result in the destruction or 

adverse modification of the species’ 

habitat (16 U.S.C. 1536(a)(2)). Our 

regulations provide that action ‘‘means 

all activities or programs of any kind 

authorized, funded, or carried out, in 

whole or in part, by Federal agencies in 

the United States or upon the high seas’’ 

(50 CFR 402.02). Accordingly, if or 

when there is a Federal action that may 

affect a listed species or its habitat, the 

Federal action agency must consult with 

NMFS. At this time, we are unaware of 

any proposed Federal actions pertaining 

generally to hooligan, smelt, or salmon 

that would require consultation. 

Economic Comment 

Comment 60: Many comments suggest 

that the Draft RIR/4(b)(2)PA/IRFA did 

not consider changes to development 

projects stemming from the critical 

habitat designation, such as added costs 

and operational and permitting delays 

to projects resulting from the ESA 

section 7 consultation process, and the 

attendant economic consequences. 

Some comments, such as those by 

Chugach Electric Association and 

ConocoPhillips, also estimated the costs 

associated with these modifications and 

delays. According to these comments, in 

addition to the ESA process, project 

delays could also be caused by 

environmental lawsuits, once the 

critical habitat is designated. 

Response: The Cook Inlet beluga 

whale was listed as endangered in 

October 2008. Since the listing, all 

Federal agencies have had the obligation 

to consult with NMFS to ensure that any 

action authorized, funded, or carried out 

by them (i.e., Federal action) is not 

likely to jeopardize the continued 

existence of the species. Consultations 

in accordance with this obligation must 

be conducted in the future, regardless of 

whether critical habitat is designated. 

The statute contains timelines for 

section 7 consultations, and Federal 

agencies should plan their activities 

accordingly to avoid delay. Non-Federal 

entities that require Federal permits for 

development projects should also be 

aware of the consultation requirement, 

and factor the time needed for 

consultations into their plans and 

schedules. As consultations are already 

required under the jeopardy standard, 

the additional consultation standard of 

destruction or adverse modification of 

critical habitat is not anticipated to 

result in significant, additional project 


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delays. With respect to project 

modifications, there presently is no 

detailed empirical information (e.g., 

engineering, materials, and structural 

design; project scheduling, temporal 

sequencing of construction, and 

duration; associated costs and 

financing) pertaining to future projects 

or any project modifications that might 

be proposed for areas within or 

immediately adjacent to Cook Inlet 

beluga whale critical habitat, making 

quantitative estimation of directly 

attributable economic costs purely 

speculative. In other words, since the 

precise nature of any future project 

modification is unknown, we cannot 

speculate whether such a potential 

modification ultimately increases or 

decreases project costs and by how 

much. Qualitatively, based on past 

experience and the best scientific and 

commercial data available, we do not 

expect project modifications to add 

significant monetary costs, especially 

since most of these modifications would 

likely be required pursuant to 

consultations arising under the jeopardy 

standard. 

Finally, whether any project is 

delayed because of a lawsuit will 

depend on whether a court determines 

that NMFS has violated Federal law and 

injunctive relief is appropriate. Costs 

associated with project delays due to 

such lawsuits are extremely speculative. 

Comment 61: A comment by 

ConocoPhillips asserts that a critical 

habitat designation will result in 

increased administrative costs to the 

company, and has the potential to result 

in operational and permitting delays 

and/or lead to other new costs. The 

independent economic analysis 

conducted by the company 

conservatively estimates the impacts to 

ConocoPhillips alone in the range of 

$698,000 to $796,000 over 20 years. 

According to the company, these costs 

could rapidly escalate, if NMFS 

imposed even minor restrictions on 

ConocoPhillips’ operations in 

connection with the critical habitat 

designation. 

Response: See response to comment 

60. 

Comment 62: Some comments request 

the exclusion of the POA and Port 

Mackenzie from the final critical habitat 

designation, based on national security, 

as well as economic reasons. 

Response: After considering impacts 

to national security and weighing the 

benefits of exclusion with those of 

specifying as critical habitat the POA 

and a small, adjacent area extending to 

the turning basin, we have determined 

to exclude those areas from the critical 

habitat designation. The exclusion does 

not, however, include Port Mackenzie. 

We have determined that its inclusion 

as critical habitat does not implicate 

significant impacts to national security, 

supported by the fact that DOD has not 

asserted that there would be any. After 

considering the economic impacts of the 

designation, we determined that the 

benefits of excluding Port Mackenzie do 

not outweigh the benefits of specifying 

the area as critical habitat. The decision 

to exclude the POA is based principally 

on impacts to national security, which 

have been described in this rule and 

were identified in comments responding 

directly to our public notice requesting 

information on this issue. See detailed 

discussion below. 

Comment 63: A number of comments 

assert that, contrary to some 

perspectives in Alaska, the critical 

habitat designation will not hamper 

responsible development. Based on tens 

of thousands of reviews across the 

nation on development projects in areas 

containing endangered species, less 

than one percent of projects are 

significantly curtailed, because 

responsible development and 

endangered species protection can and 

do go hand in hand. The vast majority 

of projects entering the consultation 

process are resolved informally with a 

determination that no listed species will 

be impacted, nor designated critical 

habitat destroyed or adversely modified. 

Even where a formal consultation is 

required in instances of an identified 

potential threat, the agencies more often 

than not conclude that no such threat 

exists, or work with the action agency 

to design project alternatives. Only in 

extremely rare instances are projects 

terminated because of probable impacts 

on listed species. 

The comments further state that 

critical habitat designation does not 

affect private activities that do not 

require Federal permits. Nor is it 

undertaken in a vacuum: Federal 

agencies are already required to consult 

under section 7 of the ESA if their 

action could jeopardize the continued 

existence of an endangered or 

threatened species. Critical habitat 

designation simply adds another 

question for the agency to consider as 

part of the consultation: Whether the 

Federal agency action could result in 

the destruction or adverse modification 

of critical habitat. Any incremental cost 

of critical habitat designation is, 

therefore, small and limited. 

Response: We agree with the 

commenters. The economic analysis 

conducted in support of the Final RIR/ 

4(b)(2)PA/FRFA is based on the same 

premise as that outlined in these 

comments. 

Comment 64: A number of comments 

demand a more robust economic 

analysis before the critical habitat 

designation is finalized. Further, these 

comments expressed concern with the 

methodology used to estimate the cost 

of the proposed designation. According 

to these comments, the current analysis 

is inadequate and a more 

comprehensive economic analysis needs 

to be conducted. 

Response: The economic analysis 

conducted in support of the Final RIR/ 

4(b)(2)PA/FRFA employed the 

appropriate methods and used the best 

scientific data available to consider all 

relevant economic impacts and develop 

cost and benefit estimates. As required 

under the ESA, Regulatory Flexibility 

Act, Executive Order 12866, and other 

applicable law, the analysis considered 

all costs and all benefits relevant to 

assessing the net welfare changes 

attributable to the final action. These 

changes were monetized to the fullest 

extent useful estimates could be made 

or treated qualitatively when 

monetization was not practicable. These 

component welfare effects were then 

integrated in order to reach conclusions 

about the expected ‘‘net benefit to the 

Nation’’ attributable to the final critical 

habitat designation. While the 

commenters demand a more robust 

economic analysis, they do not provide 

any new or additional data. A few 

comments mention certain ‘‘costs’’ that 

are asserted to be incremental to the 

critical habitat designation. However, 

many of the values identified within 

these comments are not ‘‘economic 

costs,’’ but instead, ‘‘impact’’ measures 

(e.g., input-output multipliers) that 

reflect, for example, localized 

commercial activity. As such, they do 

not represent economic benefits or 

economic costs, as these concepts are 

employed in traditional ‘‘benefit/cost’’ 

analysis. Commercial activity impacts, 

while important distributional 

indicators, are ‘‘transfers’’ within a 

National Accounting analytical 

framework mandated under applicable 

Federal law. Distributional impacts are 

treated separately from economic costs 

and benefits in the analytical 

documents. Those economic costs that 

are correctly identified in these 

comments would, based upon NMFS’ 

economic analysis, likely be incurred 

regardless of whether critical habitat is 

designated (also see response to earlier 

comments). Furthermore, there are 

fundamental and important distinctions 

between economic ‘‘benefits and costs’’ 

and economic ‘‘impacts.’’ The former are 

crucial in evaluating ‘‘net welfare’’ 

changes; that is, do the benefits exceed 


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the costs, resulting in a net gain to 

society. Impact measures (e.g., income 

and employment multipliers) reflect 

relative economic ‘‘activity’’ in a 

specified locale, relative to a baseline 

condition. 

The commenters have confused these 

crucial economic concepts. With, for 

example, specific reference to comments 

on the FRFA, the purported ‘‘costs’’ 

identified there are not relevant to the 

traditional cost-benefit analysis. And, 

with respect to the ESA, we considered 

the economic impacts cited in these 

comments, but do not believe that they 

change the conclusion that the benefits 

of exclusion (principally monetary) do 

not outweigh the benefits (economic, 

ecological, educational, biological) of 

specifying the areas as critical habitat. 

Comment 65: A few comments point 

out that the proposed critical habitat 

area overlaps geographically with 

Alaska’s highest human population 

density and its primary economic base. 

Yet, the economic analysis conducted in 

support of the Draft RIR/4(b)(2)PA/IRFA 

cites the added costs for evaluating 

future projects in the proposed critical 

habitat at a mere $187,000 to $571,000. 

Response: Some commenters have 

expressed concern about the designation 

of critical habitat in areas of high 

population density and human 

activities. The concerns are related to 

the perceived potential economic costs 

that may be imposed by critical habitat 

designation. The Final RIR/4(b)(2)PA/ 

FRFA concludes that the economic cost 

of critical habitat designation that can 

be reasonably ‘‘monetized,’’ at present, is 

estimated to have a discounted net 

present value of approximately 

$187,000 to $571,000, assuming a 

3 percent real discount rate and 10-year 

planning horizon; and about $157,000 to 

$472,000, using a 7 percent real 

discount rate and 10-year period. 

‘‘Applicants’’ associated with section 7 

consultations on the various activities 

that could be potentially impacted are 

only expected to bear $900 to $3,500 per 

consultation in administrative costs 

related to the incremental costs of 

critical habitat designation for formal 

consultations, while they are not 

responsible for any incremental costs 

related to informal consultation. It is 

important to recall that section 7(a)(2) of 

the ESA applies only to Federal actions 

(i.e., actions authorized, funded, or 

carried out by a Federal agency). Absent 

such Federal action, activities 

undertaken in or adjacent to Cook Inlet 

are not subject to the provisions of 

section 7 consultation on critical habitat 

and will incur no attributable or 

quantifiable costs or other 

encumbrances due to the designation of 

critical habitat. Even for proposed 

Federal actions, ‘‘applicants’’ associated 

with consultations on activities such as 

oil and gas exploration and 

development, power projects, mining, 

water quality, port expansion and 

development, transportation and other 

infrastructure projects are not expected 

to bear any significant costs uniquely 

attributable (i.e., incremental) to the 

designation of critical habitat for the 

Cook Inlet beluga whale. Every Federal 

agency must consult under section 7 of 

the ESA to ensure that its action will not 

jeopardize the continued existence of 

the whale. Formal consultation is 

required if the proposed action ‘‘may 

affect’’ the whale (50 CFR 402.14(a)). 

Whether the consultation may proceed 

informally, as opposed to formal 

consultation, will depend on whether 

the action is likely to adversely affect 

the species (50 CFR 402.14(b)). 

Comment 66: Some commenters point 

out that the period employed for the 

analysis, 2009 to 2018, may be 

insufficient, particularly when dealing 

with significant resource and 

community infrastructure operations 

and development. Firms in these 

industrial sectors must balance 

disparate time horizons for capital life, 

field life, field extension, and field 

depletion rates that are rarely as short as 

10 years. 

Response: As mentioned in Section 

3.4 of the Final RIR/4(b)(2)PA/FRFA, an 

interval of 10 years is widely employed 

in the policy analysis arena. This timeframe allows sufficient scope over 

which longer-cycle trends may be 

observed (e.g., progress towards 

population recovery for the Cook Inlet 

beluga whale), yet is short enough to 

allow ‘‘reasonable’’ projections of 

changes in use patterns in an area, as 

well as shifts in exogenous factors (e.g., 

world supply and demand for 

petroleum, U.S. inflation rate trends) 

that may be influential. 

Comment 67: An independent study 

commissioned by the Resource 

Development Council (RDC) asserts that 

the Cook Inlet beluga whale critical 

habitat designation has the potential to 

result in economic impacts on RDC’s 

members ranging from $39.9 million 

and $399 million, annually. Over a 10- 

year period (the length of time utilized 

by the Draft RIR/4(b)(2)PA/IRFA) the 

present value of that lost production at 

a three percent discount rate is claimed 

to be $340.3 million to $3.4 billion, and 

at a seven percent discount rate is 

$280.2 million to $2.8 billion. These 

numbers are asserted to be conservative 

and do not take into account, for 

example, the $400 million-$600 million 

that the Anchorage Water and 

Wastewater Utility (AWWU) may be 

required to spend to upgrade its 

facilities. According to RDC, even the 

most conservative estimate of $280.2 

million over 10 years, representing an 

impact of only a one percent reduction 

in Cook Inlet region output, is 

sufficiently significant to warrant broad 

exclusions. 

Response: The independent study 

commissioned by RDC considers 

potential ‘‘impacts’’ of the proposed 

critical habitat designation to five key 

industries: oil and gas, mining, POA, 

commercial fishing, and sport fishing. 

Further, qualitative discussions of 

impacts on other projects/sectors/ 

entities are also provided, though not 

quantified. These include tourism, Knik 

Arm Bridge and Toll Authority, 

community development projects, 

Anchorage Water and Wastewater 

Authority (AWWU) discharges, Port 

McKenzie, vessel traffic, and energy 

infrastructure. 

We reviewed and considered this 

report. While the RDC’s Economic 

Analysis states that it ‘‘monetizes, 

quantifies, or qualitatively assesses the 

incremental costs and benefits to 

entities directly attributable to the 

CHD,’’ it is unclear if the analysis 

excludes the conservation measures 

already underway or which may be 

taken due to the listing of the Cook Inlet 

beluga whale. Economic impacts from 

these measures are not attributable to 

the designation of critical habitat. 

Further, given the time periods when 

most of the six studies relied upon in 

the RDC Economic Analysis for 

identifying the range of reductions were 

conducted, the impacts identified are 

likely co-extensive, not incremental. 

Therefore, the RDC Economic Analysis 

appears to significantly over-estimate 

the economic costs that are attributable 

to the designation of critical habitat. 

In terms of specific study outcomes, 

the impacts to mining in the RDC 

Economic Analysis are based on the 

premise that both the Chuitna Coal 

Project and the Pebble Project will likely 

be completed. While this may be true 

for the Chuitna Coal Project, the Pebble 

Mine project is in the planning/prepermitting/pre-development stage, and 

does not have an approved project 

description. At this time, there is 

reasonable uncertainty regarding the 

likelihood of this project (Pebble 

Project) occurring at all, let alone within 

the next 10 years. Also, many AWWU 

facilities may be required to upgrade for 

Clean Water Act (CWA) compliance, 

regardless of the designation of critical 

habitat for the Cook Inlet beluga whale. 

These costs, if incurred, are not 


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attributable to the critical habitat 

designation. 

As noted in response to a previous 

comment, the misunderstanding and 

resulting confounding of fundamental 

concepts of ‘‘economic costs and 

benefits’’ with ‘‘measures of economic 

activity’’ (e.g., employment multipliers) 

has led the commenters to derive vastly 

inflated projections of the attributable 

‘‘economic costs’’ of critical habitat 

designation. Input/output multipliers do 

not reflect, and are not equivalent to, 

economic costs or economic benefits. 

They are correctly interpreted as 

location-specific ‘‘activity measures’’ 

reflecting the rate of turnover and the 

path of exchange, for example, of a 

dollar created within the identified 

economic unit (e.g., county, region, 

state), before it leaks out into the wider 

economy. Emphasizing that such 

relative economic activity impacts are 

not relevant to the assessment of ‘‘net 

benefits to the Nation,’’ we did describe 

and evaluate the temporal and 

geographical impacts that may accrue to 

localized economic activity, to the 

extent practicable. 

Comment 68: One commenter has 

provided suggestions to improve the 

presentation of results in the Draft RIR/ 

4(b)(2)PA/IRFA as follows: 

Regarding the analysis of costs, the 

overriding conclusion from the 

[economic] analysis is that impacts on 

the private sector will be minimal. This 

point should be highlighted and the 

public sector costs should be clarified. 

In particular, Table 7.1 outlining the 

total costs (all based on ‘‘consultation’’ 

costs) is misleading. The numbers 

indicated are for a 10-year period total 

and that should be represented in the 

table itself. 

Footnote 374 is crucial to the analysis 

and yet unfortunately is buried. It 

should be part of the main text. The 

only discount rate is 3 percent as the 

‘‘social discount rate,’’ because this is a 

public/social policy choice. This is 

accepted practice in the economics 

profession. If total costs are averaged 

over the 10-year period, they only come 

out to between $18,700 to $57,000 per 

year. 

In Section 7 of the Draft RIR/ 

4(b)(2)PA/IRFA, there is no statement of 

the methods used to calculate costs. 

Once more, these are national averages 

only. 

Response: We appreciate the 

suggested improvements, and 

considered them when we completed 

the Final RIR/4(b)(2)PA/FRFA. 

Comment 69: A handful of comments 

assert that lost development 

opportunities resulting from the critical 

habitat designation will result in 

declines in both State and local tax 

revenue, and reduce the number of jobs. 

An example cited is that of Alaska’s 

already struggling oil and gas 

operations, where hundreds of oil field 

workers and professionals have been 

laid off in recent months. The comment 

asserts that critical habitat designation 

will have a further crippling effect on 

such industries. 

Response: As stated in more detail in 

response to an earlier comment and in 

the Final RIR/4(b)(2)PA/FRFA, the 

designation of critical habitat is not 

anticipated to hamper development in 

the vicinity of Cook Inlet, and thus 

would not result in declines in State 

and local tax revenues nor lost jobs. The 

additional costs incurred by industry 

that can be reasonably monetized at 

present and are uniquely attributable to 

the critical habitat designation, would 

be the negligible third party costs of 

section 7 consultations (i.e., $900 to 

$3,500 per consultation in 

administrative costs related to the 

incremental costs of critical habitat 

designation for formal consultations; no 

costs to industry are incurred for 

informal consultations). The project 

modifications and associated costs that 

may be requested, expressly due to 

consultation over potential destruction 

or adverse modification of critical 

habitat, are anticipated to be minimal 

and rare, given that most of any such 

modifications would already be 

required under ESA section 7’s jeopardy 

standard. Moreover, the nature of any 

such modification is speculative and, as 

a result, whether the modification 

ultimately increases or decreases project 

costs (and, by how much) cannot be 

determined at this time. 

Comment 70: Comments by the 

Chugach Electric Association, Inc. and 

the Resource Development Council of 

Alaska, Inc. point out that the Draft RIR/ 

4(b)(2)PA/IRFA does not mention the 

existing high voltage submarine cable 

fields that cross Knik Arm, connecting 

the Anchorage area, as well as the Kenai 

Peninsula, to Chugach’s existing 

generation plant near the Beluga gas 

fields. These cables must be maintained 

and occasionally replaced. Chugach 

spelled out for NMFS the potential 

economic impact of any delays in 

maintaining and repairing those cables, 

explaining that these delay-related costs 

are in addition to any administrative 

costs associated with ESA consultation, 

and any increased costs incurred by 

Chugach in altering its projects to 

benefit the whales. 

Response: As discussed in more detail 

in response to previous comments 

regarding exclusion of cable fields and 

overlaying waters from the critical 

habitat designation, we are not aware of 

any Federal actions in connection with 

the maintenance or repair of submarine 

cables, and the commenters have not 

indicated the existence of such Federal 

action. Therefore, absent Federal action, 

the proposed critical habitat designation 

would impose no compliance 

requirements (e.g., no delays, direct or 

indirect costs) on maintaining, 

repairing, or occasionally replacing 

submarine cables in Cook Inlet. 

Comment 71: One comment states 

that while the Draft RIR/4(b)(2)PA/IRFA 

analyzed cost impacts of critical habitat 

designation for two other tidal energy 

projects, it should be revised to include 

the potential costs of critical habitat 

designation to the Turnagain Arm Tidal 

Energy Generation project, as well. The 

Turnagain Arm Tidal Energy 

Corporation filed an application with 

the Federal Energy Regulatory 

Commission (FERC) on November 17, 

2009, for a preliminary permit to study 

the feasibility of a tidal energy 

generation system on the Turnagain 

Arm of Cook Inlet. 

Response: The Final RIR/4(b)(2)PA/ 

FRFA analyzed economic impacts of 

critical habitat designation on projects 

that are reasonably likely to occur 

during the 10-year period of analysis. In 

November 2009, the Turnagain Arm 

Tidal Energy Corporation filed for a 

preliminary permit pursuant to section 

4(f) of the Federal Power Act, proposing 

to study the feasibility of the Turnagain 

Arm Tidal Energy Generation project. 

According to the December 4, 2009, 

Federal Register document, ‘‘the sole 

purpose of a preliminary permit, if 

issued, is to grant the permit holder 

priority to file a license application 

during the permit term. A preliminary 

permit does not authorize the permit 

holder to perform any land disturbing 

activities or otherwise enter upon lands 

or water owned by others without the 

owners’ express permission.’’ Therefore, 

while it appears from the proposed 

project description that the project, if 

approved, may affect the whale’s critical 

habitat, the project is still sufficiently 

ill-defined, presumably undergoing 

design and feasibility assessments, that 

further progress towards development 

and submission of the next series of 

applications remain in pre-permitting 

stages. Absent more definitive design, 

siting, and construction information, it 

would be impossible to do more than 

offer uninformed speculation on the 

interaction, if any, between this 

potential development and designated 

critical habitat and whether the project 

may also affect the whale, requiring a 

consultation under section 7 due to the 

listing of the whale as an endangered 


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species. As such, it is not considered 

among the impacts contained in the 

Final RIR/4(b)(2)PA/FRFA’s analysis. 

Comment 72: One comment states 

that Section 7.7 of the Draft RIR/ 

4(b)(2)PA/IRFA did not analyze the Mt. 

Spur Geothermal Power Plant because a 

decision to go forward with the plant 

has not been made. Further, Table 6–28 

of the Draft RIR/4(b)(2)PA/IRFA 

describes the status of the project as 

‘‘pre-decisional, geothermal lease in 

place, no permits have been requested.’’ 

The comment further states that given 

Ormat Technologies’ (the major lease 

holder for the Mt. Spur Geothermal 

development) better record of success 

than any of the tidal energy companies 

whose projects were analyzed in the 

Draft RIR/4(b)(2)PA/IRFA, Section 7.7 

should be revised to include the 

potential costs of critical habitat 

designation to the project. 

Response: As per Sections 6.4.7 and 

7.7 of the Final RIR/4(b)(2)PA/FRFA, 

based on the best scientific data 

available and research conducted by 

NMFS, Ormat Technologies is in the 

early development/initial exploration 

stage of the Mt. Spurr Geothermal Power 

Plant, and no permits have been 

requested. Additionally, given that no 

specific preferred plan or route for the 

transmission line(s) have been 

identified, it is unclear whether this 

potential project may affect the Cook 

Inlet beluga whale and/or its critical 

habitat. In light of the fact that Ormat 

Technologies will have to submit a site 

design and transmission line corridor 

proposal, apply for and get the 

necessary permits, and secure funding 

to develop this project, any analysis of 

economic impacts to the potential 

project arising exclusively from the 

designation of critical habitat would be 

highly speculative. 

Comment 73: A commenter notes that 

Section 6.4.7 of the Draft RIR/4(b)(2)PA/ 

IRFA states that the Chakachamna 

Hydropower Plant project was 

reviewed, but determined to not have a 

connection with the critical habitat 

designation, due to its inland location 

and lack of physical connection with 

Cook Inlet. However, the project 

description clearly describes the 

project’s planned measures to protect 

salmon, which are designated as a PCE 

of the critical habitat. The project would 

discharge water flow from the facility 

into the MacArthur River near its 

confluence with Cook Inlet. The power 

transmission lines may need to cross the 

MacArthur River, and potentially Cook 

Inlet, to reach Anchorage or the Kenai 

Peninsula. Chakachamna Power has 

identified the North Forelands Dock and 

Industrial Area as its logistics base for 

construction and operation of this 

project, which would result in an 

increase in vessel traffic through this 

area. A preliminary permit application 

for this project was filed with FERC on 

December 10, 2009. Because this project 

may affect a small portion of Cook Inlet 

beluga whales’ habitat, but is highly 

unlikely to jeopardize the existence of 

the whales, project modification costs 

should be estimated. Section 7.7 of the 

Draft RIR/4(b)(2)PA/IRFA should be 

revised to include the potential costs of 

critical habitat designation to the 

Chakachamna Hydropower Plant 

project. 

Response: Based on the project 

description provided in the preliminary 

permit application for this project, filed 

with the Federal Energy Regulatory 

Commission (FERC) on December 10, 

2009, the Chakachamna Hydropower 

Plant project is located inland of Cook 

Inlet, including the proposed 

transmission lines that would connect 

to the Chugach Electric Association’s 

Beluga substation, which is also inland 

of Cook Inlet. The commenter has not 

provided any supporting information or 

empirical documentation to indicate a 

clear physical connection of the project 

with the waters of Cook Inlet, the beluga 

whale, or its critical habitat. If, as the 

commenter asserts, the North Forelands 

Dock and Industrial Area is proposed as 

the construction staging site and permit 

authorizations are sought for that 

activity, a section 7 consultation may be 

required. Given currently available 

information, however, no conclusive 

determination can be made; thus, the 

potential economic impact to the 

potential Chakachamna Hydropower 

Plant project is not analyzed in the Final 

RIR/4(b)(2)PAFIRFA. 

Comment 74: One comment by 

Chugach Electric Association notes that 

the Draft RIR/4(b)(2)PA/IRFA 

acknowledges NMFS’ obligation under 

Executive Order 13211, regarding 

‘‘Actions Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ to evaluate the 

impact of critical habitat designation on 

energy supply. However, the Draft RIR/ 

4(b)(2)PA/IRFA appears to be devoid of 

any such analysis. 

Response: Section 10.2 of the Final 

RIR/4(b)(2)PA/FRFA presents the 

‘‘Statement of Energy Effects’’ pursuant 

to Executive Order No. 13211, ‘‘Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ issued May 18, 

2001. 

Comment 75: Two comments state 

that the proposed designation of critical 

habitat to protect beluga whales in the 

Cook Inlet does not describe the 

economic impacts of the designation on 

the North Slope to Lower 48 through 

Canada gas pipeline project (also 

referred to as Alaska natural gas 

transportation project), nor how impacts 

of the designation on the economic, 

environmental, energy, and national 

security interests of the nation, relative 

to this project, which Congress has 

endorsed, were taken into consideration 

and balanced in accordance with 

Section 4 of the ESA. 

Response: Research conducted by 

NMFS through the development of the 

Final RIR/4(b)(2)PA/FRFA revealed that 

the proposed North Slope to Lower 48 

through Canada gas pipeline project, if 

permitted, would not affect the Cook 

Inlet beluga whales’ critical habitat. No 

new information or empirical 

documentation has been provided by 

the commenter with which to evaluate 

how the project would impact the 

critical habitat or vice versa. 

Comment 76: A commenter notes that 

the Draft RIR/4(b)(2)PA/IRFA should 

analyze the Alaska Natural Gas 

Development Authority (ANGDA) spur 

pipeline to Cook Inlet. ANGDA is 

planning a $2 billion pipeline to divert 

a portion of the gas from the North 

Slope to Lower 48 through Canada 

pipeline project to Cook Inlet, to replace 

dwindling local reserves and provide 

processed natural gas liquids for export 

from a to-be-developed facility, through 

Cook Inlet. This pipeline would run 

from Delta, through Glennallen, to the 

Beluga gas facility near Wasilla. 

Response: Section 6.4.1 of the Final 

RIR/4(b)(2)PA/FRFA discusses the 

subject proposed pipeline, referred to as 

Beluga to Fairbanks Natural Gas 

Pipeline Project. Potential impacts to 

this project are included in Table 6–28. 

Comment 77: Two comments state 

that Escopeta Oil’s Kitchen Lights Unit 

project to bring a jack-up rig to the Cook 

Inlet this spring and drill the #1 Kitchen 

Lights Unit well was put on hold 

indefinitely because of the proposed 

critical habitat designation for Cook 

Inlet beluga whale. According to the 

commenters, to date Escopeta Oil has 

spent over $20 million on the project 

(estimate by the second commenter is 

$50 million), and this proposed 

designation has deterred this initial 

investment away from Cook Inlet. If 

Ecopeta Oil is not allowed to drill the 

Kitchen Lights Unit by the Federal 

Government, it will lose its significant 

investment in Alaska, and the State of 

Alaska and its people will also lose a 

long-term supply of natural gas and the 

jobs and revenues created from the 

Kitchen Lights Unit development 

program. Further, should an oil and gas 

company desire to perform the costly 


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proposition of drilling an offshore well 

in the Cook Inlet with this designation, 

it will have to budget millions of dollars 

for additional consultations, duplicative 

permits, delays, legal fees, and 

litigation—without any guarantee of 

drilling the first well. 

Response: Section 6.4.1 and 7.1.1 and 

Table 6–28 of the Final RIR/4(b)(2)PA/ 

FRFA discuss the status and impacts to 

Escopeta Oil’s Kitchen Lights Unit. 

Additional research conducted by 

NMFS reveals that the Kitchen Lights 

Unit program has a history of delays due 

to the company not being able to fulfill 

several commitments required not only 

for technically exploring its prospects, 

but also for meeting the legal terms of 

the State of Alaska’s oil and gas leases. 

The latest available information suggests 

that, as part of its agreement with the 

State of Alaska to hold onto its Kitchen 

Lights leases, Escopeta Oil has to drill 

an exploration well in the unit by the 

end of 2010. However, following the 

proposed designation, the company 

asked the State of Alaska in a December 

16, 2009, letter to guarantee no Federal 

interference in the company’s Cook Inlet 

oil and gas drilling activities planned 

for 2010 (Petroleum News, December 

20, 2009). The State did not offer such 

a guarantee (Petroleum News, December 

27, 2009). It is anticipated that, while 

the project’s potential to affect critical 

habitat could trigger the section 7 

consultation process and may result in 

project modifications, there is no 

evidence suggesting that the potential 

loss of initial investment in Cook Inlet 

activities by the company due to the 

project being put on hold is attributable 

to the designation. Future economic 

impacts may arise from the need to 

consult under section 7 to avoid 

jeopardy and/or to avoid destroying or 

adversely modifying critical habitat. 

However, the commenter did not 

present any evidence indicating that 

there would be impacts attributable only 

to the critical habitat designation, nor 

when in the future such renewed 

activity might be expected. 

Comment 78: One commenter notes 

that impacts to the $4 billion Enstar 

bullet pipeline should be considered. 

The proposed pipeline would connect 

Alaska North Slope gas fields through 

Fairbanks to the Beluga gas facility. This 

project is competing with the ANGDA 

spur line project to supply both local 

consumption and liquid products 

export. According to the commenter, 

Enstar is currently pursuing Alaska 

environmental permits for this project. 

Response: Research conducted by 

NMFS suggests that Enstar bullet 

pipeline, now referred to as Alaska 

Stand Alone Pipeline (ASAP), is in the 

preliminary planning and engineering 

stage. The plan, initiated originally by 

Enstar Natural Gas, is now being 

coordinated by the Alaska Governor’s 

office. The preparation of an 

Environmental Impact Statement has 

been initiated. Given that the project 

alternatives have not been finalized yet, 

it is unclear whether the pipeline itself 

will reach the waters of Cook Inlet; 

however, it is possible that some 

associated facilities may be located in 

the vicinity. Because the project is in 

such preliminary stages, what activities 

it may stimulate in Cook Inlet and how 

those activities would be impacted by 

the designation of the beluga whales’ 

critical habitat is too speculative for 

consideration in the economic analysis. 

Comment 79: The Tyonek Native 

Corporation states that impacts of the 

proposed critical habitat designation on 

the following two projects should be 

considered in the analysis: 

The Corporation is developing plans 

to mine and export high quality 

aggregate from its North Forelands Dock 

and Industrial Area using the existing 

adjacent pier, which would require 

modification (see http:// 

www.tyonek.com/Presentations/tncwci08.pdf). According to the 

commenter, the project would result in 

increased vessel traffic through this 

area. This project is expected to have a 

total construction cost of approximately 

$20 million. 

Alaska Natural Resources to Liquids 

recently completed a $1.5 million 

preliminary feasibility study with the 

help of the Alaska Industrial 

Development and Export Authority (see 

http://www.aidea.org/PDF%20files/ 

BelugaCTLoverview9-20-06.pdf) on the 

Beluga Coal to Liquids Plant. Plans call 

for using coal from the Chuitna coal 

fields to produce 80,000 barrels per day 

of diesel and naphtha for U.S. West 

Coast markets. In addition, the facility 

would produce jet fuel and 

petrochemical feedstocks. This fuel 

would be shipped out of the existing 

North Forelands Dock, which would 

require modification, and result in 

increased vessel traffic through this 

area. This project is expected to have a 

total construction cost, including 

supporting infrastructure, of 

approximately $12 billion. 

Because these projects may affect a 

small portion of Cook Inlet beluga whale 

habitat, but are highly unlikely to 

jeopardize the existence of the whales, 

project modification costs should be 

estimated. The Corporation has 

requested that Sections 6.4.2, 7–2, and 

9–2–1.1 and Table 6–28 of the Draft 

RIR/4(b)(2)PA/IRFA be revised to 

include the potential cost impacts of 

critical habitat designation to these 

projects. 

Response: The commenter has not 

provided sufficient information 

regarding the current stages of the 

projects, or the likelihood of these 

occurring in the next 10 years, with 

which to conduct an evaluation of the 

economic impacts on these project 

proposals from the designation of 

critical habitat. Even if the projects were 

reasonably likely to occur during the 

time period under analysis, the 

modification of the North Forelands 

Dock would require a Federal permit, 

likely from the U.S. Army Corps of 

Engineers (ACOE), which would likely 

trigger a section 7 consultation (possibly 

two—one for each project). The 

consultation could be formal if the dock 

modification requires pile driving or 

informal otherwise. However, the costs 

associated with the consultation to 

ensure that the project does not destroy 

or adversely modify critical habitat 

would be co-extensive with those 

arising from the consultation to ensure 

that the project does not jeopardize the 

whales’ existence. Such consultation is 

required if a Federal action may affect 

the endangered Cook Inlet beluga whale 

(50 CFR 402.14). 

As for the increase in vessel traffic, it 

would be considered an indirect, 

interrelated, or interdependent action 

under the consultation. Given that it is 

unclear at this point if the increase in 

vessel traffic associated with the 

projects would create enough noise to 

cause abandonment of habitat, the 

increased vessel traffic would likely 

raise questions concerning whether the 

action would result in takings of the 

whale. Accordingly, economic impacts 

associated with the consultation over 

that action would be co-extensive 

between the jeopardy and destruction/ 

adverse modification of critical habitat 

standards. 

Comment 80: A commenter notes that 

the proposed critical habitat designation 

is likely to have a significant impact on 

exploration for and production of 

natural gas in the Cook Inlet region, 

which could directly affect the cost of 

electricity to Chugach Electric 

Association’s customers. Chugach 

generates most of its electricity from 

natural gas produced in the Cook Inlet 

region. Designating the upper half of 

Cook Inlet, South to below Kalgin 

Island, as beluga whale critical habitat 

sweeps in all of the existing offshore oil 

and gas fields in the Inlet. This is likely 

to have an impact on all future oil and 

gas exploration in the region. The Draft 

RIR/4(b)(2)PA/IRFA contains no 

meaningful discussion of the impact 

this will have on future oil and gas 


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exploration and development in Cook 

Inlet, and no discussion of the resulting 

impact on the cost of electricity in the 

Railbelt region, where most of Alaska’s 

population is located. These economic 

impacts should have been part of the 

Draft RIR/4(b)(2)PA/IRFA. When these 

costs are given their proper weight, it 

should be readily apparent that the 

potential benefits to the whales of an 

unfocused and overly broad critical 

habitat designation are outweighed by 

the resulting economic impacts. 

Response: As has been explained in 

more detail in responses to other similar 

comments above, oil and gas 

exploration activities are already 

required to comply with ESA section 7’s 

jeopardy standard due to the listing of 

Cook Inlet beluga whale. It is the 

additional economic impacts that stem 

from the designation of critical habitat 

that comprise the economic impacts of 

section 7 consultations analyzed 

pursuant to section 4(b)(2) of the ESA. 

The comment suggests that future oil 

and gas exploration in Cook Inlet will be 

adversely impacted by the critical 

habitat designation, with resulting costs 

imposed on electricity users throughout 

the Railbelt region of Alaska, in the form 

of (implicitly) higher costs. We do not 

agree with these assertions for the 

following reasons. First, the incremental 

cost uniquely attributable to the critical 

habitat designation as it pertains to 

project review within Cook Inlet has 

been demonstrated to be very small. 

Economic impacts arising from the need 

to consult under section 7’s jeopardy 

standard are not considered to be 

economic impacts arising from the 

designation of critical habitat. After 

review of the best scientific data 

available regarding the status of the 

beluga whale and the nature of the 

reasonably foreseeable Federal actions 

in and around Cook Inlet, we concluded 

that a substantial portion of the 

economic impacts associated with the 

designation of critical habitat are coextensive with those arising from the 

listing decision. Second, the empirical 

data and commercial information (much 

of which is cited by numerous 

commenters referenced above) suggest 

that supplies of gas in Cook Inlet are 

nearing exhaustion. This conclusion is 

also evidenced in the marketplace by 

the several competing proposals to 

supply North Slope gas to the Cook Inlet 

region via pipeline. If, as asserted by the 

region’s oil and gas industry sector 

representatives (see submitted 

comments on gas pipelines and critical 

habitat designation, above), tens of 

millions to hundreds of millions of 

dollars have been invested by several 

competing interests in efforts to build a 

gas delivery system to ‘‘move available 

gas into the Cook Inlet region’’ in 

response to dwindling local supplies, it 

appears that the marketplace and nature 

of supply and demand are having, and 

will continue to have, significant 

economic impacts on future Cook Inlet 

gas exploration. 

Comment 81: Several comments state 

that the proposed designation of the 

entire Cook Inlet as critical habitat for 

the beluga whale creates an additional 

stigma towards future exploration and 

development in the Cook Inlet region. 

The negative impact created by this 

designation creates an anti-development 

stigma that is contrary to the national 

energy policy and prejudices Alaska’s 

ability to responsibly explore and 

develop its natural resources for the 

benefit of all Alaskans. 

Potential investors may withdraw 

their support for projects in the Cook 

Inlet region because of increased project 

costs. The additional costs include: 

compliance costs, litigation costs related 

to suits initiated by NGOs, and perhaps 

the greatest of all, lost opportunity costs 

resulting from loss of investment. The 

evaluation of the economic costs of 

critical habitat must include a complete 

evaluation of these factors by 

independent investigators from outside 

the agencies involved in the listing and 

habitat designation process. 

Response: While substantial areas of 

Cook Inlet are proposed for inclusion in 

this designation action, critical habitat 

does not extend to the entire inlet. 

Indeed, the vast majority of the lower 

inlet is not proposed for inclusion. We 

cannot speculate on ‘‘stigma’’ or ‘‘loss of 

investor interest’’ as no empirical 

evidence or analysis of such effects for 

Cook Inlet exists. Moreover, as our 

economic impact analysis indicates, 

most of the economic impacts on future 

natural resource exploration and 

development in Cook Inlet arising from 

ESA compliance requirements would 

exist even without the designation of 

critical habitat. 

Comment 82: A number of 

commenters note that the proposed 

critical habitat designation may affect 

barge and vessel activity in Cook Inlet, 

resulting in impacts to their projects. 

Critical habitat designations could 

increase costs by requiring observers on 

board, decrease efficiency by setting 

speed limits or time and area 

restrictions, and ultimately raise the 

cost of all goods, and subsequent 

services, paid for by Alaskans. Any 

shipping delays will have particularly 

significant consequences for this area, 

because shipping schedules are affected 

by tides, and delays are compounded by 

the fact that Anchorage has minimal 

storage capacity for goods and must 

carefully coordinate shipping schedules. 

Certain planned projects are anticipated 

to significantly increase vessel traffic, 

and commenters request these impacts 

be included in the Draft RIR/4(b)(2)PA/ 

IRFA. 

Response: Section 7 of the ESA does 

not apply generically to vessel 

movement or activity. As explained 

previously, section 7’s consultation 

requirements apply only when there is 

a Federal action (actions authorized, 

funded, or carried out by a Federal 

agency). The designation of critical 

habitat for the Cook Inlet beluga whale 

is not anticipated to require any 

additional restrictions on barge and 

vessel movement, above and beyond 

any such restrictions already being 

imposed following section 7 

consultations to avoid jeopardy. 

Generally, where a proposed Federal 

action will result in increases in vessel 

traffic, such increases are considered 

indirect effects or arising from 

interrelated or interdependent actions 

under section 7 consultation regulations 

(50 CFR 402.02). Given that it is unclear 

at this point if the potential increases in 

vessel traffic associated with projects in 

Cook Inlet could create enough noise to 

result in the abandonment of critical 

habitat areas, the increased vessel 

traffic, if it were to represent a concern, 

would likely be considered a take issue. 

Accordingly, the economic impacts 

from that consultation would be 

attributable to the listing of the whale as 

an endangered species. 

Comment 83: Some comments suggest 

that in order to conform to the critical 

habitat designation, the Anchorage 

Water and Wastewater Authority 

(AWWU) must upgrade its sewage 

treatment plant, which would cost 

between $400 million and $1 billion. 

This could potentially triple Anchorage 

residents’ wastewater bills. Nowhere is 

this reflected or accounted for in the 

Draft RIR/4(b)(2)PA/IRFA, which is 

clearly contrary to the requirements of 

the ESA. 

Response: Sections 6.4.6 and 7.6 and 

Table 6–28 of the Final RIR/4(b)(2)PA/ 

FRFA describe the potential costs of the 

proposed critical habitat designation to 

AWWU. The costs that can 

appropriately be attributed to critical 

habitat designation are anticipated to 

stem solely from a formal section 7 

consultation. It is expected that in 

compliance with the CWA, AWWU may 

be required by the Environmental 

Protection Agency (EPA) to upgrade its 

John Asplund Wastewater Treatment 

Plant (WWTP), to meet national waste 

water discharge standards. The 

compliance exemption for the facility 


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has expired and EPA is currently 

reviewing the facility’s operating 

permit. Therefore, any resulting cost 

associated with the upgrade or 

improvement of the plant to meet CWA 

mandates would not be attributable to 

the designation of Cook Inlet beluga 

whale critical habitat. 

Comment 84: One comment notes that 

the City of Kenai operates a wastewater 

treatment plant at the mouth of the 

Kenai River. The permitted discharge is 

into Cook Inlet. We expect, but cannot 

confirm, that the City will have to 

comply with new effluent standards, as 

a result of the designation. The cost of 

plant upgrades could range from 

$250,000 to $50,000,000. 

Response: The Final RIR/4(b)(2)PA/ 

FRFA discusses the Kenai Wastewater 

Treatment Facility in Section 6.4.6. The 

facility is considered a major discharger 

under EPA standards. As discussed in 

the response to the previous comment 

regarding John Asplund WWTP, any 

required upgrades to the facility in order 

to comply with CWA standards would 

not be attributable to the critical habitat 

designation. 

Comment 85: One commenter states 

that there is increasing demand for coal 

in Pacific Rim countries. After many 

years of lackluster demand in the export 

coal market, prospects are looking better 

for development of a coal export 

business, and Cook Inlet could play a 

key role in that development. Critical 

habitat designation in the Port 

Mackenzie area and for the shipping 

lanes through upper Cook Inlet could be 

a serious impediment to coal and other 

export opportunities. Clearly, there are 

many opponents to coal development, 

and critical habitat designation would 

provide them with a powerful tool to 

hamper and potentially stop coal and 

other bulk commodity exports, with no 

corresponding benefit to the beluga 

whales. 

Response: As explained above, the 

designation of critical habitat for the 

Cook Inlet beluga whale is not 

anticipated to require any additional 

restrictions on barge and vessel 

movement in Cook Inlet, above and 

beyond those already being imposed 

following section 7 consultations to 

avoid jeopardy. 

Comment 86: Several comments 

suggest that the proposed critical habitat 

designation could affect tourism in 

Southcentral Alaska. Holland America 

Cruise Lines is planning to bring 

numerous cruise ships into the POA and 

Homer. Future moorings by the industry 

could be decreased or eliminated as a 

result of a critical habitat designation. 

Subsequently, decrease in the number of 

visitors to Southcentral Alaska could 

transpire as limitations are placed on 

sport fishing, sightseeing cruises, and 

other operations. Local communities 

will be significantly impacted through 

decreased bed and rental taxes. 

Response: As discussed in an earlier 

response, the POA is not included in the 

proposed critical habitat designation 

because of impacts to national security. 

Therefore, future moorings at POA are 

not likely to be affected by the 

designation of critical habitat for the 

Cook Inlet beluga whale. 

Comment 87: A large number of 

comments provided both through 

written letters and orally during the 

public hearings assert they place a very 

great value upon, and derive substantial 

personal utility and enjoyment from, 

watching Cook Inlet beluga whales and 

having the opportunity to interact with 

the species in a wild environment. 

Further, some commenters made special 

note of the need to preserve this 

experience for future generations. 

Response: We acknowledge these 

comments on the benefits accruing to 

area residents, tourists, and other 

visitors to Cook Inlet, and the value 

experienced by those interested in 

maintaining for future generations the 

opportunity to encounter the Cook Inlet 

beluga whale in its native habitat in 

such close proximity to a large 

population center. We provided an 

extensive treatment of the theoretical 

foundations, technical considerations, 

and empirical methodologies that have 

been developed and applied to 

quantitatively measure and evaluate 

economic benefits attributable to nonmarket use and passive-use values, as 

reflected in these comments. We believe 

that the designation of critical habitat 

will play a major role in ensuring the 

conservation of the Cook Inlet beluga 

whale to the benefit of current and 

future generations. 

Comment 88: Several comments 

question the benefits of the proposed 

critical habitat designation (due to 

preserving the natural beauty of Cook 

Inlet) in attracting and retaining 

workers, and in adding value to visitors 

who recreate in the area. Concern is 

expressed that benefits in retaining 

workers are hypothetical and that Cook 

Inlet is one of the most pristine areas of 

the United States, such that workers 

would not reasonably be affected by the 

proposed critical habitat designation in 

their location decision. One commenter 

also suggested that these benefits can 

only be realized if there are jobs present 

that enable people to live and work in 

the Cook Inlet area. 

Response: It is well documented that 

quality of life factors, including 

environmental quality and recreation 

opportunities, enter into employee and 

business location decisions (see Love 

and Crompton, 1999; Florida, R, 2000; 

Granger and Blomquist, 1999). To the 

extent that the proposed critical habitat 

designation preserves the environmental 

quality, natural resource amenities, and 

recreation opportunities in Cook Inlet, 

visitors and residents alike will benefit. 

It is not known how the incremental 

improvement in environmental quality, 

due to the proposed critical habitat 

designation, will affect the ability of any 

particular business or industry to attract 

and retain employees; hence, the Final 

RIR/4(b)(2)PA/FRFA notes that these 

benefits are likely to be ‘‘relatively 

small’’ and are not quantified in the 

analysis. Regarding job growth, 

recreation and tourism industries 

depend on aesthetic amenities, 

environmental quality, access to fish 

and wildlife (e.g., fishing, hunting, 

viewing, photographing), etc., and it is 

precisely these aspects and attributes 

that are expected to benefit due to the 

proposed critical habitat designation in 

Cook Inlet. 

Comment 89: Several comments 

expressed concern about the lack of 

quantification of benefits of the 

proposed critical habitat designation. 

According to some comments, this leads 

to an overstatement of speculative or 

hypothetical benefits, and an arbitrary 

and biased conclusion that the proposed 

critical habitat designation results in a 

net benefit to the Nation. Additional 

concern is expressed that the net benefit 

finding is not replicable, and that there 

is no evidence or factual basis for these 

benefits. One comment also notes that 

well-being, as a measure of benefit, is 

ill-defined, and questions what ‘goods 

and services’ would be provided to the 

public due to the proposed critical 

habitat designation that would increase 

well-being. Other comments assert that, 

by not quantifying benefits, the analysis 

understates the benefits of the proposed 

critical habitat designation. 

Response: The principal benefit of the 

proposed critical habitat designation is 

the avoidance of destruction or adverse 

modification of the critical habitat of the 

Cook Inlet beluga whale, supporting the 

conservation and recovery of this 

endangered species, as provided for 

under the ESA. These benefits are 

biological. Ancillary economic, 

socioeconomic, cultural, educational, 

and procedural benefits are also 

expected to accrue, associated with the 

designation and related preservation 

and possible incremental improvement 

of the inlet’s environmental quality. 

Quantifying economic benefits requires 

identifying the net change in 

environmental amenities and service 


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flows, such as air quality, water quality, 

or fish and wildlife populations (among 

others), specifically attributable to, in 

this instance, the proposed Cook Inlet 

beluga whale critical habitat 

designation. While the degree of 

biological, environmental, and 

economic benefit is not readily 

amenable to quantification, it is known 

that relatively small changes in 

environmental quality and wildlife 

abundance can provide significant 

economic benefits (also referred to as 

increased well-being or utility) through 

both use and non-use values. Evidence 

of these types of values is documented 

in the Final RIR/4(b)(2)PA/FRFA. Thus, 

while it is not possible to monetize, or 

even quantify these benefits, the best 

economic data available provide 

substantial evidence that the magnitude 

of anticipated benefits outweigh the 

anticipated costs. This is supported by 

the fact that we have determined, based 

upon the best scientific data available, 

the incremental cost attributable to the 

proposed critical habitat designation is 

likely small, relative to the expected 

benefits. 

Comment 90: Several comments note 

that NMFS has stated it has little 

specific empirical information with 

which to predict how consultations 

initiated by critical habitat 

considerations might lead to any 

particular project modification, yet the 

stated primary benefit in the Draft RIR/ 

4(b)(2)PA/IRFA of critical habitat is the 

requirement for consultations to ensure 

that action agency actions do not modify 

or destroy critical habitat. These 

comments assert that NMFS has not 

shown how the measurable 

improvement would be attributable to 

the proposed critical habitat designation 

and, thus, lacks a factual basis for 

estimating benefits. Similarly, several 

comments note that it is important to 

distinguish the incremental benefits of 

the proposed critical habitat designation 

from the baseline benefits of listing the 

Cook Inlet beluga whale, as well as 

other existing management and 

regulatory requirements. 

Response: The commenters are correct 

that we have stated that the primary 

benefit of critical habitat designation is 

the biological benefit that will accrue 

from consultations that result in 

avoiding or minimizing adverse 

modification or destruction of critical 

habitat. As stated in the Final RIR/ 

4(b)(2)PA/FRFA, ‘‘The primary driver 

for benefits from [the critical habitat 

designation] is a potential change in the 

quality or condition of the critical 

habitat absent [the critical habitat 

designation].’’ Critical habitat 

designation is, fundamentally, an action 

to promote the conservation of the 

species. Ancillary economic, 

socioeconomic, educational, procedural, 

cultural, and aesthetic benefits (among 

others) also accrue from the critical 

habitat designation, contributing to the 

aggregate benefit measure. While the 

exact number of affected projects and 

the precise types of project 

modifications that may be uniquely 

attributable to the critical habitat 

designation (and not the listing of the 

Cook Inlet beluga whale) cannot be 

known, we reasonably assume that 

whatever modifications occur, they will 

contribute to the conservation of Cook 

Inlet beluga whales and generate 

biological benefits that yield associated 

economic value. 

We agree that, in assessing the 

benefits arising from the designation of 

critical habitat, we must focus on those 

incremental benefits that are uniquely 

attributable to the designation and not 

to the endangered listing. Our analysis 

endeavored to distinguish between such 

incremental and co-extensive benefits. 

Comment 91: Numerous comments 

emphasize the social and cultural 

importance of the beluga whale to the 

region, as indicated by the naming of 

places, such as Beluga Lake, in the 

region and the traditional ways that are 

centered on the Cook Inlet beluga 

whale. Several comments indicate that 

the dollar value of the social and 

cultural benefits is very high. 

Response: The Final RIR/4(b)(2)PA/ 

FRFA discusses the cultural use and 

passive use importance of the Cook Inlet 

beluga whale and notes such examples 

as the traditional subsistence and 

cultural harvesting by Alaska Native 

groups, the naming of places, public 

educational displays, numerous 

technical and popular books, and the 

utility accruing to individuals from the 

knowledge that Cook Inlet beluga 

whales persist within their natural 

habitat in Cook Inlet. Cultural use 

values are recognized as real and 

potentially significant benefits deriving 

from the proposed critical habitat 

designation, but have not been 

estimated in dollar terms, owing to the 

complexity, high cost, and controversy 

associated with estimation of such 

values. Cultural values have been 

asserted by some to be unique to each 

group of people and, as such, do not 

readily lend themselves to monetary 

approximation. Similarly, cultural 

passive use values are not quantified, as 

there are not appropriate studies 

available upon which to base rigorous, 

quantitative estimates. 

Comment 92: A number of comments 

question the potential of the proposed 

critical habitat designation to increase 

fish stocks and benefit commercial and 

sport fisheries. Some comments cite 

baseline requirements to maintain the 

reproductive capacity of fish stocks as 

indicating that critical habitat will not 

increase stocks, while other comments 

note that, to the extent that critical 

habitat increases the Cook Inlet beluga 

whale population, consumption of fish 

by beluga whales will result in a net 

decrease in available fish for 

commercial and sport anglers. One 

comment also asserts that fishing will be 

limited in the proposed critical habitat 

designation if it is found to have 

potential adverse effects on the 

environment, while other comments 

note that the analysis should further 

assess the benefits of enhanced 

commercial and sport fisheries 

attributable to the proposed critical 

habitat designation. 

Response: As noted in the Final RIR/ 

4(b)(2)PA/FRFA, it is possible that 

commercial and sport fisheries will 

experience small, indirect benefits 

attributable to the proposed critical 

habitat designation, as fish stocks share 

habitat with Cook Inlet beluga whales 

and benefit from avoidance of 

destruction or adverse modification of 

that (i.e., their common) habitat. Effects 

of the proposed critical habitat 

designation on fishing activity are likely 

to be limited, because most of the 

fisheries in Cook Inlet occur in state 

waters and are managed by the State of 

Alaska. Though speculative, were a 

Federal action to occur that implicated 

those fisheries, effects from their 

management would likely be considered 

in the cumulative effects section of the 

biological opinion (See 50 CFR 402.02). 

At this time, however, it is impossible 

to speculate as to what that Federal 

action would be and how the statemanaged fisheries would be analyzed. 

As described in the Final Draft RIR/ 

4(b)(2)PA/FRFA, it is anticipated that 

there will be an informal consultation, 

approximately every 5 years, over 

Federal management of Cook Inlet 

commercial groundfish fisheries, 

attributable to the designation of the 

beluga whales’ critical habitat. 

Comment 93: Several comments 

question the benefit of education and 

outreach associated with the proposed 

critical habitat designation, and assert 

that this is a baseline benefit that 

accrues due to the 2008 Conservation 

Plan for the Beluga Whale. 

Response: The volume of public 

comments received on the Draft RIR/ 

4(b)(2)PA/IRFA indicates the level of 

public awareness of this process and the 

potential for education and outreach 

benefits. Furthermore, the consultation 

process, itself, serves to increase 


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awareness and sensitivity in design, 

execution, and operation of proposed 

projects. 

Comment 94: Several comments note 

that the Alaska tourism industry, 

including activities such as whale 

watching, are important to the Alaskan 

economy and may benefit from the 

proposed critical habitat designation. 

These comments note that tourists are 

attracted to Alaska because of the scenic 

beauty and wildlife viewing 

opportunities, and protecting these 

assets has direct economic benefit. 

Response: As noted in the Final RIR/ 

4(b)(2)PA/FRFA, leisure activities, such 

as fishing, whale watching, and other 

wildlife viewing may be enhanced by 

the proposed critical habitat 

designation, insofar as the designation 

prevents or mitigates degradation, 

destruction, or adverse modification of 

critical habitat areas. While the 

recreation-related economic benefits of 

the proposed critical habitat designation 

are real, and potentially significant, 

these benefits have not been estimated 

in dollar terms because empirical data 

and relevant research are not currently 

available. It is reasonable to assume, 

nonetheless, that designation of critical 

habitat in Cook Inlet for the beluga 

whale will benefit recreation and 

tourism, and the businesses that depend 

upon and support these user groups. 

Comment 95: Several comments were 

provided regarding the comparison of 

market-based, monetary estimates of 

economic cost, to non-market benefits 

measured through willingness-to-pay 

studies and other methods. Some 

comments questioned the reliability and 

validity of estimates of non-market 

values, while other comments noted 

that there are inherent values to the 

proposed critical habitat designation 

that are not measured in the 

marketplace with dollar values. 

Response: Non-market valuation of 

species, habitats, and environmental 

amenities is an accepted and standard 

practice in the economics profession 

and endorsed for use by Federal 

agencies, when and where market prices 

do not exist. According to Office of 

Management and Budget guidelines for 

economic analysis of Federal 

regulations under Executive Order 

12866, all benefits to society should be 

measured in cost-benefit analyses of 

Federal regulations, including nonmarket benefits that are not traded 

directly in the marketplace. The 

Executive Order stipulates that 

estimation of the monetary value of 

goods or services indirectly traded in 

the marketplace (such as whale 

watching trips and scenic views from 

residential homes) should be based on 

willingness-to-pay valuation 

methodology, using actual market 

transactions where possible. For goods 

that are not traded directly or indirectly 

in the marketplace, the Executive Order 

recommends the use of contingentvaluation methods to estimate economic 

value. At present, no such empirical 

studies have been completed for the 

Cook Inlet beluga whale or its critical 

habitat. We have, however, initiated just 

such an analysis. Its results are not 

expected to be available for several 

years. Until that time, it must suffice to 

observe that non-market, non-use, and 

passive-use economic values represent 

relevant, and very often significant, 

aspects of the benefits deriving from 

Federal actions pertaining to ESA 

listings and critical habitat designation. 

These estimation techniques, such as 

the contingent valuation method, have 

been reviewed and approved by peer 

review scientific panels and sanctioned 

by Federal courts. 

Comment 96: A few comments cite 

additional economic studies that could 

be used to develop value estimates of 

the proposed critical habitat 

designation, including studies from 

Japan, regarding the value of beluga 

whales, a study on the benefits of 

expanding California’s sea otter 

population, and a study of the benefits 

of designating critical habitat for the 

lynx. Another comment asserted that 

‘‘benefits transfer’’ estimation techniques 

can be applied to the estimation of nonmarket values attributable to Cook Inlet 

beluga whale critical habitat 

designation, using a value function. 

Response: There are numerous peerreviewed studies, such as those referred 

to in the comments, which provide 

estimates that provide nonmarket value 

of species and habitat. As discussed in 

Appendix A of the Final RIR/4(b)(2)PA/ 

FRFA, we have determined that the 

values from these studies are not 

directly applicable to the Cook Inlet 

beluga whale, beyond confirming that 

non-market and passive-use values exist 

with respect to the designation of 

critical habitat for the Cook Inlet beluga 

whale. 

There are approaches to quantitatively 

estimating the value of critical habitat 

designation, such as outlined in Kroeger 

(2004), a study referenced in the 

comments. Kroeger outlined a metaanalysis approach (which is regression 

analysis of several studies’ results) for 

determining the per-acre net benefits for 

critical habitat conservation for lynx 

habitat conservation areas. Kroeger 

points out that generating benefit 

transfer estimates through meta-analysis 

could be error prone, if the studies used 

in the meta-analysis differ from the 

study site in perceived resource quality. 

Another study recommended in the 

comments used a meta-analysis 

approach to derive the benefits to 

California households of an increased 

southern sea otter population. Based on 

existing valuation literature on the 

species (and other rare and endangered 

species), this study estimates the nonmarket benefits of the species itself. 

This study thus values species based on 

population increases, rather than habitat 

designation. This differs from the policy 

context for estimating benefits of beluga 

whale proposed critical habitat 

designation, as there are no quantitative 

estimates available for how the 

proposed critical habitat designation 

will affect Cook Inlet beluga whale 

population estimates. 

Cultural values of species habitat 

conservation inherently differ by 

culture. Values derived in Japan, while 

an indicator of potential value, are not 

used in this analysis. 

Comment 97: Several comments 

concern the assumptions regarding the 

current environmental conditions in 

Cook Inlet, or regarding the effect of the 

proposed critical habitat designation on 

environmental conditions. Specifically, 

some comments assert that the analysis 

erroneously assumes that degradation of 

habitat is inevitable in the absence of 

the proposed critical habitat 

designation, while others allege that the 

analysis mistakenly assumes that the 

proposed critical habitat designation 

will improve the quality of the natural 

environment in Cook Inlet, above 

current levels. One commenter was 

concerned that the analysis implies that 

Cook Inlet is currently polluted. 

Response: The Final RIR/4(b)(2)PA/ 

FRFA recognizes that the current state 

of Cook Inlet is suitable for the 

conservation and recovery of the 

species. The aim of the critical habitat 

designation is to bring about the 

conservation of the Cook Inlet beluga 

whale through the creation of the 

benefits described above. The analysis 

does assume that, in the absence of the 

designation, the risk of degradation is 

unacceptably high and that through 

consultations the risk of degradation 

otherwise occurring in connection with 

Federal actions in Cook Inlet will be 

reduced. 

Critical Habitat 

4(b)(2) of the ESA requires us to 

designate critical habitat for threatened 

and endangered species ‘‘on the basis of 

the best scientific data available and 

after taking into consideration the 

economic impact, the impact on 

national security, and any other relevant 


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impact, of specifying any particular area 

as critical habitat.’’ This section also 

grants the Secretary of Commerce 

(Secretary) discretion to exclude any 

area from critical habitat if he 

determines ‘‘the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat.’’ The Secretary’s 

discretion is limited, as he may not 

exclude areas that ‘‘will result in the 

extinction of the species.’’ 

The ESA defines critical habitat under 

section 3(5)(A) as: ‘‘(i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed 

* * *, on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by the species at the time it is listed 

* * * upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species.’’ 

Once critical habitat is designated, 

section 7 of the ESA requires Federal 

agencies to ensure they do not fund, 

authorize, or carry out any actions that 

will destroy or adversely modify that 

habitat. This requirement applies along 

with the section 7 requirement that 

Federal agencies ensure their actions do 

not jeopardize the continued existence 

of listed species. 

Physical and Biological Features 

Essential for Conservation 

ESA section 3(5)(A)(i) defines critical 

habitat to include those ‘‘specific areas 

within the geographical area occupied 

by the species at the time it is listed 

* * * on which are found those 

physical or biological features * * * (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection.’’ Joint NMFS/FWS 

regulations for listing endangered and 

threatened species and designating 

critical habitat at section 50 CFR 

424.12(b) state that the agency ‘‘shall 

consider those physical and biological 

features that are essential to the 

conservation of a given species and that 

may require special management 

considerations or protection’’ (also 

referred to as ‘‘Essential Features’’ or 

‘‘Primary Constituent Elements’’). 

Pursuant to the regulations, such 

requirements include, but are not 

limited to, the following: (1) Space for 

individual and population growth, and 

for normal behavior; (2) food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and 

(5) habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distributions of a species. These 

regulations go on to emphasize that the 

agency shall focus on essential features 

within the specific areas considered for 

designation. These features ‘‘may 

include, but are not limited to, the 

following: roost sites, nesting grounds, 

spawning sites, feeding sites, seasonal 

wetland or dryland, water quality or 

quantity, geological formation, 

vegetation type, tide, and specific soil 

types.’’ 

Scientific research, direct observation, 

and TEK indicate fish are the primary 

prey species of the Cook Inlet beluga 

whale, and that certain species are 

especially important. This importance 

may be due to feeding strategies of the 

whales, physical attributes of the prey 

(e.g., size), the caloric value of the prey, 

the availability of the prey, and the lifehistory aspects of the whales, among 

other considerations. Two fish species 

that are highly utilized by Cook Inlet 

beluga whales are king (Chinook) 

salmon and Pacific eulachon (hooligan). 

Both of these species are characterized 

as having very high fat content, 

returning to the upper Inlet early in the 

spring, and having adult (spawning) 

returns which occupy relatively narrow 

timeframes during which large 

concentrations of fish may be present at 

or near the mouths of tributary streams. 

Analysis of stomach contents and 

research of fatty acid signatures within 

beluga blubber indicate the importance 

of other species of fishes and 

invertebrates to the diets of these 

whales. The most prominent of these are 

other Pacific salmon (sockeye, chum, 

and coho), Pacific cod, walleye pollock, 

saffron cod, and yellowfin sole. Beluga 

whales are also known to feed on a wide 

variety of vertebrate and invertebrate 

prey species. However, the 

aforementioned fish species occupy a 

prominent role in their foraging and 

energetic budgets and are considered 

essential to the beluga whales’ 

conservation. 

NMFS research has considered the 

distribution of the Cook Inlet beluga 

whale and its correlations with 

behavior, habitat function, and physical 

parameters (Goetz et al., 2007). While 

these whales are highly mobile and 

capable of ranging over a large portion 

of Cook Inlet on a daily basis, in fact 

they commonly occupy very discrete 

areas of the Inlet, particularly during 

summer months. These areas are 

important feeding habitats, whose value 

is due to the presence of certain species 

of prey within the site, the numbers of 

prey species within the site, and the 

physical aspects of the site which may 

act to concentrate prey or otherwise 

facilitate feeding strategy. In upper Cook 

Inlet, beluga whales concentrate 

offshore from several important salmon 

streams and appear to use a feeding 

strategy which takes advantage of the 

bathymetry in the area. The channels 

formed by the river mouths and the 

shallow waters act as a funnel for 

salmon as they move past waiting 

belugas. Dense concentrations of prey 

may be essential to beluga whale 

foraging. Hazard (1988) hypothesized 

that beluga whales were more successful 

feeding in rivers where prey were 

concentrated than in bays where prey 

were dispersed. Fried et al. (1979) noted 

that beluga whales in Bristol Bay fed at 

the mouth of the Snake River, where 

salmon runs are smaller than in other 

rivers in Bristol Bay. However, the 

mouth of the Snake River is shallower, 

and hence may concentrate prey. 

Research on beluga whales in Bristol 

Bay suggests these whales preferred 

certain streams for feeding based on the 

configuration of the stream channel 

(Frost et al., 1983). This study theorized 

beluga whales’ feeding efficiencies 

improve in relatively shallow channels 

where fish are confined or concentrated. 

Bathymetry and fish density may be 

more important than sheer numbers of 

fish in beluga whale feeding success. 

Although beluga whales do not always 

feed at the streams with the highest runs 

of fish, proximity to medium to high 

flow river systems is also an important 

descriptor in assigning importance to 

feeding habitats. Research has found 

beluga whale distribution in Cook Inlet 

is significantly greater near mudflats 

and medium and high flow 

accumulation rivers. (These waters were 

categorized in Goetz et al. (2007) using 

a digital elevation model, similar to 

drainage basins. A complete list of these 

waters may be found on our Web site 

http://www.fakr.noaa.gov/). Beluga 

whales are seldom observed near small 

flow tributaries. 

Cook Inlet beluga whales are preyed 

upon by killer whales, their only known 

natural predator. We have received 

reports of killer whales throughout Cook 

Inlet, and have responded to several 

instances of predation within Turnagain 

Arm, near Anchorage. 

Given the small population size of the 

Cook Inlet beluga whale, predation may 

have a significant effect on beluga whale 

recovery. In addition to directly 

reducing the beluga whale population, 

the presence of killer whales in Cook 

Inlet may also increase stranding events. 

We consider killer whale predation to 


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be a potentially significant threat to the 

conservation and recovery of these 

whales. Beluga whales may employ 

several defense strategies against killer 

whale predation. One strategy is to 

retreat to shallow estuaries too shallow 

for the larger killer whales. These areas 

might also provide acoustical 

camouflage due to their shallow depths, 

silt loads, and multiple channels. 

Because of their importance in the 

Cook Inlet beluga whales’ feeding 

strategy, as predator escape terrain, and 

in providing other habitat values, we 

consider ‘‘mudflats,’’ identified here as 

shallow and nearshore waters proximate 

to certain tributary streams, to be a 

physical feature essential to the 

conservation of the Cook Inlet beluga 

whale. 

For purposes of describing and 

locating this feature, and after 

consultation with the author of the 

model presented in Goetz et al. (2007), 

we determined spatial extent of this 

feature may best be described as being 

within the 30-foot (9.1-m) depth contour 

and within 5 miles 

(8.0 km) of medium and high flow 

accumulation rivers. These 

accumulation rivers are also waters with 

populations of anadromous fish that are 

important prey to Cook Inlet belugas. 

It appears Cook Inlet beluga whales 

have lower levels of contaminants 

stored in their bodies than other 

populations of belugas. Because these 

whales occupy the most populated and 

developed region of the state, they must 

compete with various anthropogenic 

stressors, including pollution. These 

whales often occur in dense 

aggregations within small nearshore 

areas, where they are predisposed to 

adverse effects of pollution. Beluga 

whales are apex predators, occupying 

the upper levels of the food chain. This 

predisposes them to illness and injury 

by biomagnification of certain 

pollutants. Another population of 

beluga whales found in the Gulf of St. 

Lawrence in Canada is characterized by 

very high body burdens of 

contaminants. There, high levels of 

PCBs, DDT, Mirex, mercury, lead, and 

indicators of hydrocarbon exposure 

have been detected in beluga whales. 

These substances are well-known for 

their toxic effects on animal life and for 

interfering with reproduction and 

resistance to disease. Many of these 

contaminants are transferred from 

mother to calf through nursing. 

Given present abundance levels, the 

impact of any additional mortalities to 

the extinction risk for this DPS, the 

sensitivity of beluga whales to certain 

pollutants, their trophic position and 

biomagnifications, the fact that large 

numbers of Cook Inlet beluga whales 

typically occupy very small habitats, 

and that their range includes the most 

populated and industrialized area of the 

state, we consider water quality to be an 

important aspect of their ecology, and 

essential to their conservation within 

both areas 1 and 2. 

Cook Inlet beluga whales do not 

occupy an extensive range, and are not 

known to undertake migrations. Within 

their occupied range, however, these 

whales move freely and continuously. 

The range of the Cook Inlet beluga 

whale is neither biologically nor 

physically uniform. It ranges between 

shallow mudflats, glacial fjords, deep 

waters with marine salinities, vegetated 

shallows of predominantly freshwaters, 

and areas of the upper Inlet in which 

heavy ice scour, extreme tidal 

fluctuations, high silt content, low 

temperatures, and high turbidity work 

to limit any intertidal or persistent 

nearshore organisms. Beluga whales 

have adapted here by utilizing certain 

areas over time and space to meet their 

ecological needs. While much remains 

to be understood of their ecology and 

basic life history, it is apparent a large 

part of their movement and distribution 

is associated with feeding. Feeding 

habitat occurs near the mouths of 

anadromous fish streams, coinciding 

with the spawning runs of returning 

adult salmon. These habitats may 

change quickly as each species of 

salmon, and often each particular river, 

is characterized as having its individual 

run timing. Calving habitat is poorly 

described, but may depend on such 

factors as temperatures, depths, and 

salinities. Predator avoidance may be a 

very important habitat attribute, and is 

likely to exist only in shallows within 

Turnagain and Knik Arms of the upper 

Inlet. Causeways, dams, and nonphysical effects (e.g., noise) can interfere 

with whale movements. It is essential to 

the conservation of Cook Inlet beluga 

whales that they have unrestricted 

access within and between the critical 

habitat areas. 

Beluga whales are known to be among 

the most adept users of sound of all 

marine mammals, using sound rather 

than sight for many important functions, 

especially in the highly turbid waters of 

upper Cook Inlet. Beluga whales use 

sound to communicate, locate prey, and 

navigate, and may make different 

sounds in response to different stimuli. 

Beluga whales produce high frequency 

sounds which they use as a type of 

sonar for finding and pursuing prey, and 

likely for navigating through ice-laden 

waters. In Cook Inlet, beluga whales 

must compete acoustically with natural 

and anthropogenic sounds. Man-made 

sources of noise in Cook Inlet include 

large and small vessels, aircraft, oil and 

gas drilling, marine seismic surveys, 

pile driving, and dredging. 

Anthropogenic noise above ambient 

levels may cause behavioral reactions in 

whales (harassment) or mask 

communication between these animals. 

The effects of harassment may also 

include abandonment of habitat. At 

louder levels, noise may result in 

temporary or permanent damage to the 

whales’ hearing. Empirical data exist on 

the reaction of beluga whales to in-water 

noise (harassment and injury 

thresholds) but are lacking regarding 

levels that might elicit more subtle 

reactions such as avoiding certain areas. 

Noise capable of killing or injuring 

beluga whales, or that might cause the 

abandonment of important habitats, 

would be expected to have 

consequences to this DPS in terms of 

survival and recovery. We consider 

‘‘quiet’’ areas in which noise levels do 

not interfere with important life history 

functions and behavior of these whales 

to be a necessity. Therefore, we consider 

the assurance of in-water noise levels 

that do not cause beluga whales to 

abandon or fail to access important 

critical habitat areas, such as foraging 

sites at river mouths, to be an essential 

feature. This feature is found in both 

areas 1 and 2. 

Based on the best scientific data 

available of the ecology and natural 

history of Cook Inlet beluga whales and 

their conservation needs, we have 

determined the following physical or 

biological features are essential to the 

conservation of this species: 

(1) Intertidal and subtidal waters of 

Cook Inlet with depths less than 30 feet 

(MLLW)(9.1 m) and within 5 miles (8 

km) of high and medium flow 

anadromous fish streams. 

(2) Primary prey species consisting of 

four species of Pacific salmon (Chinook, 

sockeye, chum, and coho), Pacific 

eulachon, Pacific cod, walleye pollock, 

saffron cod, and yellowfin sole. 

(3) Waters free of toxins or other 

agents of a type and amount harmful to 

Cook Inlet beluga whales. 

(4) Unrestricted passage within or 

between the critical habitat areas. 

(5) Waters with in-water noise below 

levels resulting in the abandonment of 

critical habitat areas by Cook Inlet 

beluga whales. 

One or more of these features is found 

or identified within the designated 

critical habitat. 

Special Management Considerations or 

Protection 

An occupied area may be designated 

as critical habitat only if it contains 


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physical and biological features that 

‘‘may require special management 

considerations or protection.’’ It is 

important to note the term ‘‘may require 

special management considerations or 

protection’’ refers to the physical or 

biological features, rather than the area 

proposed as critical habitat. Neither the 

ESA nor NMFS regulations define the 

‘‘may require’’ standard. We interpret it 

to mean that a feature may presently or 

in the future require special 

management considerations or 

protection. 50 CFR 424.02(j) defines 

‘‘special management considerations or 

protection’’ to mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ We considered whether 

the PCEs indentified for Cook Inlet 

beluga whales may require special 

management considerations or 

protection. In our initial determination, 

we considered whether there is: 

(a) Presently a negative impact on the 

feature(s); 

(b) A possible negative impact on the 

feature in the future; 

(c) Presently a need to manage the 

feature(s); or 

(d) A possible need to manage the 

feature(s) in the future. 

Intertidal and subtidal waters of Cook 

Inlet with depths less than 30 feet 

(MLLW)(9.1 m) and within 5 miles (8 

km) of high and medium flow 

anadromous fish streams support 

important beluga feeding habitat 

because of their shallow depths and 

bottom structure which act to 

concentrate prey and aid in feeding 

efficiency by belugas. The physical 

attributes of this PCE could be modified 

or lost through filling, dredging, channel 

re-alignment, dikes, and other 

structures. Within navigable waters, the 

ACOE has jurisdiction over these 

actions and structures and administers a 

permit program under the Rivers and 

Harbors Act and CWA. In establishing 

these laws, it was the intent of the U.S. 

Congress to regulate and manage these 

activities. The CWA was created to 

restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters. Section 404 of the CWA 

regulates the discharge of fill materials 

into these waters, noting concerns with 

regard to water supplies, shellfish beds, 

fishery areas, and spawning and 

breeding areas. The intent of Congress to 

protect these features indicates that they 

may require special management 

considerations or protection. Further, 

through the ESA section 7 consultation 

process, we may identify reasonable and 

prudent measures to minimize impacts 

to these features. 

Four species of Pacific salmon 

(Chinook, sockeye, chum, and coho), 

Pacific eulachon, Pacific cod, walleye 

pollock, saffron cod, and yellowfin sole 

constitute the most important food 

sources for Cook Inlet beluga whales as 

identified through research and as held 

by the traditional wisdom and 

knowledge of Alaska Natives who have 

participated in the subsistence hunting 

of these whales. Stomach analysis of 

Cook Inlet beluga whales has found 

these species constitute the majority of 

consumed prey by weight during 

summer/ice free periods. All of these 

species are targeted by commercial 

fisheries, and some are prized by sport 

fishermen. The recognition of harm due 

to overexploitation and the need for 

continued management underlie the 

efforts of the state and Federal 

government to conserve these species. 

The fisheries in State waters of Cook 

Inlet are managed under various 

management plans. In addition to 

commercial fisheries, State plans 

manage subsistence, sport, guided sport, 

and personal use fisheries. Federal 

fisheries management plans provide for 

sustainable fishing in Federal waters of 

lower Cook Inlet. These regulatory 

efforts indicate that these four fish 

species may require special 

management considerations or 

protection. 

Cook Inlet is the most populated and 

industrialized region of the state. Its 

waters receive various pollutant loads 

through activities that include urban 

runoff, oil and gas activities (e.g., 

discharges of drilling muds and 

cuttings, production waters, treated 

sewage effluent discharge, deck 

drainage), municipal sewage treatment 

effluents, oil and other chemical spills, 

fish processing, and other regulated 

discharges. The EPA regulates many of 

these pollutants, and may authorize 

certain discharges under their National 

Pollution Discharge Elimination System 

(section 402 of the CWA). Management 

of pollutants and toxins is necessary to 

protect and maintain the biological, 

ecological, and aesthetic integrity of 

Cook Inlet’s waters. Accordingly, 

ensuring the absence of toxins or other 

agents of a type or amount harmful to 

beluga whales may require special 

management considerations or 

protection. 

Certain actions may have the effect of 

reducing or preventing beluga whales 

from freely accessing the habitat area 

necessary for their survival. Dams and 

causeways may create physical barriers, 

while noise and other disturbance or 

harassment might cause a behavior 

barrier, whereby the whales reach these 

areas with difficulty or, in a worst case, 

abandon the affected habitat areas 

altogether due to such stressors. Most 

in-water structures would be managed 

under several on-going Federal 

regulatory programs (e.g., CWA). 

Regulation for behavior barriers is less 

clear. Any significant behavioral 

reaction with the potential to injure 

whales may be prohibited under the 

provisions of the ESA and MMPA. 

However, it is unclear whether these 

two acts could manage this proposed 

feature in the absence of designation of 

critical habitat and recognition of this 

PCE. The unrestricted passage within or 

between critical habitat areas may 

require special management 

considerations or protection. 

We have discussed the importance of 

sound to beluga whales, and concern for 

man-made noise in their environment. 

There exists a large body of information 

on the effects of noise on beluga whales. 

Research on captive animals has found 

noise levels that result in temporary 

threshold shifts in beluga whale 

hearing. Based on this research and 

empirical data from beluga whales in 

the wild, we have established in-water 

noise levels that define when these 

animals are harassed or injured. We 

consider the threshold for acoustic 

harassment to be 160 dB re: 1 μPa for 

impulsive sounds (e.g., pile driving) and 

120 dB re: 1 μPa for continuous noise. 

No specific mechanisms presently 

exist to regulate in-water noise, other 

than secondarily through an associated 

authorization. Even then, there is some 

question whether the authorizing state, 

local, or Federal agency has the 

authority to regulate noise. Because of 

the importance of the ability to use 

sound to Cook Inlet beluga whales, the 

in-water noise essential feature is 

clearly one that may require special 

management considerations or 

protection. 

While these PCEs are currently 

subject to the aforementioned regulatory 

management, there remain additional 

and unmet management needs owing to 

the fact that none of these management 

regimes is directed at the conservation 

and recovery needs of Cook Inlet beluga 

whales. As a result, through the ESA 

section 7 consultation process, we may 

identify reasonable and prudent 

measures designed to minimize impacts 

to the PCEs. This supports the finding 

that each of the identified PCEs ‘‘may 

require special management 

considerations or protection.’’ 

Specific Areas Within the Geographical 

Area Occupied by the Species 

We previously identified the range of 

Cook Inlet belugas as of the time of 

listing (74 FR 63080; December 2, 2009) 


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to be waters of Cook Inlet north of a line 

from Cape Douglas to Cape Elizabeth. 

We reviewed all available information 

on Cook Inlet beluga whale distribution, 

habitat use and requirements, and 

features essential to the conservation of 

these whales. Within the occupied 

geographical area we identified two 

specific areas that contain essential 

physical or biological features (Areas 1 

and 2). 

Area 1: Area 1 encompasses 1,909 

square kilometers (738 sq. mi.) of Cook 

Inlet northeast of a line from the mouth 

of Threemile Creek to Point Possession. 

This area is bounded by the 

Municipality of Anchorage, the 

Matanuska-Susitna Borough, and the 

Kenai Peninsula borough. The area 

contains shallow tidal flats and river 

mouths or estuarine areas, and it is 

important as foraging and calving 

habitats. Mudflats and shallow areas 

adjacent to medium and high flow 

accumulation streams may also provide 

for other biological needs, such as 

molting or escape from predators 

(Shelden et al., 2003). Area 1 also has 

the highest concentrations of beluga 

whales from spring through fall as well 

as the greatest potential for adverse 

impact from anthropogenic threats. 

Many rivers in Area 1 habitat have 

large eulachon and salmon runs. Two 

such rivers in Turnagain Arm, Twentymile River, and Placer River are visited 

by beluga whales in early spring, 

indicating the importance of eulachon 

runs for beluga whale feeding. Beluga 

whale use of upper Turnagain Arm 

decreases in the summer and then 

increases again in August through the 

fall, coinciding with the coho salmon 

run. Early spring (March to May) and 

fall (August to October) use of Knik Arm 

is confirmed by studies by Funk et al. 

(2005). Intensive summer feeding by 

beluga whales occurs in the Susitna 

delta area, Knik Arm, and Turnagain 

Arm. 

Whales regularly move into and out of 

Knik Arm and the Susitna delta (Hobbs 

et al., 2000; Rugh et al., 2004). The 

combination of satellite telemetry data 

and long-term aerial survey data 

demonstrate beluga whales use Knik 

Arm 12 months of the year, often 

entering and leaving the Arm on a daily 

basis (Hobbs et al., 2005; Rugh et al., 

2005, 2007). These surveys demonstrate 

intensive use of the Susitna delta area 

(from the Little Susitna River to Beluga 

River) and Chickaloon Bay (Turnagain 

Arm), with frequent large scale 

movements between the delta area, Knik 

Arm, and Turnagain Arm. During 

annual aerial surveys conducted by the 

National Marine Mammal Lab in June 

and July, up to 61 percent of the whales 

sighted in Cook Inlet were in Knik Arm 

(Rugh et al., 2000, 2005). The 

Chickaloon Bay area also appears to be 

used by beluga whales throughout the 

year. 

Beluga whales are particularly 

vulnerable to impacts in Area 1 due to 

their high seasonal densities and the 

biological importance of the area. 

Because of their intensive use of this 

area (e.g., foraging, nursery, predator 

avoidance), activities that restrict or 

deter use of or access to Area 1 habitat 

could reduce beluga whale calving 

success, impair their ability to secure 

prey, and increase their susceptibility to 

predation by killer whales. Activities 

that reduce anadromous fish runs could 

also negatively impact beluga whale 

foraging success, reducing their fitness, 

survival, and recovery. Furthermore, the 

tendency for beluga whales to occur in 

high concentrations in Area 1 habitat 

predisposes them to harm from such 

events as oil spills. 

Area 2: Area 2 consists of 5,891 

square kilometers (2,275 square miles) 

of less concentrated spring and summer 

beluga whale use, but known fall and 

winter use areas. It is located south of 

Area 1, and includes nearshore areas 

along the west side of the Inlet and 

Kachemak Bay on the east side of the 

lower inlet. 

Area 2 is largely based on dispersed 

fall and winter feeding and transit areas 

in waters where whales typically occur 

in smaller densities or deeper waters. It 

includes both near and offshore areas of 

the mid and upper Inlet, and nearshore 

areas of the lower Inlet. Due to the role 

of this area as probable fall feeding 

areas, Area 2 includes Tuxedni, 

Chinitna, and Kamishak Bays on the 

west coast and a portion of Kachemak 

Bay on the east coast. Winter aerial 

surveys (Hansen, 1999) sighted belugas 

from the forelands south, with many 

observations around Kalgin Island. 

Based on tracking data, Hobbs et al. 

(2005) document important winter 

habitat concentration areas reaching 

south of Kalgin Island. 

Beluga whales have been regularly 

sighted at the Homer Spit and the head 

of Kachemak Bay, appearing during 

spring and fall of some years in groups 

of 10 to 20 individuals (Speckman and 

Piatt, 2000). Beluga whales have also 

been common at Fox River Flats, Muddy 

Bay, and the northwest shore of 

Kachemak Bay (NMFS unpubl. data), 

sometimes remaining in Kachemak Bay 

all summer (Huntington, 2000). 

Deeper mid Inlet habitats may also be 

important to the winter survival and 

recovery of Cook Inlet beluga whales. 

Unoccupied Areas 

Section 3(5)(A)(ii) of the ESA defines 

critical habitat to include specific areas 

outside the geographical area occupied 

by the species at the time of listing only 

if the Secretary determines them to be 

essential for the conservation of the 

species. Section 3(3) of the ESA defines 

conservation as ‘‘the use of all methods 

and procedures which are necessary to 

bring any endangered species or 

threatened species to the point at which 

the measures provided pursuant to this 

Act are no longer necessary.’’ NMFS’ 

ESA regulations at 50 CFR 424.12(e) 

state that the agency ‘‘shall designate as 

critical habitat areas outside the 

geographical area presently occupied by 

a species only when a designation 

limited to its present range would be 

inadequate to ensure the conservation of 

the species.’’ We are not including 

unoccupied areas because there is no 

information available indicating that 

any such area may be essential to the 

conservation of the species. 

Activities That May Be Affected 

Section 4(b)(8) of the ESA requires 

that we describe briefly and evaluate, in 

any proposed or final regulation to 

designate critical habitat, those 

activities that may destroy or adversely 

modify such habitat, or that may be 

affected by such designation. A wide 

variety of activities may affect critical 

habitat and, when carried out, funded, 

or authorized by a Federal agency, 

require consultation under section 7 of 

the ESA. These same activities may also 

be affected by the designation. Such 

activities include: Coastal development; 

pollutant discharge; navigational 

projects (dredging); bridge construction; 

marine tidal generation projects; marine 

geophysical research; oil and gas 

exploration, development, and 

production; DOD activities; and 

hydroelectric development. We do not 

propose to include in critical habitat 

any manmade structures and the land 

on which they rest within the described 

boundaries that were in existence at the 

time of designation. While these areas 

would not be directly affected by 

designation, they may be affected if a 

Federal action associated with the area/ 

structure (e.g., a discharge permit from 

the EPA) might have indirect impacts to 

critical habitat. 

We assessed those actions that may 

destroy or adversely modify this critical 

habitat by considering recent agency 

guidance on conducting adverse 

modification analyses. Here we apply 

the statutory provisions of the ESA, 

including those in section 3 that define 

‘‘critical habitat’’ and ‘‘conservation,’’ to 


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determine whether a proposed action 

might result in the destruction or 

adverse modification of critical habitat. 

We have not relied on the regulatory 

definition of ‘‘destruction or adverse 

modification’’ at 50 CFR 402.02 because 

that definition has been struck down by 

courts. See Gifford Pinchot Task Force 

v. U.S. Fish & Wildlife Serv., 378 F.3d 

1059 (9th Cir. 2004). As discussed in 

our economic report on this designation, 

each action is reviewed on a case-bycase basis. Without knowledge of, or 

ability to predict, the specifics of a 

particular action or activity, it is not 

possible to list all those that may 

adversely modify critical habitat. 

Depending on the specific details of any 

action, any of the aforementioned 

activities that may affect critical habitat 

might also result in its adverse 

modification. 

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

The ESA was amended by the 

National Defense Authorization Act for 

Fiscal Year 2004 (Pub. L. 108–136) to 

address the designation of military 

lands as critical habitat. ESA section 

4(a)(3)(B)(i) states: ‘‘The Secretary shall 

not designate as critical habitat any 

lands or other geographical areas owned 

or controlled by the DOD, or designated 

for its use, that are subject to an 

integrated natural resources 

management plan prepared under 

section 670a of this title [section 101 of 

the Sikes Act], if the Secretary 

determines in writing that such plan 

provides a benefit to the species for 

which critical habitat is proposed for 

designation.’’ 

The Eagle River Flats Impact Area 

(ERFIA), a military live-fire practice 

range on Joint Base ElmendorfRichardson, near Anchorage, provides 

training in artillery such as mortars. 

While the boundaries for the ERFIA (i.e., 

the MHHW line) do not overlap with the 

proposed critical habitat, the firing 

range includes the lower reaches of 

Eagle River which could have been 

included in the designation (similar to 

the Susitna and Little Susitna Rivers). 

Research by the DOD has documented 

beluga whale use, including feeding 

behavior, within this portion of Eagle 

River. Having consulted with the U.S. 

Army Garrison, Alaska, and reviewed its 

2007–2011 INRMP, we have determined 

and set forth in writing here that the 

plan provides benefit to the Cook Inlet 

beluga whale. The INRMP establishes 

coordination and consultation 

mechanisms with NMFS on issues 

which may affect Cook Inlet beluga 

whales, and provides specific means to 

reduce potential harm due to military 

actions on the garrison. Some of these 

benefits include restrictions on access to 

habitat areas utilized by beluga whales, 

mitigation measures to reduce potential 

harassment or injury to beluga whales 

from activity at the ERFIA, and 

implementation of research programs 

regarding the habitat use of Cook Inlet 

belugas in and adjacent to DOD property 

at Joint Base Elmendorf-Richardson, 

Alaska. For the foregoing reasons, we 

have determined pursuant to section 

4(a)(3)(B)(i) that the beluga habitat areas 

occurring here (specifically; within the 

ERFIA) do not qualify as critical habitat. 

In response to the ANPR, we received 

a request from the U.S. Air Force to 

exempt other portions of Joint Base 

Elmendorf-Richardson from the 

designated critical habitat. The Air 

Force sought this exemption based on 

the existence of an INRMP, consistent 

with Public Law 108–136. 

The landward boundary of critical 

habitat (MHHW) would overlay the 

seaward military boundaries for Joint 

Base Elmendorf-Richardson, which have 

been established as MHW. Because the 

areas between MHHW and MHW are 

predominately unvegetated mudflats at 

relatively high elevations (or shallow 

depths) rarely used by beluga whales, 

and because all lands of Joint Base 

Elmendorf-Richardson are administered 

under an INRMP which we found to 

provide benefit to Cook Inlet beluga 

whales, these areas were also 

determined to be ineligible for 

designation as critical habitat. 

ESA Section 4(b)(2) Analysis 

Section 4(b)(2) of the ESA states that 

the Secretary must designate and revise 

critical habitat on the basis of the best 

scientific data available after taking into 

consideration the economic impact, the 

impact on national security, and other 

relevant impacts of specifying any 

particular area as critical habitat. The 

Secretary of Commerce may exclude an 

area from critical habitat if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as critical habitat, 

unless he determines that failure to 

designate that area would result in the 

extinction of the species. In making that 

determination, the legislative history is 

clear that the Secretary has broad 

discretion regarding which factors to 

use and how much weight to give any 

factor. Because the authority to exclude 

is discretionary, exclusion is not 

required for any area. The section 

4(b)(2) considerations are more fully 

described in the proposed rule. In the 

following sections, we address the 

issues relevant to our determinations 

under this section. 

Economic Analysis 

We conducted an analysis of the 

economic impacts of the proposed 

designation of critical habitat for the 

Cook Inlet beluga whale, under the 

mandates of the ESA, Executive Order 

12866, Regulatory Flexibility Act, and 

other applicable law. Each prescribes 

the analytical frame-of-reference, 

methodology, interpretive context, and 

threshold criteria that must be adhered 

to. These include, but are not limited to, 

a national accounting stance, use of 

traditional cost/benefit analytical 

techniques, emphasis on changes in 

domestic surplus measures, whether 

and how impacts accrue to, and 

distribute across, specific populations of 

concern (e.g., small entities, minority 

communities, tribal authorities). The 

economic analyses were further 

required to (and, to the fullest extent 

practicable, do) employ the best 

scientific data and commercial 

information available. The analyses 

underwent a series of systematic 

technical reviews by agency scientists, 

attorneys, and administrators, resulting 

in significant revisions and refinements, 

both prior to, and after formal public 

presentation and comment periods. The 

draft analysis report was made available 

for public review and comment on our 

regional Web site. Substantive 

comments and information received on 

the analysis are summarized above and 

are incorporated into the final 4(b)(2) 

analysis, as appropriate. Taking into 

account all new and relevant 

information, we have completed a final 

economic analysis. That analysis is also 

available on our Web site (see 

ADDRESSES above). NMFS considered 

the conservation benefits to the Cook 

Inlet beluga whale of designating two 

areas; the economic benefits of 

excluding particular areas within the 

two areas; and the national security 

benefits of excluding particular military 

sites and associated assets owned, 

heavily utilized, highly depended upon, 

or controlled by the DOD; and other 

relevant impacts or benefits, such as 

impacts to tribal interests, raised 

through the public comment process. 

Benefits of Designation 

The primary benefit of designating 

critical habitat for any endangered 

species is that, upon designation, 

section 7 of the ESA requires all Federal 

agencies to ensure actions they 

authorize, fund, or undertake are not 

likely to destroy or adversely modify 

habitat critical for the conservation and 

recovery of the listed species. This is in 

addition to the ESA’s requirement that 

all Federal agencies ensure their actions 


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are not likely to jeopardize the species’ 

continued existence. Another benefit of 

designation is that it provides notice of 

areas, PCEs, and features important to 

species conservation, and information 

about the types of activities that may 

reduce the conservation value of the 

habitat. Such notice will focus future 

consultations on key habitat attributes 

and avoid unnecessary attention to 

other, non-essential habitat features. 

Critical habitat designation may also 

trigger complementary protections (i.e., 

benefits) under state or local 

regulations. In addition to the direct 

benefits of critical habitat designation 

accruing to Cook Inlet beluga whales, 

there are indirect benefits. These 

benefits may be economic in nature 

(whether market or non-market, 

consumptive, non-consumptive, or 

passive), educational, cultural, and 

sociological, or they may be expressed 

through beneficial changes in the 

ecological functioning and service flows 

of Cook Inlet, which themselves yield 

ancillary welfare gains (e.g., improved 

quality of life) to the region’s human 

population. 

All these benefits are also relevant to 

the evaluation of the ‘‘net benefit to the 

Nation’’ attributable to critical habitat 

designation for the Cook Inlet beluga 

whale. For example, Cook Inlet is one of 

the ‘‘premier tourist destinations’’ in 

Alaska, and local economies throughout 

the inlet and surrounding region 

provide support services to, and benefit 

directly from, tourism. Beluga whales 

are widely identified with Cook Inlet 

and aggressively promoted as a ‘‘unique’’ 

and high value component of the Cook 

Inlet tourism experience. In addition, 

many local residents express strong 

affinity for the beluga whales and place 

significant ‘‘value’’ on the opportunity to 

encounter this whale in the wild. 

Federal, state, regional and local 

governments, Alaska Native peoples, 

civic groups, non-governmental 

organizations, and private citizens in 

the region have invested considerable 

money, time, and effort to promote, 

educate, inform, and advocate for the 

Cook Inlet beluga whale population 

(e.g., roadside visitor’s centers and 

interpretive sights focusing public 

attention on, and enjoyment of, the 

resident beluga whale population). It 

follows that conservation and recovery 

of the Cook Inlet beluga whale 

population, resulting, in part, from 

designation of its critical habitat, would 

enhance the ‘‘value’’ tourists (and other 

travelers) to the inlet receive from 

visiting the region, and simultaneously 

benefit the tourism, hospitality, and 

affiliated services sectors. 

Residents of Cook Inlet communities 

and surrounding areas who value the 

beluga whale would also be expected to 

experience a welfare gain, as 

conservation of the whale’s critical 

habitat results in an enhanced beluga 

whale population, in turn, making 

opportunities for sightings and 

observation more probable and frequent. 

With sufficient recovery, subsistence 

users could benefit from the restoration 

of their traditional uses of Cook Inlet 

beluga whales. Another benefit of 

designation could be the increased 

abundance and sustained viability of 

Cook Inlet salmon populations, if the 

environmental and ecological functions 

of the inlet upon which they depend are 

sustained or enhanced by beluga whale 

critical habitat designation. 

Cook Inlet salmon runs support a 

myriad of uses and users, including: 

commercial fisheries and associated 

support sectors; recreational anglers, 

guides, lodges and lodging, 

transportation, support and affiliated 

businesses; subsistence communities; 

and personal use fishermen. Salmon 

constitute a critical resource for nonhuman users, as well. Four of the five 

Pacific salmon species native to the 

region are listed as PCEs of Cook Inlet 

beluga whale critical habitat. At various 

life stages, salmon support many other 

marine and terrestrial organisms (i.e., 

mammals, birds, and fishes) as prey 

species. Ancillary benefits from Cook 

Inlet beluga whale critical habitat 

designation may accrue through 

protection and enhancement of vital 

components and characteristics of the 

critical habitat relied upon and 

exploited by a vast array of species. 

It is not presently feasible to 

monetize, or even quantify, each and 

every component part of the 

comprehensive benefit accruing from 

designation of critical habitat for the 

Cook Inlet beluga whale. We augmented 

the quantitative measurements that have 

been presented with qualitative and 

descriptive assessment techniques, as 

provided for in Executive Order 12866 

and OMB Circular A–4. 

With respect to the qualitative 

elements of this impact analysis, we 

have systematically assessed the 

expected benefit of designating the two 

critical habitat areas based upon their 

individual physical, ecological, and 

biological features and functions. Each 

area was evaluated on the basis of 

frequency, duration, seasonality, and 

behavioral characteristics (e.g., foraging, 

predatory avoidance, breeding, calving) 

of use by the beluga whales. These were 

(to the extent practicable) correlated 

with site-specific human activity 

mappings in each area that, through an 

assumed need for Federal authorization, 

permits, or funding, might require one 

or more future ESA section 7 

consultations stemming from this 

critical habitat designation. Based upon 

available information pertaining to 

specific structural design elements, 

physical attributes, construction 

materials and techniques, development 

scheduling and duration, etc., for each 

such identified federally authorized 

activity, the likelihood and nature of 

any substantial physical, design, or 

schedule modification (or other 

accommodation) of an anticipated 

Federally authorized activity were 

analyzed. 

The benefit of a comprehensive 

designation also depends on the 

inherent conservation value arising from 

the complementary contribution each 

area makes to the whole. The two 

identified critical habitat areas for the 

Cook Inlet beluga whales are unique and 

irreplaceable. It is difficult to isolate the 

value contributed by one area, as each 

of the two areas supports a distinct and 

crucial aspect of the Cook Inlet beluga 

whales’ life history. The designation of 

each particular area (i.e., Area 1 and 

Area 2) is essential to the conservation 

function of the whole. On the collective 

basis of these assessments, evaluations, 

and analyses, we conclude that there is 

substantial and compelling evidence 

that the aggregate (i.e., monetized, 

quantifiable, and qualitative) 

conservation benefits of designating the 

two particular areas identified as critical 

habitat for Cook Inlet beluga whales is 

high. By contrast, the expected costs, 

including those we could monetize, as 

well as those that can only be 

qualitatively characterized at this time, 

such as unspecified design 

modifications to potential projects, are 

relatively modest in comparison. Based 

on past experience and our professional 

judgment, we expect design 

modifications attributable solely to the 

designation of critical habitat will occur 

rarely. In the event that such a 

modification was to occur, it could 

require substantial costs, but it is also 

possible that the modification would 

decrease overall project costs. There is 

no information available at this time to 

provide any reasonable estimate of costs 

for the rare and speculative project 

modifications attributable solely to the 

designation of critical habitat. 

Economic Benefits of Exclusion 

The economic impact analysis and 

preparatory 4(b)(2) assessment, prepared 

in connection with the designation of 

critical habitat, describe: the actions and 

activities within Cook Inlet that we 

estimate have some potential to be 


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impacted by the designation; the 

potential nature of modifications that 

might be required to avoid adversely 

modifying or destroying critical habitat; 

and the expected economic impacts that 

may accompany such modifications. 

Consideration of Benefits of Exclusion 

Versus Benefits of Designation of 

Particular Areas 

After directing NMFS to consider the 

economic impact, the impact to national 

security, and other relevant impacts of 

specifying a particular area as critical 

habitat, section 4(b)(2) of the ESA 

provides that the Secretary may exclude 

any area from critical habitat if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless such exclusion 

will result in the extinction of the 

species. The benefit to the species of 

designation depends upon the inherent 

conservation value of the area, the 

seriousness of the threats to that 

conservation value, and the extent to 

which an ESA section 7 consultation or 

other aspects of designation will 

ameliorate those threats. If a particular 

action or activity, which is authorized, 

funded, or carried out by the Federal 

Government, may destroy or adverse 

modify critical habitat (as distinct from 

the ‘‘jeopardy’’ prohibition under section 

7), one may isolate and measure the 

incremental benefit of designation, 

beyond those protections also provided 

by virtue of the listing. 

We have endeavored to identify the 

categories of actions and activities 

within each of the two proposed 

designated areas that may have the 

potential to destroy or adversely modify 

critical habitat. Based upon these 

categorical lists, the analysis has, to the 

extent possible in light of the best 

scientific data and commercial 

information available, identified and 

analyzed project-specific impacts 

attributable to the proposed designation. 

With a few notable exceptions identified 

in the analyses, detailed engineering 

design, construction methods, materials, 

and schedules, and financing/ 

investment/cost information are not 

readily available on a project-by-project 

basis, particularly for plans that are far 

off into the future. Notwithstanding 

these empirical data limitations, we 

have systematically and objectively 

evaluated the likely economic impact to 

future development and use uniquely 

attributable to the beluga whale critical 

habitat designation in Cook Inlet. 

We have determined that designation 

of critical habitat will enhance the 

nation’s welfare by augmenting the 

Federal Government’s ability to 

conserve this endangered species and 

ensuring Federal actions do not destroy 

or adversely modify habitat critical to 

that end. This outcome would be 

facilitated through ESA section 7 

consultations and through ongoing 

public involvement, outreach, 

information, and education. 

The benefits of exclusion of any 

particular area, as contemplated under 

section 4(b)(2), involve many of the 

same considerations identified in 

assessing the benefits of designation. 

Among these would be the likelihood or 

expectation of a Federal action 

occurring within the particular area 

under scrutiny. Should such an action 

or activity be identified, it could trigger 

one or more of the ESA section 7 

consultation requirements. If any such 

consultation resulted in the 

determination that the action would 

destroy or adversely modify critical 

habitat (or jeopardize the continued 

existence of the species), we would 

attempt to identify reasonable and 

prudent alternatives that allow the 

project to go forward but avoid adverse 

modification/jeopardy by changes to 

design, construction practices, or 

scheduling. For the benefit-ofdesignation side of the equation, it is the 

incremental cost of designation incurred 

(or, if exclusion of any particular area is 

justified, the incremental cost avoided), 

uniquely attributable to designation, 

that should, to the extent practicable, be 

evaluated. By disentangling the sources 

of section 7 consultation effects, we can 

more appropriately weigh those 

incremental costs of designation, 

distinct from the cost associated with 

listing and the jeopardy prohibition. 

In balancing the potential costs of 

designation, we considered the nature of 

the threats to critical habitat and the 

relevance to these threats of ESA section 

7′s requirement that Federal actions 

avoid causing the destruction or adverse 

modification of critical habitat. Because 

in the present case the condition of 

adverse modification is likely to be 

associated with certain work along the 

Cook Inlet shoreline (and in-water 

construction and development), and 

because some modifications to design, 

construction practices, or scheduling of 

such projects are possible as a result of 

consultation, we gave these costs of 

designation moderately high weight. 

Such construction and development has 

the potential to alter several of the 

identified PCEs of beluga whale habitat, 

including, but not limited to, in-water 

noise levels, access to passage corridors, 

and access to shallow areas for feeding, 

breeding, or predator escape use. 

Further, we recognize that the adverse 

modification/destruction of critical 

habitat criterion bears a strong 

relationship to water quality 

management (e.g., municipal waste 

water discharge, oil spills, gas and oil 

drilling discharges, dredge spoils 

disposal, bilge and ballast discharges), 

but we lack sufficient point-source and 

project-specific data to quantitatively 

estimate any potential attributable 

economic impact. Nonetheless, we 

recognize their significance and 

qualitatively assigned these costs of 

critical habitat designation a moderate 

weight. 

However, our analysis found few 

cases where these costs were not coextensive. We evaluated these 

incremental costs (i.e., costs beyond 

those associated with the jeopardy 

standard), and concluded that the 

economic benefits of excluding any 

particular area do not outweigh the 

conservation benefits of including each 

particular area within the critical habitat 

designation, given the endangered status 

of the whales, the uniqueness and 

irreplaceable attributes of the habitat, 

and the fact that designation will 

enhance the ability of an ESA section 7 

consultation to facilitate cost effective 

and successful protection of this critical 

habitat. 

Exclusion for National Security 

Reasons 

We received a request from the Port 

of Anchorage to exclude both the Port 

of Anchorage and Port MacKenzie from 

critical habitat designation based on 

national security considerations. While 

the DOD itself did not make a request 

to exclude the POA, DOD has 

designated the POA as one of nineteen 

Strategic Ports, which forms the basis 

for our exclusion. NMFS conferred with 

the Alaska Command after the request 

from the POA for the exclusion and the 

Alaska Command confirmed that the 

POA is a strategic port that could be 

excluded from critical habitat 

designation. Both the Port of Anchorage 

and Port MacKenzie are within the 

boundaries we proposed for critical 

habitat designation and include docking 

facilities, nearshore areas and structures 

such as docks, piers, and wharfs, and 

offshore navigational channels, turning 

basins, anchorage areas, and areas with 

security restrictions enforced by the 

U.S. Coast Guard (USCG). 

In making its request for an exclusion, 

the POA asserts that it is strategically 

important for military readiness. The 

DOD did not request the exclusion of 

the POA, but confirmed, through the 

Alaskan Command, that the U.S. Army’s 

worldwide deployments from Alaska go 

through the POA, and that since 2005, 

over 18,000 pieces of military-related 


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cargo-combat vehicles, weaponry, and 

support equipment have passed through 

the POA on their way to and from the 

Middle East and training grounds in the 

Lower 48 and the Western Pacific. 

In addition, the POA is one of 

nineteen ports designated by the DOD as 

a Strategic Port. There are four military 

bases located in Alaska (Joint Base 

Elmendorf-Richardson, Eielson AFB, Ft. 

Wainwright, and Ft. Greely), and the 

POA supports the U.S. military in 

Alaska as its primary source of daily 

operating supplies. Over 33 million 

gallons of aviation fuel for the military 

are offloaded annually at this port. 

Thus the U.S. military’s ability to 

deploy to combat theaters around the 

globe is heavily dependent on sealift 

through the POA. Particularly in times 

of active warfare, it is critical that there 

be no unnecessary delays in deployment 

or reductions in military readiness. In 

short, the POA plays a vitally important 

role in ensuring the readiness of 

military operations in Alaska. 

We have conferred with the Alaskan 

Command and conclude that the 

benefits of exclusion outweigh the 

benefits of inclusion. The principal 

benefit from excluding the POA is 

avoiding the risk that the designation 

might impede the POA’s operations or 

otherwise result in a reduction in 

military readiness. The costs of 

including the area as critical habitat 

generally include the costs (including 

delays) associated with ESA section 7 

consultation under the destruction/ 

adverse modification of critical habitat 

standard, any change in the POA’s 

activities or functions necessary to 

avoid adverse modification or 

destruction of critical habitat, and any 

concomitant reduction in military 

readiness. Given that the DOD has 

stated the POA is critical to military 

operations in and deploying out of the 

State of Alaska, any delays in military 

movements through the POA could 

reduce the ability of the military to 

ensure national security. 

By contrast, we believe the benefits to 

the conservation of the Cook Inlet 

beluga whale from designating the 

particular area subject to the exclusion 

as critical habitat are small. Even with 

the exclusion, Federal agencies would 

still have to consult to ensure that their 

activities do not jeopardize the 

continued existence of the Cook Inlet 

beluga whale, which would include any 

direct, indirect, or cumulative effects of 

the action on critical habitat adjacent to 

the excluded area. Moreover, any 

Federal actions at the POA that may 

adversely affect or destroy critical 

habitat areas not excluded by this rule 

would remain subject to all of section 

7’s consultation requirements. 

Therefore, most of the conservation 

benefits will accrue despite the 

exclusion. 

In assessing the impacts of this 

critical habitat designation on national 

security, we considered the following 

factors: (1) The size of the particular 

area requested for exclusion relative to 

the area proposed for critical habitat 

designation; (2) the likelihood of a 

consultation with the DOD, or of a 

consultation having direct impact on 

DOD in this area; (3) the intensity of use 

of the area by the DOD; (4) the 

likelihood that DOD activities would 

destroy or adversely modify the critical 

habitat; (5) the level of protection 

provided to one or more PCEs by 

existing DOD safeguards, and (6) the 

likelihood that other Federal actions 

may occur in the particular area that 

would no longer be subject to the 

critical habitat provisions if the area 

were excluded from designation. 

Factors 1, 3, 4, and 6 weigh in favor 

of the exclusion. The area excluded is 

very small in contrast to the area 

included—less than 1 percent of the 

habitat proposed for designation in 

Cook Inlet. It appears unlikely that most 

DOD activities associated with the POA 

would require consultation on critical 

habitat because cargo loading and ship 

movement should not affect that habitat 

or the identified essential features. 

There appears little probability that 

DOD activities here would be likely to 

destroy or adversely modify critical 

habitat. Finally, there are no other 

Federal actions expected to occur that 

would no longer be subject to the 

critical habitat provisions if the area 

were excluded from designation. As for 

the remaining factors, factor 2 is neutral, 

and factor 5 weighs against granting the 

exclusion since we are unaware of any 

existing protections provided by DOD to 

the PCEs within the excluded area. 

We also considered the high priority 

placed on national security, the 

potential for designation of critical 

habitat to impact military readiness, and 

the total habitat value represented by 

this area. Based on our assessment of 

these considerations, we conclude that 

benefits to national security of exclusion 

outweigh the conservation benefits of 

inclusion. We, therefore, are not 

designating the POA, nor its 

immediately adjacent offshore 

operational area, as critical habitat. See 

Figure 1 for the specific areas and 

excluded area. 

While the POA exclusion area 

contains some of the essential features 

of this critical habitat, those features 

exist throughout the designated habitat 

and are not unique to the POA area. The 

area of the POA is less than 1 percent 

of the available habitat within Cook 

Inlet, and its exclusion would not be 

likely to result in the extinction of this 

DPS. 

Port MacKenzie is not listed as a 

Strategic Port, nor is it currently 

adjacent to military lands, accessible by 

a major road system, utilized for 

munitions transfers, or serviced by rail. 

We received no supporting 

recommendations for this exemption 

from the DOD, and did not find 

substantial evidence of impacts to 

national security because of Port 

MacKenzie’s inclusion as critical 

habitat. In light of the conservation 

benefits described in this rulemaking 

from its inclusion, we decline to 

exercise our discretion to exclude Port 

MacKenzie from the critical habitat 

designation. 

Conclusions 

With one exception, we conclude that 

the benefits from excluding any and 

each particular area do not outweigh the 

benefits of designation as critical 

habitat, upon consideration of: (1) The 

functional role of critical habitat and its 

essential features in the conservation of 

Cook Inlet beluga whales; (2) the 

benefits of designation to Cook Inlet 

beluga whales in terms of enhanced 

ability to protect or conserve this habitat 

under ESA consultation; and (3) the 

economic costs borne by any and each 

particular area’s inclusion. We conclude 

that, based on consideration of the 

impact to national security, the benefits 

from excluding the POA from the 

critical habitat designation outweigh 

those for its inclusion, and we have 

determined not to designate this 

particular area as critical habitat for the 

Cook Inlet beluga whale. 

Critical Habitat Designation 

This final rule will designate as 

critical habitat for the Cook Inlet beluga 

whale 7,800 square kilometers (3,013 

square miles) of marine and estuarine 

area in Cook Inlet, Alaska, within the 

geographical area occupied by this 

species. In determining this critical 

habitat, we considered comments 

received in response to the Advance 

Notice of Proposed Rulemaking (74 FR 

17131; April 14, 2009), the proposed 

rule (74FR 63080; December 2, 2009), 

peer review, public hearings; sighting 

reports, satellite telemetry data, TEK, 

scientific papers and other research; the 

biology and ecology of the Cook Inlet 

DPS of beluga whales; and information 

indicating the presence of one or more 

of the identified PCEs within certain 

areas of their range. We designate 


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critical habitat within two areas of Cook 

Inlet. 

The designated critical habitat does 

not include two areas for which the 

military has provided an INRMP that we 

have determined provides benefits to 

the Cook Inlet beluga whale pursuant to 

section 4(a)(3)(B)(i) of the ESA: (1) The 

Eagle River Flats Range on Fort 

Richardson; and (2) military lands of 

Joint Base Elmendorf-Richardson 

between Mean Higher High Water and 

Mean High Water. In addition, we have 

determined that the benefits of 

excluding the Port of Anchorage and 

adjacent navigation channel and turning 

basin outweigh the benefits of including 

it because of national security reasons, 

and excluding these areas will not result 

in the extinction of the Cook Inlet 

beluga whale. We are not designating 

any unoccupied geographical areas as 

critical habitat. 

Classification 

Regulatory Planning and Review 

(Executive Order 12866) 

This final rule has been determined to 

be significant for purposes of E.O. 

12866. The economic benefits and costs 

of this critical habitat designation are 

described in our economic report 

supporting this rulemaking. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, whenever an 

agency is required to publish a notice of 

proposed rulemaking for any proposed 

rule, it must either certify that the action 

is not likely to result in significant 

adverse economic impacts on a 

substantial number of small entities; or 

it must prepare and make available for 

public comment a regulatory flexibility 

analysis that describes the effects of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). We 

have prepared a final regulatory 

flexibility analysis (FRFA), as part of 

our economic analysis. Responses to 

comments on this document are 

provided above in the preamble to the 

rule, and any necessary changes were 

made to the FRFA. 

The reasons for the action, a statement 

of the objectives of the action, and the 

legal basis for the final rule are 

discussed earlier in the preamble. A 

summary of the analysis follows. 

The small entities that may be directly 

regulated by this action are those that 

seek formal approval (e.g., a permit) 

from, or are otherwise authorized by, a 

Federal agency to undertake an action or 

activity that ‘‘may affect’’ critical habitat 

for the Cook Inlet beluga whale. 

Submission by a small entity of such a 

request for a Federal agency’s approval 

would require that agency (i.e., the 

‘‘action agency’’) to consult with NMFS 

(i.e., the ‘‘consulting agency’’). 

Consultations vary from simple to 

highly complex, depending on the 

specific facts of each action or activity 

for which application is made. 

Attributable costs are directly 

proportionate to complexity. In the 

majority of instances projected to take 

place under this critical habitat 

designation, these costs are expected to 

accrue solely to the Federal agencies 

that are party to the consultation. In 

only the most complex formal 

consultations, a private sector applicant 

might incur costs directly attributable to 

the designation consultation process. 

For example, if the formal consultation 

concludes that the proposed activity is 

likely to destroy or adversely modify 

critical habitat, the applicant will have 

to implement modifications to avoid 

such effects. These modifications have 

the potential to result in adverse 

economic impacts, although they need 

not necessarily do so. 

An examination of the Federal 

agencies with management, 

enforcement, or other regulatory 

authority over activities or actions 

within, or immediately adjacent to, the 

designated critical habitat area, resulted 

in the following list: The ACOE, EPA, 

Minerals Management Service (MMS), 

Maritime Administration (MARAD), 

USCG, DOD, NMFS, Federal Highway 

Administration (FHWA), Federal Energy 

Regulatory Commission (FERC), and 

Federal Aviation Administration (FAA). 

Activities or actions that require Federal 

authorization, permits, or funding, and 

which may be expected to require some 

level of consultation, include: COE 

permits for structures and work in 

waters of the United States; EPA 

permitting of discharges under the 

National Pollutant Discharge 

Elimination System; MMS oil and gas 

exploration and production permitting 

in Federal waters of Cook Inlet; MARAD 

permits for the POA expansion; USCG 

permits for spill response plans; DOD 

activities at Joint Base ElmendorfRichardson facilities; NMFS 

authorizations of commercial fisheries, 

and review of subsistence harvest 

allowances; FHWA funding of highway 

and bridge improvements along 

Turnagain Arm; FERC permits for 

turbine electrical generation projects 

(wind and tidal); and FAA permitting of 

regional airport expansions and 

development. 

A 10-year ‘‘post-critical habitat 

designation’’ analytical horizon was 

adopted, during which time NMFS may 

reasonably expect to consult on critical 

habitat-related actions with one or more 

of the action agencies identified above. 

The majority of the consultations are 

expected to be ‘‘informal’’ (we estimate 

90 percent of all consultations would be 

informal). In each of these, no adverse 

impacts would accrue to the entity or 

applicant requesting Federal action. The 

more complex and costly formal 

consultations are projected to account 

for, perhaps, ten percent. Here, NMFS 

and the Federal action agency may 

develop alternatives that prevent the 

likelihood that critical habitat will be 

destroyed or adversely affected. The 

extent to which these formal 

consultations will result in more than 

de minimus third party costs, as well as 

whether such third parties constitute 

small entities for Regulatory Flexibility 

Act purposes, cannot be predicted. 

Often, no consultation will be 

necessary, as all questions can be 

resolved through the ‘‘technical 

assistance’’ process. 

We lack sufficient information to 

estimate precisely the number of 

consultations that may result in a 

determination of destruction or adverse 

modification to critical habitat. 

However, on the basis of the underlying 

biological, oceanographic, and 

ecological science used to identify the 

PCEs that define critical habitat for the 

Cook Inlet beluga whale, as well as the 

foregoing assumptions, empirical data, 

historical information, and accumulated 

experience regarding human activity in 

Cook Inlet, we believe that various 

federally authorized activities have the 

potential to ‘‘destroy or adversely 

modify’’ Cook Inlet beluga whale critical 

habitat. While we are unable to predict 

in advance exactly which activities 

might result in the destruction or 

adverse modification of the designated 

critical habitat, we note that such 

activities are restricted to those actions 

impacting the identified essential 

features, or PCEs. Importantly, however, 

an action that may adversely affect a 

PCE is not necessarily one that will 

result in the destruction or adverse 

modification of the proposed critical 

habitat. 

Executive Order 13211 

On May 18, 2001, the President issued 

an E.O. on regulations that significantly 

affect energy supply, distribution, and 

use. E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking any action that 

promulgates or is expected to lead to the 

promulgation of a final rule or 


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regulation that (1) is a significant 

regulatory action under E.O. 12866 and 

(2) is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

We have considered the potential 

impacts of this action on the supply, 

distribution, or use of energy and finds 

the designation of critical habitat will 

not have impacts that exceed the 

thresholds identified above. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, we make the 

following findings: 

(a) This final rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) 

‘‘Federal private sector mandate’’ 

includes a regulation that ‘‘would 

impose an enforceable duty upon the 

private sector, except (i) a condition of 

Federal assistance; or (ii) a duty arising 

from participation in a voluntary 

Federal program.’’ The designation of 

critical habitat does not impose a legally 

binding duty on non-Federal 

government entities or private parties. 

Under the ESA, the only regulatory 

effect is that Federal agencies must 

ensure that their actions do not destroy 

or adversely modify critical habitat 

under section 7. While non-Federal 

entities who receive Federal funding, 

assistance, permits or otherwise require 

approval or authorization from a Federal 

agency for an action may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above to 

State governments. 

(b) Due to the prohibition against the 

take of this species both within and 

outside of the designated areas, we do 

not anticipate that this final rule will 

significantly or uniquely affect small 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with E.O. 12630, the 

final rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

The designation of critical habitat 

affects only Federal agency actions. 

Private lands do not exist within the 

designated critical habitat and therefore 

would not be affected by this action. 

Federalism 

In accordance with E.O. 13132, this 

final rule does not have significant 

federalism effects. A federalism 

assessment is not required. In keeping 

with Department of Commerce policies, 

we have requested information from, 

and will continue to coordinate this 

critical habitat designation with 

appropriate state resource agencies in 

Alaska. This designation may have some 

benefit to state and local resource 

agencies in that the areas essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary to the survival of Cook 

Inlet beluga whale are specifically 

identified. While making this definition 

and identification does not alter where 

and what federally sponsored activities 

may occur, it may assist local 

governments in long-range planning 

(rather than waiting for case-by-case 

ESA section 7 consultations to occur). 

Civil Justice Reform 

In accordance with E.O. 12988, the 

Department of Commerce has 

determined that this final rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We are 

designating critical habitat in 

accordance with the provisions of the 

ESA. This final rule uses standard 

property descriptions and identifies the 

PCEs within the designated areas to 

assist the public in understanding the 

habitat needs of the Cook Inlet beluga 

whale. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This final rule does not contain new 

or revised information collection for 

which the Office of Management and 

Budget (OMB) approval is required 

under the Paperwork Reduction Act. 

This rule will not impose recordkeeping 

or reporting requirements on State or 

local governments, individuals, 

businesses, or organizations. 

Notwithstanding any other provision of 

the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

National Environmental Policy Act 

NMFS has determined that an 

environmental analysis as provided for 

under the National Environmental 

Policy Act of 1969 for critical habitat 

designations made pursuant to the ESA 

is not required. See Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995), 

cert. denied, 116 S.Ct. 698 (1996). 

Government-to-Government 

Relationship 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the Federal Government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. E.O. 13175—Consultation and 

Coordination with Indian Tribal 

Governments—outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. Public Law 108–199 (2004), 

codified in notes to 25 U.S.C. 450, 

requires all Federal agencies to consult 

with Alaska Native corporations on the 


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same basis as Indian tribes under this 

Executive Order. 

We have determined that designation 

of critical habitat for the Cook Inlet 

beluga whale in Cook Inlet, Alaska, 

would not have tribal implications, nor 

affect any tribal governments or Native 

corporations. Although the Cook Inlet 

beluga whale may be hunted by Alaska 

Natives for traditional use or 

subsistence purposes, none of the 

designated critical habitat areas occurs 

on tribal lands, affects tribal trust 

resources, or the exercise of tribal rights. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

Web site at http://www.fakr.noaa.gov/ 

and is available upon request from the 

NMFS office in Juneau, Alaska (see 

ADDRESSES section). 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: April 1, 2011. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons stated in the 

preamble, we amend 50 CFR part 226 as 

follows: 

PART 226—[AMENDED] 

■ 1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Add § 226.220, to read as follows: 

§ 226.220 Critical habitat for the Cook Inlet 

beluga whale (Delphinapterus leucas). 

Critical habitat is designated in Cook 

Inlet, Alaska, for the Cook Inlet beluga 

whale as described in paragraphs (a) 

and (b) of this section. The textual 

description of this critical habitat is the 

definitive source for determining the 

critical habitat boundaries. General 

location maps are provided for general 

guidance purposes only, and not as a 

definitive source for determining critical 

habitat boundaries. Critical habitat does 

not include manmade structures and the 

land on which they rest within the 

designated boundaries described in 

paragraphs (a)(1) and (2) of this section 

that were in existence as of May 11, 

2011. 

(a) Critical Habitat Boundaries. 

Critical habitat includes two specific 

marine areas in Cook Inlet, Alaska. 

These areas are bounded on the upland 

by Mean High Water (MHW) datum, 

except for the lower reaches of four 

tributary rivers. Critical habitat shall not 

extend into the tidally-influenced 

channels of tributary waters of Cook 

Inlet, with the exceptions noted in the 

descriptions of each critical habitat area. 

(1) Area 1. All marine waters of Cook 

Inlet north of a line from the mouth of 

Threemile Creek (61°08.5′ N., 151°04.4′ 

W.) connecting to Point Possession 

(61°02.1′ N., 150°24.3′ W.), including 

waters of the Susitna River south of 

61°20.0′ N., the Little Susitna River 

south of 61°18.0′ N., and the Chickaloon 

River north of 60°53.0′ N. 

(2) Area 2. All marine waters of Cook 

Inlet south of a line from the mouth of 

Threemile Creek (61°08.5′ N., 151°04.4′ 

W.) to Point Possession (61°02.1′ N., 

150°24.3′ W.) and north of 60°15.0′N., 

including waters within 2 nautical miles 

seaward of MHW along the western 

shoreline of Cook Inlet between 60°15.0′ 

N. and the mouth of the Douglas River 

(59°04.0′ N., 153°46.0′ W.); all waters of 

Kachemak Bay east of 151°40.0′ W.; and 

waters of the Kenai River below the 

Warren Ames bridge at Kenai, Alaska. 

(b) A map of the designated critical 

habitat for Cook Inlet beluga whale 

follows (Figure 1). 

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(c) Primary constituent elements. The 

primary constituent elements essential 

to the conservation of the Cook Inlet 

beluga whale are: 

(1) Intertidal and subtidal waters of 

Cook Inlet with depths <30 feet (MLLW) 

and within 5 miles of high and medium 

flow anadromous fish streams. 

(2) Primary prey species consisting of 

four species of Pacific salmon (Chinook, 

sockeye, chum, and coho), Pacific 

eulachon, Pacific cod, walleye pollock, 

saffron cod, and yellowfin sole. 

(3) Waters free of toxins or other 

agents of a type and amount harmful to 

Cook Inlet beluga whales. 

(4) Unrestricted passage within or 

between the critical habitat areas. 

(5) Waters with in-water noise below 

levels resulting in the abandonment of 

critical habitat areas by Cook Inlet 

beluga whales. 

(d) Sites owned or controlled by the 

Department of Defense, or of interest to 

national security. Critical habitat does 

not include the following areas owned 

by the Department of Defense or for 

which the Secretary has determined to 

exclude for reasons of national security: 

(1) All property and overlying waters 

of Joint Base Elmendorf-Richardson 

between Mean Higher High Water and 

Mean High Water; and 

(2) All waters off the Port of 

Anchorage which are east of a line 

connecting Cairn Point (61°15.4′ N., 

149°52.8′ W.) and Point MacKenzie 

(61°14.3′ N., 149°59.2′ W.) and north of 

a line connecting Point MacKenzie and 

the north bank of the mouth of Ship 

Creek (61°13.6′ N., 149°53.8′ W.). 

[FR Doc. 2011–8361 Filed 4–8–11; 8:45 am] 

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