[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69054-69070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9453]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 060228057-6283-02; I.D. 022206D]
RIN 0648-AU38


Endangered and Threatened Species; Designation of Critical 
Habitat for Southern Resident Killer Whale

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule designating critical habitat for the Southern Resident 
killer whale (Orcinus orca) distinct population segment (DPS). Three 
specific areas are designated, (1) the Summer Core Area in Haro Strait 
and waters around the San Juan Islands; (2) Puget Sound; and (3) the 
Strait of Juan de Fuca, which comprise approximately 2,560 square miles 
(6,630 sq km) of marine habitat. We considered the economic impacts and 
impacts to national security, and concluded the benefits of exclusion 
of 18 military sites, comprising approximately 112 square miles (291 sq 
km), outweighed the benefits of inclusion because of national security 
impacts.
    We solicited comments from the public on all aspects of the 
proposed rule. An economic analysis, biological report, and Endangered 
Species Act (ESA) report were available for comment along with the 
proposed rule. The supporting documents have been finalized in support 
of the final critical habitat designation.

DATES: This rule becomes effective December 29, 2006.

ADDRESSES: The final rule, maps, and supporting documents used in 
preparation of this final rule, as well as comments and information 
received, are available on the NMFS Northwest Region website at http://www.nwr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Lynne Barre at (206) 526-4745, or 
Marta Nammack at (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Under the ESA, we are responsible for determining whether certain 
species, subspecies, or distinct population segments (DPS) are 
threatened or endangered, and designating critical habitat for them (16 
U.S.C. 1533). In November 2005, we listed the Southern Resident killer 
whale DPS as endangered under the ESA (70 FR 69903; November 18, 2005). 
At the time of listing, we also announced our intention to propose 
critical habitat for the Southern Resident killer whale. Critical 
habitat for Southern Residents was proposed on June 15, 2006 (71 FR 
34571).

Killer Whale Natural History

    Three distinct forms of killer whales, termed residents, 
transients, and offshores, are recognized in the northeastern Pacific 
Ocean. Resident killer whales in U.S. waters are distributed from 
Alaska to California, with four distinct communities recognized: 
Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al., 
2002; 2004). Resident killer whales are fish eaters and live in stable 
matrilineal pods. The Southern Resident DPS consists of three pods, 
identified as J, K, and L pods, that reside for part of the year in the 
inland waterways of Washington State and British Columbia (Strait of 
Georgia, Strait of Juan de Fuca, and Puget Sound), principally during 
the late spring, summer, and fall (Ford et al., 2000; Krahn et al., 
2002). Pods visit coastal sites off Washington and Vancouver Island 
(Ford et al., 2000), but travel as far south as central California and 
as far north as the Queen Charlotte Islands. Offshore movements and 
distribution are largely unknown for the Southern Resident DPS.
    Detailed information on the natural history of Southern Residents 
is included in the Proposed Conservation Plan for Southern Resident 
Killer Whales (Orcinus orca) available at http://www.nwr.noaa.gov/ and 
was summarized in the biological report and the proposed rule to 
designate critical habitat (71 FR 34571; June 15, 2006).

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for Southern Resident killer whales (71 FR 34571; June 15, 
2006). 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 a biological report, an economic report, and a 
report supporting NMFS' conclusions under Section 4(b)(2) of the ESA, 
were posted. We obtained independent peer review of the draft 
biological report (NMFS, 2006a) and draft Economic Analysis (NMFS, 
2006b) and incorporated the peer review comments into the documents 
prior to dissemination in support of the proposed rule. Two public 
hearings were held on July 12, 2006, in Seattle and July 13, 2006, in 
Friday Harbor, WA, and the public comment period closed on August 14, 
2006.
    We have considered all public comments, and they are addressed in 
the following summary. We have assigned comments to major issue 
categories and, where appropriate, have combined similar comments.

Physical or Biological Features Essential for Conservation (Primary 
Constituent Elements)

    Comment 1: In our proposed listing determination for killer whales, 
we identified potential Primary Constituent Elements (PCEs) of critical 
habitat, including ``Sound levels that do not exceed thresholds that 
inhibit communication or foraging activities or result in temporary or 
permanent hearing loss.'' Many commenters expressed concern that the 
proposed critical habitat designation did not include sound as a PCE. 
These commenters pointed out that killer

[[Page 69055]]

whales rely on sound to navigate, forage, mate, avoid predators, and 
communicate with one another. One commenter noted research findings 
that vessel effects and acoustic disturbance are stressors on killer 
whales. Another commenter pointed to study findings that suggest killer 
whales abandon certain habitats when confronted with introduced noise. 
These commenters argued that NMFS should consider sound an element of 
the physical environment of water, just as NMFS considers water 
quality, prey, and passage habitat conditions. Commenters pointed out 
that underwater, sound travels farther than above water, and, 
therefore, should be considered differently. Others pointed out that 
sound is a commonly accepted pollutant, and should be treated as such 
in the critical habitat designation. They also pointed to the inclusion 
of sound as a concern in NMFS' proposed Conservation Plan for Southern 
Residents and the 2004 Status Review. The commenters were particularly 
concerned with the impact of military sonar in Puget Sound on Southern 
Residents. Several commenters also mentioned the 2003 USS Shoup 
incident that reportedly affected Southern Resident behavior in the 
Sound as evidence of the harmful impacts of military sonar in the 
Sound. Other commenters focused on ambient noise and the noise from 
specific projects underway in the Sound as concerns for Southern 
Residents. They felt that excluding sound as a PCE would allow these 
activities to continue unmonitored for sound levels. One commenter 
argued that NMFS should extend critical habitat to the shoreline to 
prevent the impacts of noise related to nearshore activities on killer 
whales. These commenters requested NMFS reconsider sound as a PCE due 
to its importance to the species and create sound thresholds to enable 
enforcement of potential regulations.
    Response: We acknowledge the many observations about the potential 
for sound to startle or even physically injure killer whales. These 
effects, however, are direct effects to the animal itself and not to 
its habitat. The agency has already conducted several ESA section 7 
consultations on construction activities, and measures were included in 
the action to avoid direct impacts to the whales. Regarding the comment 
in support of enforceable regulations to protect killer whales from 
sound, we have sound thresholds that we consider to be harassment under 
the Marine Mammal Protection Act (MMPA). We also recently announced our 
intention to consider new criteria to determine what constitutes 
``take'' under the MMPA and ESA, through preparation of an 
environmental impact statement (70 FR 1871; January 11, 2005). As that 
process unfolds, we may consider additional regulations to protect 
Southern Residents from harmful sounds.
    Continuous sounds may interfere with the whales' echolocation and 
communication. At this time, however, we lack sufficient information to 
include sound as a PCE of killer whale critical habitat. We will 
continue to consider sound in any future revisions of the critical 
habitat designation.

Geographical Area Occupied by the Species

    Comment 2: We received many comments regarding the proposal to 
designate critical habitat in waters deeper than 20 feet (6.1 m) based 
on extreme high water. The majority of commenters felt that we should 
include waters shallower than 20 feet (6.1 m) because killer whale 
prey, particularly salmon, occupy these waters, and these areas are 
essential to the conservation of the Southern Residents. The importance 
of these habitats for salmon and forage fish was the predominant 
argument for including shallow waters as critical habitat for Southern 
Residents. Several commenters argued against our assessment that the 
Southern Residents' size prevents them from occupying shallow waters, 
pointing to the activities of other killer whales that use shallow 
waters for rubbing on rock bottoms and for foraging on marine mammals 
as evidence of killer whales' ability to occupy shallow waters. In 
contrast, there were commenters who supported our determination that 
there is very little evidence to indicate that the whales occupy 
shallow waters.
    Commenters also cited the lack of a barrier between shallow and 
deep waters and mentioned that human activities occurring in shallow 
waters inevitably affect Southern Residents in deeper waters. Of 
particular concern was the fact that much of the pollution in the Sound 
enters through shallow waters and that excluding these waters from 
designation would limit our ability to address polluting activities. 
Commenters believed that including shallow waters in the critical 
habitat designation would increase the clean-up priority of 
contaminated sediments and limit industrialization. Some commenters 
listed specific projects in shallow waters that pose pollution and 
noise threats to Southern Residents. These commenters felt that 
including shallow waters would allow closer regulation of these 
projects to prevent harmful impacts on the deeper water habitat of 
Southern Residents. One commenter believed that including shallow water 
in critical habitat is necessary to ensure water quality and prey 
sustainability, two of the PCEs identified by NMFS.
    In addition, several commenters asserted that it would be difficult 
to determine a 20-foot (6.1-m) depth contour relative to extreme high 
water because such a line is not commonly found on reference maps and 
charts. We received suggestions that using the shoreline as the 
critical habitat boundary would make it easier for the public to 
understand the boundaries of critical habitat and for Federal action 
agencies to evaluate their projects and effects on critical habitat.
    Response: The overwhelming majority of comments focused on the 
importance of shallow nearshore waters for salmon and forage fish 
species. In the critical habitat proposal, we did not consider shallow 
waters (i.e., nearshore areas between the line of extreme high tide and 
a depth of 20 feet (6.1 m) relative to this line) of Puget Sound to be 
within the geographical area occupied by Southern Resident killer 
whales. While we acknowledged observations of transient whales beaching 
themselves to attack marine mammals, and those of Northern Residents 
using shallow areas at rubbing beaches, we did not have any similar 
accounts for Southern Resident whales and so requested additional 
information on use of shallow waters from the public during the comment 
period.
    We received comments providing some information on Southern 
Resident killer whale use of shallow waters. One researcher and several 
other individuals submitted accounts and photos of Southern Resident 
whales using specific shallow areas, though it was not clear if these 
areas were less than 20 feet (6.1 m) deep based on extreme high water. 
We specifically requested public comments on use of shallow areas, and 
the limited information received is not sufficient to consider all 
shallow areas as occupied.
    Joint NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide 
that we will designate unoccupied areas as critical habitat only upon a 
finding that the currently occupied habitat is inadequate for 
conservation (50 CFR 424.12(e)). At this time we lack sufficient 
information to determine that the currently occupied habitat is 
inadequate and that additional unoccupied habitat in the shallow areas 
less than 20-feet (6.1 m) deep is essential for conservation of the 
species. We will consider any new information

[[Page 69056]]

indicating that the current occupied habitat is a limiting factor for 
recovery as more research is conducted.
    The final critical habitat designation is consistent with the 
proposed rule and does not include waters shallower than 20 feet (6.1 
m) based on extreme high water. Tidal fluctuations vary at locations 
throughout the critical habitat areas, but generally, the shallow areas 
not included in the critical habitat designation are very shallow (5-10 
feet) (1.5-3m) in some tidal conditions and can even be exposed at very 
low tides. During some tidal conditions these areas are not accessible 
by the whales, and we do not have data indicating that these areas are 
frequently used by whales.
    Regarding the importance of using lines found on standard maps, we 
agree it can be problematic to draw a line at the 20-foot (6.1 m) depth 
because standard topographic maps and nautical charts do not always 
depict such a line. The line of extreme high water, however, can be 
determined using visual cues (Cowardin et al., 1979; Ritter et al., 
1996) and using site-specific tidal information and similar depth 
contours (e.g., 20 feet or 6.1 meters) found on maps and nautical 
charts to evaluate if their activities are taking place in or may 
affect designated critical habitat deeper than 20 feet (6.1 m) at 
extreme high water. Thus, Federal agencies can determine whether their 
proposed actions may affect critical habitat, and the public and other 
entities can discern where habitat critical to Southern Resident killer 
whales has been designated.
    In our proposed rule, we estimated the total area and shoreline 
proposed for designation using readily available Geographic Information 
System (GIS) data depicting Washington shorezones (Berry et al., 2000). 
These data are widely used by various state and Federal agencies in 
Puget Sound to locate and evaluate projects and activities in the 
nearshore zone. The GIS data approximate the line of ordinary high 
water, but do not include bathymetry, so we did not attempt to subtract 
the areas shallower than 20 feet (6.1 m), though areas shallower than 
20 feet are not designated as critical habitat in this final rule. We 
have used the same dataset to make calculations supporting this final 
critical habitat designation.
    Prior to issuing proposed critical habitat, we did make some 
modifications to the GIS data described above, notably, the exclusion 
of estuarine and freshwater areas upstream of river and creek mouths. 
In re-evaluating the nearshore areas proposed for critical habitat, we 
identified several small or shallow inlets, harbors, coves and bays, 
some with very narrow entrances, and obtained more detailed sighting 
information to assist with drawing a shoreline boundary for some areas. 
In most cases, the whales had not been sighted within the small water 
bodies (e.g., Drayton Harbor, Wescott Bay, Guthrie Cove, Tulalip Bay, 
Port Gardner/eastern side of Jetty Island, Chapman Cove, Big Fishtrap 
Inlet, Gull Harbor, Rocky Bay at the mouth of Rocky Creek, Taylor Bay, 
Mayo Cove, Horsehead Bay, Wollochet Bay, Mystery Bay, Eagle Harbor, 
Jarrell Cove and Sequim Bay), so we have further modified the GIS data 
to excise these areas, totaling approximately 15 square miles (39 sq. 
km), in the final designation. We did include several small harbors 
where we had reports of Southern Resident whales at the harbor 
entrances (e.g., Keystone Harbor, Gig Harbor).
    Not designating waters shallower than 20 feet (6.1 m) (based on 
extreme high water) as critical habitat does not preclude consultation 
on activities that occur in these shallow nearshore areas. ESA section 
7's requirement that Federal agencies ensure their actions aren't 
likely to adversely modify critical habitat applies equally to actions 
occurring outside as to actions occurring within designated critical 
habitat.
    Comment 3: Many commenters argued for including Hood Canal (Canal) 
in the critical habitat designation. Commenters reported sightings of 
Southern Residents in the Canal, and asserted that until the 1980s 
Southern Residents regularly visited the Canal, making the Canal part 
of the home range of the species. These commenters felt we used too 
short of a time frame in our assessment and that a longer time frame of 
up to 20 years would result in the inclusion of Hood Canal in the 
designation. Others noted that transient killer whales use the Canal 
frequently, and, therefore, it should be designated critical habitat. 
Some commenters expressed concern that exclusion from designation would 
allow further development of the Canal, strip mining, industrial harbor 
pollution, continued sewer runoff into the Canal, and heavy commercial 
traffic, harming the Canal's ecosystem, contributing to low oxygen 
levels, and further discouraging Southern Residents from using its 
waters. Many commenters felt that Hood Canal and its salmon populations 
should be a top concern for NMFS, predicting that with salmon recovery 
in the waterway, Southern Residents would return to seek out prey. 
These commenters felt strongly that protecting Southern Resident food 
sources, specifically salmon, was reason enough to designate Hood Canal 
critical habitat. All of these commenters believe Hood Canal is 
essential to the recovery of Southern Residents.
    Response: Section 3(5)(A) of the ESA defines critical habitat as 
areas either occupied or not occupied by the species ``at the time it 
is listed.'' We relied on the best available information on killer 
whale distribution to develop the proposed critical habitat areas. The 
sighting data we received from the Whale Museum included sightings of 
Southern Residents from 1990-2003, which was the most reliable 
information in their long-term database. Whales were identified by pod 
when possible, and sightings of transients, northern residents, and 
offshore whales were not included in the Whale Museum data set. There 
were no sightings of Southern Resident killer whales reported in Hood 
Canal from 1990-2003. In addition to the sighting data, we received one 
report of a sound recording made in Hood Canal from 1995, which was 
confirmed as calls of Southern Residents. Based on the one recording, 
we did not consider Hood Canal as occupied by the species at the time 
of listing. Commenters compared the one occurrence of Southern 
Residents in Hood Canal in 1995 to the areas in South Puget Sound that 
also had small numbers of sightings. The Puget Sound sightings, 
however, were often more than one sighting, were more recent, and were 
contiguous with areas of greater numbers of sightings. In contrast, 
Hood Canal has a narrow entrance, and its waters are not adjacent to 
areas with regular sightings.
    The information we received during the public comment period 
included three additional sightings of killer whales in Hood Canal with 
sufficient information (photos, sound recordings, detailed field notes) 
to confirm that they were Southern Residents. The sound recording was 
made in 1958, the photograph was taken in 1973, and the detailed 
account was from a sighting in 1977. In addition, there were many 
anecdotal accounts of groups of whales with larger group sizes than are 
typical for transient whales and may have been Southern Residents 
spanning the 1940's-1980's. In the past, we have considered 
opportunistic or historical information on a specicies' occupied 
habitat when current documentation is not available. However, for 
Southern Residents, we have a more recent sighting record from the 
Whale Museum. Even if we increased the time span under consideration to 
20 years, it would not add any confirmed sightings of Southern 
Residents in Hood Canal at

[[Page 69057]]

the time of listing. At this time, there are not sufficient data to 
consider Hood Canal as occupied at the time of listing.
    The commenters also argued that if Hood Canal is not currently 
considered ``occupied by the species,'' it should still be designated 
as critical habitat because it contains the PCEs necessary for 
conservation (i.e., prey), and it is essential for conservation. Joint 
NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide that we 
will designate unoccupied areas as critical habitat only upon a finding 
that the currently occupied habitat is inadequate for conservation (50 
CFR 424.12(e)). At this time we lack sufficient information to 
determine that the currently occupied habitat is inadequate and that 
additional unoccupied habitat in Hood Canal is essential for 
conservation of the species. We will consider any new information 
indicating that the current occupied habitat is a limiting factor for 
recovery as more research is conducted.
    We appreciate the efforts by the Hood Canal community to gather the 
historical information on killer whale use of the area. If, as some 
predict, the whales do return to Hood Canal in response to increasing 
populations of prey species, we will continue to work with the local 
community to gather information and reevaluate the importance of Hood 
Canal as Southern Resident habitat.

Specific Areas

    Comment 4: Several commenters urged us to designate areas as 
critical habitat for killer whales if they are essential for salmon 
conservation, based on a variety of theories. Some commenters pointed 
out that nearshore areas and/or freshwater areas that support salmon 
contain physical or biological features essential for conservation of 
killer whales (those features being salmon, or the features that 
support salmon). Some commenters urged us to consider nearshore areas, 
bays, and even freshwater areas as unoccupied areas ``essential for 
conservation'' of the whales - one stating that the statutory provision 
regarding ``physical or biological features'' applies to both occupied 
and unoccupied areas and another stating that there is no statutory 
requirement for unoccupied areas to contain physical or biological 
features. One commenter stated that because nearshore and offshore 
waters are connected, it is arbitrary to draw a line separating the two 
(that is, the line we proposed at the 20-foot (6.1 m) depth).
    Response: The presence of salmon in densities and/or bathymetric 
conditions that make them available to killer whales appears to be the 
primary factor determining what areas the whales are likely to occupy. 
The fact that this essential feature is also present in areas the 
whales cannot occupy does not make those outside areas ''occupied'' in 
the statutory sense. Nor does the fact that those unoccupied areas may 
be essential to salmon make them essential to killer whale 
conservation. Joint NMFS-U.S. Fish and Wildlife Service (FWS) 
regulations provide that we will designate unoccupied areas as critical 
habitat only upon a finding that the currently occupied habitat is 
inadequate for conservation (50 CFR 424.12(e)). At this time we lack 
sufficient information to determine that the currently occupied habitat 
is inadequate and that additional unoccupied habitat is essential for 
conservation of the species. We will consider any new information 
indicating that the current occupied habitat is a limiting factor for 
recovery as more research is conducted.
    No matter where the line is drawn to delineate a specific area, 
there will be activities occurring outside of the delineated area that 
may affect the features within the area. When prey items are a 
biological feature that moves freely in and out of the geographical 
area occupied by the species, it creates a situation in which there is 
a ''biological feature'' outside the occupied specific areas. This fact 
does not make line-drawing arbitrary because the statute requires us to 
designate as critical habitat specific areas occupied by the species 
that contain those physical and biological features essential to 
conservation and may require special management considerations or 
protection, or unoccupied areas essential to the conservation of the 
species. Here we have chosen a reasonable line on a map (as our 
regulations require) to clearly identify ``specific areas within the 
geographical area occupied by the species.'' Moreover, section 7's 
requirement that Federal agencies ensure their actions are not likely 
to adversely modify critical habitat apply equally to actions occurring 
outside and within designated critical habitat. We have identified a 
depth contour of 20 feet (6.1 m) based on extreme high water for the 
final critical habitat. We believe this is a reasonable way to 
delineate a ``specific area within the geographical area occupied by 
the species.''
    Comment 5: Many commenters requested that we include the offshore 
waters of Washington, Oregon, and California in the critical habitat 
designation. One commenter recommended we begin our designation at a 
reasonable depth and extend it to five miles (8.0 km) offshore to 
adequately protect waters used by Southern Residents. Many comments 
specifically requested that the Olympic Coast National Marine Sanctuary 
be included in the critical habitat designation. Most felt there was 
sufficient evidence to include offshore waters in the critical habitat 
designation at this time. Others encouraged us to conduct additional 
research on the winter coastal habitat of Southern Residents to gather 
information to support expansion of the critical habitat designation in 
the future.
    Response: In the proposed rule, we identified the data gaps 
regarding distribution of Southern Residents in coastal and offshore 
waters and uncertainty regarding the important habitat features of 
these areas. At this time, we do not feel there is sufficient data to 
identify the specific areas in offshore waters in which the essential 
habitat features are found. This concern applies equally to the Olympic 
Coast National Marine Sanctuary and to other offshore areas. There is 
an active research program underway to gather information and fill in 
these data gaps, and we will consider any new information on coastal 
and offshore habitats that becomes available.

Special Management Considerations

    Comment 6: We received a number of comments on the threats to the 
Southern Resident killer whales and suggestions for management actions 
that could be taken. These included: concerns regarding fisheries 
management to ensure sufficient prey for the whales; high pollution 
levels in Puget Sound and the sewage dumping practices of particular 
areas; stress from whale watching and other vessels; and potential 
effects from research practices and oil spills.
    Response: For each of the specific areas proposed for critical 
habitat designation, we identified the PCEs and their special 
management considerations, which generally are the same concerns as 
those expressed by commenters. We will also consider the comments 
pertaining to specific threats to the whales and their habitat and 
potential management actions in developing a recovery plan for Southern 
Resident killer whales.

Activities That May Be Affected

    Comment 7: One commenter requested at least a partial list of the 
type of projects that would likely require ESA section 7 consultation 
to assist agencies and project sponsors.
    Another commenter suggested that Federal hydropower projects should

[[Page 69058]]

also be considered because of their potential to affect abundance of 
killer whale prey. Several commenters encouraged us to explore a 
Federal nexus under section 7 that would allow us to address vessels in 
Puget Sound.
    Response: We provided a list of activities that may be affected by 
this designation, including, but not limited to, fishery management 
practices, vessel traffic, dredging and disposal, sub-marine cable/
pipline installation and repair, oil and gas exploration, pollutant 
discharge, and oil spill prevention and response. If hydropower actions 
can be shown to significantly reduce the abundance of salmon available 
to the whales in designated critical habitat, they could adversely 
modify that habitat. As noted in response to Comment 8 below, most 
hydropower operations in the range of salmon and steelhead are already 
subject to modifications to protect listed salmon and steelhead. We 
will work with the Coast Guard and other agencies that oversee vessel 
activities to explore actions regarding vessels that may require 
section 7 consultation under the ESA.

Application of ESA section 4(b)(2)

Economic Impacts

    Comment 8: We received several comments requesting that we include 
additional quantified estimates of economic impacts of designating 
critical habitat for Southern Resident killer whales in the economics 
report. One commenter objected to the focus of the economic analysis on 
potential impacts to fisheries. One commenter suggested Federal 
hydropower projects be considered under section 7 of the ESA and 
economic impacts of those consultations be considered in the economic 
analysis. Other commenters requested inclusion of costs associated with 
water quality and stormwater management and noise-producing activities, 
such as construction. Another suggested that information about economic 
costs associated with climate change be included.
    Response: The range of economic costs estimated for critical 
habitat designation was related to possible reductions in harvest of 
prey species. While the economic analysis may appear to focus on 
potential impacts to fisheries, the economic report addresses other 
impacts such as those to water quality which could not be quantified. 
The inability to quantify these costs does not reduce their relative 
importance. In the ESA section 4(b)(2) report, we acknowledge that 
there are also additional costs associated with prey in addition to 
harvest, though we could not attribute these costs to the designation 
of critical habitat for Southern Resident killer whales. In designating 
critical habitat for the Puget Sound Chinook ESU, there were over 
$70,000,000 of economic impacts identified for the designated areas. 
Examples of other programs affecting salmon habitat include Shared 
Strategy for salmon recovery and Puget Sound Action Team and Puget 
Sound Partnership efforts to improve conditions in Puget Sound, which 
may cost hundreds of millions of dollars.
    In the case of hydroelectric projects, particularly the Federal 
projects the commenter identified, many hydroelectric project 
modifications to protect salmon and steelhead are already required to 
protect ESA-listed salmon or steelhead. Along the entire West Coast, 
nearly all salmon-bearing streams are home to listed salmon and 
steelhead (only coastal streams in Western Washington contain no listed 
salmon or steelhead). To the extent there is a Federal nexus on 
hydropower operations affecting these listed salmon and steelhead, the 
Federal agency involved must ensure its actions aren't likely to 
jeopardize the listed salmonids or adversely modify their critical 
habitat. As a result, hydropower operations that might affect the 
abundance of killer whale prey (including those in the Columbia River 
basin) are already modified to protect salmon and their critical 
habitat. It would be inappropriate to attribute the cost of 
modifications to killer whale critical habitat designation when they 
are already required to protect salmon and steelhead; however, if 
additional project modifications are required to prevent reductions of 
prey abundance for Southern Resident killer whales in designated 
critical habitat, these impacts would be attributable to this 
designation.
    Regarding water quality, we lack sufficient information at this 
time to determine which contaminants are likely to be the focus of 
future ESA section 7 consultations and what threshold levels are 
appropriate to protect Southern Residents. Until we have better 
information about the number and type of section 7 consultations on 
water quality management, and the extent of changes that may be 
required as a result of those consultations, it would be speculative to 
try to estimate associated costs. We do not have a consultation history 
for killer whales that would provide information on changes that might 
be required in water quality management to protect killer whale habitat 
from adverse modification. Nor do we have information that would allow 
us to estimate with any confidence what those changes might be. One 
commenter suggested that we rely on the consultation history of salmon 
to estimate economic costs for water quality management. However, there 
are different contaminants of concern for salmon, and, as noted above, 
costs associated with salmon consultations would not be appropriate to 
count twice. Impacts from Southern Resident critical habitat 
designation will likely come in areas different than those that stem 
from salmon protection and recovery.
    There are likely to be significant costs associated with 
construction activities as a result of our listing of Southern Resident 
killer whales because these sound-producing activities have a direct 
effect on the whales, as described in our response to Comment 1. We 
have already conducted several ESA section 7 consultations on 
construction activities, and measures were included in the action to 
avoid direct impacts to the whales. Because we consider such sound to 
be an impact on the whales rather than on the whales' habitat, however, 
we did not include the costs associated with these measures in our 
analysis of the economic impacts of designation.
    At this time it would be too speculative to try to determine what 
management changes may be required for salmon and steelhead in response 
to climate change.
    Comment 9: One commenter questioned the information in the 
economics report regarding stormwater outfalls, including the number of 
outfalls listed, and suggested we consider the contaminant levels for 
individual outfalls and sources rather than the number of outfalls or 
the agency responsible for managing the outfalls.
    Response: We recognize that the quantity and quality of stormwater, 
not the number of outfalls, will determine what changes would need to 
be made, if any, as a result of critical habitat designation. We also 
recognize that outfalls without any Federal nexus will not be subject 
to an ESA section 7 consultation. We included the number of outfalls 
that might be subject to consultation in the draft economics report, 
where such numbers were available, to give the decision maker some 
context for considering the potential impact of critical habitat 
designation, as required by ESA section 4(b)(2). In light of this 
comment, we have removed the table from the

[[Page 69059]]

economics report showing the number of outfalls.
    Comment 10: Commenters suggested that additional information on the 
economic benefits of recovered Southern Resident and salmon populations 
be included in the report.
    Response: While there may be studies that may provide some 
information relevant to estimating the benefits of recovered Southern 
Resident killer whale and salmon populations, there is insufficient 
information to estimate the incremental benefits (in addition to the 
current salmon recovery efforts) of critical habitat designation for 
Southern Residents on the status of Southern Resident and Pacific 
Northwest salmon populations.
    Comment 11: One commenter objected to the inclusion of polycyclic 
aromatic hydrocarbons (PAH) as a contaminant of potential concern to 
Southern Resident killer whales in the economic report. The commenter 
acknowledged that PAHs are mentioned in the conservation plan, but that 
since they were not specifically addressed in the listing or biological 
report, like other contaminants such as polychlorinated biphenyls (PCB) 
and dichloro-diphenyl-trichloroethane ( DDT), they should therefore not 
be included in the economic analysis.
    Response: While we concur with the commenter that PCBs and other 
contaminants pose a greater risk to Southern Residents than PAHs, PAHs 
are still a concern and we have modified the biological report to 
ensure it clearly reflects this concern. Exposure to PAHs can be 
chronic or acute in the case of an oil spill. Although there are few 
studies of PAH levels and effects in wild marine mammals and no studies 
linking PAHs to the decline in the Southern Residents, there are 
concerns regarding carcinogenic effects of high levels of PAHs in some 
marine mammals (e.g., beluga whales). PAHs were not specifically 
identified as a primary concern in the listing of Southern Residents, 
but their inclusion in the conservation plan and the economic report 
indicates that they may be a concern for Southern Residents. No 
specific costs were associated with inclusion of PAHs in the economic 
report.

National Security Impacts

    Comment 12: Many commenters disagreed with the decision to exclude 
18 military sites on the basis of national security. Commenters 
requested that we review and offer explanations for the exclusion of 
each facility on a case-by-case basis, balancing national security 
interests with those of Southern Residents. Reducing the size of 
exemptions, limiting the degree of the exemptions, or entering into an 
agreement with the Navy to address their activities were several of the 
recommendations of commenters. Many of the commenters expressed concern 
about non-military activities that occur in the exempt areas and 
whether they would be subject to critical habitat regulations. These 
commenters hoped we could find a way to protect Southern Residents from 
harmful, non-military activities in these zones. An additional concern 
for these commenters was the impact of military sonar. We received 
recommendations that the military increase its efforts to protect 
killer whales when conducting tests, using passive sonar to locate 
whales and avoid sonar usage when whales are in potentially harmful 
proximity to the military vessel.
    Response: In an appendix to the ESA Section 4(b)(2) report, we 
provided detailed information on each of the military sites and 
summarized the national security concerns raised by the Department of 
Defense (DOD). We concluded that the national security impacts 
outweighed the benefits to the species. There is no mechanism in the 
ESA to exclude just the military and not other Federal agencies from 
the impacts of critical habitat designation. The exclusion of the 
military sites from critical habitat designation, however, does not 
mean that Federal actions in those areas are exempt from all 
consultation obligations under section 7 of the ESA. Federal agencies 
must ensure their actions do not jeopardize the continued existence of 
listed species - a requirement that applies regardless of whether 
specific areas are designated as critical habitat. We will continue to 
be concerned about activities that harm Southern Resident killer whales 
and their habitat, regardless of whether that habitat is designated. We 
expect that where critical habitat is designated, it will more 
precisely focus our analysis on how the action will alter the habitat 
and how that will affect the ability of the habitat to support species' 
conservation.
    Regarding sonar use, the Navy has operating procedures in place to 
reduce the risk to marine mammals, and these are included in the 
Proposed Conservation Plan for Southern Resident Killer Whales 
(available at www.nwr.noaa.gov). As stated above, the military 
exclusions from critical habitat designation do not affect the Navy's 
obligations under section 7 of the ESA to consult on Federal actions 
that may affect Southern Resident killer whales regardless of whether 
they occur in designated critical habitat.
    Comment 13: We received several requests for additional exclusions 
based on impacts to national security. Commenters requested exclusions 
for refineries and ports in Puget Sound. Refinery operators requested 
exclusions because of their role in producing the petroleum products 
used by the U.S. military. These commenters felt that being subject to 
critical habitat consultations would limit the ability of refineries to 
efficiently provide oil to the military in a situation of national 
security. They also argued critical habitat designations would affect 
security, maintenance, operations and emergency preparedness at 
refineries. Those requesting national security exemptions for the ports 
located in Puget Sound argued that ports play an essential role in 
protecting the United States from terrorist threats because they are a 
primary entry and exit point. The commenters also argued there would be 
economic impacts to designating critical habitat in ports, making the 
ports less competitive. The commenters felt that, given that Southern 
Residents do not often use port waters, and many of the areas are 
already designated as critical habitat for Chinook salmon, an 
additional critical habitat designation would impact ports and not 
offer benefits to killer whales.
    Response: We concluded that the national security benefits of 
exclusion outweighed the conservation benefits of designation for 18 
military sites. The Navy and Army provided information on the direct 
and potentially substantial impacts to national security including 
preventing, restricting, or delaying training or testing exercises or 
access to sites; restricting, or delaying activities associated with 
vessel/facility maintenance and ordnance loading; and delaying response 
time for ship deployments and overall operations. The DOD did not 
identify any concerns regarding impacts to national security beyond 
those at their sites. National security is the primary mission for the 
military, and we considered the high priority placed on national 
security when weighing the benefits of exclusion against conservation 
benefits. Refineries and ports, however, are commercial operations, and 
the national security concerns associated with these sites are a part 
of their overall activities. We consider that designating critical 
habitat in these areas will provide some conservation benefit through 
ESA section 7 consultations on refinery and port actions that may 
impact habitat by affecting prey availability, contaminant levels, or 
passage. There was

[[Page 69060]]

insufficient information to demonstrate that any national security 
benefits outweigh the conservation benefits.

National Environmental Protection Act of 1969 (NEPA)

    Comment 14: We received one comment arguing that the agency must 
comply with the NEPA to inform the public and help ensure that critical 
habitat designations do not result in unintended environmental 
consequences.
    Response: We believe that in Douglas County v. Babbitt, 48 F.3d 
1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996), the Ninth 
Circuit Court of Appeals correctly interpreted the relationship between 
NEPA and critical habitat designation under the ESA. The Court rejected 
the suggestion, identical to that raised by commenters, that 
irreconcilable statutory conflict or duplicative statutory procedures 
are the only exceptions to application of NEPA to Federal actions. The 
Court held that the legislative history of the ESA demonstrated that 
Congress intended to displace NEPA procedures with carefully crafted 
procedures specific to critical habitat designation. Further, the 
Douglas County Court held that the critical habitat mandate of the ESA 
conflicts with NEPA in that, although the Secretary may exclude areas 
from critical habitat designation if such exclusion would be more 
beneficial than harmful, the Secretary has no discretion to exclude 
areas from designation if such exclusion would result in extinction. 
The Court noted that the ESA also conflicts with NEPA's demand for 
impact analysis, in that the ESA dictates that the Secretary ``shall'' 
designate critical habitat for listed species based upon an evaluation 
of economic and other ``relevant'' impacts, which the Court interpreted 
as narrower than NEPA's directive. Finally, the Court, based upon a 
review of precedent from several circuits including the Fifth Circuit, 
held that an environmental impact statement is not required for actions 
that do not change the physical environment.

Delay Designation Pending Resolution of Legal Issues

    Comment 15: One commenter requested that we delay designation of 
critical habitat until clarification of outstanding legal issues, 
including litigation over the listing of the Southern Resident DPS and 
the definition of ''adverse modification'' of critical habitat, are 
resolved.
    Response: Litigation is currently pending that challenges our 
listing of Southern Resident killer whales as endangered under the ESA 
[Washington State Farm Bureau and Building Industry Association of 
Washington v. NMFS]. Pending a decision on that challenge, the whales 
are listed, and the ESA requires that we designate critical habitat 
within one year of listing. Past court decisions on the agency's 
regulatory definition of adverse modification have no effect on the 
statutory requirement to designate critical habitat.

Coordination with Canada

    Comment 16: We received a number of comments regarding the use of 
Canadian waters by Southern Residents. These commenters felt we should 
coordinate with Canada on our efforts for protecting Southern Residents 
and their habitat.
    Response: We have some sighting data for Southern Residents in 
Canadian waters, and while our regulations limit us to designating 
critical habitat in areas under U.S. jurisdiction, we will continue to 
coordinate with Canada on both critical habitat designated in U. S. 
waters and recovery planning on both sides of the border.

Critical Habitat Identification and Designation

    Section 3 of the ESA defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed * * *, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed * * *, upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the 
terms ``conserve,'' ``conserving,'' and ``conservation'' to mean: ``to 
use, and the use of, all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this chapter are no longer 
necessary.''
    Section 4 of the ESA requires that, before designating critical 
habitat, we consider economic impacts, impacts on national security, 
and other relevant impacts of specifying any particular area as 
critical habitat. The Secretary may exclude any area from critical 
habitat if he determines that the benefits of exclusion outweigh the 
benefits of designation, unless excluding an area from critical habitat 
will result in the extinction of the species concerned. Once critical 
habitat is designated, section 7(a)(2) of the ESA requires that each 
Federal agency, in consultation with us and with our assistance, ensure 
that any action it authorizes, funds, or carries out is not likely to 
result in the destruction or adverse modification of critical habitat.

Physical or Biological Features Essential to Conservation (Primary 
Constituent Elements)

    Joint NMFS-FWS regulations for listing endangered and threatened 
species and designating critical habitat at 50 CFR 424.12(b) state that 
the agencies ``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 (hereafter also 
referred to as ``Essential Features' or ``Primary Constituent 
Elements'/PCEs').'' 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 
generally, (5) habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species. These regulations state that we shall focus 
on essential features within the specific areas considered for 
designation. These features ''may include, but are not limited to, the 
following: spawning sites, feeding sites, seasonal wetland or dryland, 
water quality or quantity, geological formation, vegetation type, tide, 
and specific soil types.''
    Fish are the major dietary component of resident killer whales in 
the northeastern Pacific, with 22 species of fish and 1 species of 
squid (Gonatopsis borealis) known to be eaten (Scheffer and Slipp, 
1948; Ford et al., 1998; 2000; Ford and Ellis, 2005; Saulitis et al., 
2000). Observations from this region indicate that salmon are clearly 
preferred as prey (Ford et al., 1998; Ford and Ellis, 2005) and are 
likely consumed in large amounts, as indicated by the estimates of 
total salmon consumed by the Southern Resident killer whale DPS. 
Sufficient prey abundance is necessary to support individual growth to 
reach sexual maturity and reproduction, including lactation and 
successful rearing of calves.
    In addition to a sufficient biomass of prey species, the prey must 
not have

[[Page 69061]]

amounts of contaminants that exceed levels that can cause mortality or 
reproductive failure in Southern Residents. Because of their long life 
span, position at the top of the food chain, and their blubber stores, 
killer whales accumulate high concentrations of contaminants. 
Organochlorines, such as PCBs and DDT, and many other chemical 
compounds including polychlorinated napthalenes, brominated flame 
retardants, PAHs, dioxins, furans, and heavy metals, are a concern 
because of their ability to induce immune suppression, reproductive 
impairment, or other physiological damage, as observed in several 
species of marine mammals (Albers and Loughlin, 2003; Boland et al., 
1998; Bergman et al., 1992; De Guise et al., 2003; Jepson et al., 1999; 
Reijinders, 2003; Ross, 2002).
    To move between important habitat areas, find prey, and fulfill 
other life history requirements, the Southern Resident killer whales 
require open waterways that are free from obstruction. In-water 
structures that block passage, for example, could affect Southern 
Resident killer whale movement.
    Killer whale habitat use is dynamic, and specific breeding, 
calving, or resting areas have not been documented. Births occur 
largely from October to March, but may take place in any month (Olesiuk 
et al., 1990), and, therefore, potentially in any part of the whales' 
range. Southern Residents are highly mobile and can travel up to 100 
miles (160 km) in a 24-hour period (Baird, 2000), allowing rapid 
movements between areas. These movements likely coincide with prey 
concentrations. Individual knowledge of productive feeding areas and 
other special habitats is probably important in the selection of 
locations visited and is likely a learned tradition passed from one 
generation to the next (Ford et al., 1998).
    Based on this natural history of the Southern Resident killer 
whales and their habitat needs, the physical or biological features of 
Southern Resident killer whale habitat are:
    (1) Water quality to support growth and development;
    (2) Prey species of sufficient quantity, quality and availability 
to support individual growth, reproduction and development, as well as 
overall population growth; and
    (3) Passage conditions to allow for migration, resting, and 
foraging.

Geographical Area Occupied by the Species

    Photo-identification studies, tracking by boats, and opportunistic 
sightings have provided considerable information on the ranges and 
movements of Southern Resident killer whales since the early 1970s. 
Ranges are best known from late spring to early autumn (May-September), 
when survey effort is greatest. During this period, all three Southern 
Resident pods- J, K and L- are regularly present in the Georgia Basin 
(defined as the Georgia Strait, San Juan Islands, and Strait of Juan de 
Fuca) (Heimlich- Boran, 1988; Felleman et al., 1991; Olson, 1998; 
Osborne, 1999).
    While in inland waters during summer months, all of the pods 
concentrate their activity in Haro Strait, Boundary Pass, the southern 
Gulf Islands, the northeastern end of the Strait of Juan de Fuca, and 
several localities in southern Georgia Strait (Heimlich-Boran, 1988; 
Felleman et al., 1991; Olson, 1998; Ford et al., 2000). Pods commonly 
occur and are observed foraging in areas where salmon frequent, 
especially during the times of year salmon are migrating to their natal 
rivers (Heimlich-Boran, 1986, 1988; Nichol and Shackleton, 1996). 
Notable concentrations include Haro Strait and Boundary Passage, the 
southern tip of Vancouver Island, Swanson Channel off North Pender 
Island, and the mouth of the Fraser River delta, which is visited by 
all three pods in September and October (Felleman et al., 1991; Ford et 
al., 2000). These sites are major corridors for migrating salmon.
    Individual pods are generally similar in their preferred areas of 
use (Olson, 1998), although some seasonal and temporal differences 
exist in areas used. All three pods typically arrive in May or June and 
spend most of their time in inland waters until departing in October or 
November. However, K and L pods make frequent trips lasting a few days 
to the outer coasts of Washington and southern Vancouver Island during 
this time period (Ford et al., 2000). During early autumn, Southern 
Resident pods, especially J pod, routinely expand their movements into 
Puget Sound, probably to take advantage of chum and Chinook salmon runs 
(Osborne, 1999). Additional recent studies have identified finer scale 
pod differences in seasonal movement patterns and use of core areas 
(Hauser, 2006).
    There are no confirmed sightings of Southern Resident killer whales 
inside Hood Canal in the 1990-2003 sighting database. On one occasion 
in 1995, acoustic recordings from Dabob Bay were identified as J pod 
vocalizations (Unger, 1997). Although additional historical sightings 
and recordings from the 1970s and earlier were provided during the 
comment period, we do not consider this sufficient evidence of presence 
to find Hood Canal ''within the geographical area occupied by the 
species at the time of listing.'' (Transient killer whales, in 
contrast, have been observed in Hood Canal on multiple occasions and 
have remained in Hood Canal for extended periods in the last several 
years.)
    In the critical habitat proposed rule we did not consider extremely 
shallow waters of Puget Sound (less than 20 feet (6.1 m) deep relative 
to the extreme high water line) to be within the geographical area 
occupied by the species and requested information during the public 
comment period. The public and a scientific researcher provided 
accounts and photographs of Southern Resident killer whales using some 
shallow areas. The information received is not sufficient to consider 
all shallow areas as occupied. The final critical habitat designation 
is consistent with the proposed rule and does not include waters 
shallower than 20 feet (6.1 m) based on extreme high tide. Tidal 
fluctuations vary at locations throughout the critical habitat areas, 
but generally the shallow areas not included in the critical habitat 
designation are very shallow (5-10 feet (1.5-3 m)) in some tidal 
conditions and can even be exposed at very low tides. During some tidal 
conditions these areas are not accessible by the whales, and we do not 
have data indicating that these areas are frequently used by whales. We 
used this same shoreline data for the final rule, which is readily 
available from the Washington Department of Natural Resources, to 
display and calculate the critical habitat areas as we did in the 
proposed rule.
    During the late fall, winter, and early spring, the ranges and 
movements of the Southern Residents are less well known. J pod 
continues to occur intermittently in the Georgia Basin and Puget Sound 
part of this time, but its location during apparent absences is 
uncertain (Osborne, 1999). One sighting of this pod was made off Cape 
Flattery, Washington, in March 2004 (Krahn et al., 2004). Prior to 
1999, K and L pods followed a general pattern in which they spent 
progressively smaller amounts of time in inland waters during October 
and November and departed them entirely by December of most years 
(Osborne, 1999). Sightings of both groups passing through the Strait of 
Juan de Fuca in late fall suggested that activity shifted to the outer 
coasts of Vancouver Island and Washington (Krahn et al., 2002), 
although it is unclear if the whales spend a substantial portion of 
their time in this area or simply transit to other locations.

[[Page 69062]]

    While there are considerable data on the use of inland waters of 
Washington, there is very little information on the movements of 
Southern Resident killer whales off the coast. Areas of activity of all 
pods are virtually unknown during their absences from inland waters. In 
the last 30 years of study, there are only 28 confirmed sightings in 
outside waters (Krahn et al., 2004; NWFSC unpubl. data). The majority 
of these sightings were opportunistic, with most occurring within 10 
miles (16.1 km) of shore, and we do not know how far from shore the 
Southern Residents range. Several new sightings occurred during the 
last five years, when effort was increased with dedicated ship surveys 
and expanded volunteer coastal sighting networks. Our knowledge of the 
southern and northern boundaries of the range has expanded with these 
new sightings from California and the Queen Charlotte Islands in recent 
years. At this time there are few data on how the whales are using 
offshore areas; however, some of the sightings included observations of 
feeding.
    There is an active research effort underway to identify coastal and 
offshore distribution of Southern Residents. We have increased outreach 
efforts to gather sighting information from coastal communities, vessel 
operators, and pilots along the coasts of Oregon, Washington, and 
British Columbia. In addition, researchers are conducting dedicated 
ship surveys to locate the whales and observe their activities outside 
of Puget Sound. The research program is a long-term effort, but we hope 
to greatly increase the number of coastal observations in the next five 
years. As new information is collected on the coastal and offshore 
distribution and habitat use, we hope to fill in the data gaps about 
the important habitat features of these coastal and offshore areas.
    NMFS regulations at 50 CFR 424.12(h) state: ``Critical habitat 
shall not be designated within foreign countries or in other areas 
outside of United States jurisdiction.'' Although the Southern 
Residents' range includes inland waters of Canada, we are not proposing 
these areas for designation.

Specific Areas within the Geographical Area Occupied by the Species

    We reviewed the available information on Southern Resident 
distribution, habitat use, and habitat needs in a biological report to 
assist in identifying critical habitat (NMFS, 2006a). Within the 
geographical area occupied by the Southern Resident killer whales we 
have identified three specific areas that contain essential habitat 
features. We have divided the inside waters of Washington State into 
specific areas based on the habitat features and the use patterns of 
the Southern Resident killer whales.
    We analyzed Southern Resident killer whale sightings data from The 
Whale Museum (Osborne, 2005; The Whale Museum Orca Master, 1990-2003) 
to assist in identifying specific areas based on habitat use patterns 
by the whales. The Whale Museum data are predominantly opportunistic 
sightings from a variety of sources, including public reports, 
commercial whale watching industry pager system, Soundwatch, Lime Kiln 
State Park land-based observations, and compilations of independent 
researcher reports. The whales are identified as belonging to a 
particular pod when possible, and sightings of transient or offshore 
whales are not included in the database. The data set does not account 
for level of effort by season or location, and, therefore, the sampling 
and data are biased (Osborne, 2005). The 1990-2003 Whale Museum data 
set is, however, the most comprehensive long-term data available to 
evaluate broad-scale whale distribution in inland waters at this time 
(with a total number of sighting records of 22,509). In order to 
evaluate frequency of use, our analysis of the sightings was limited to 
one unique location sighting, per location, per day to reduce the bias 
introduced by multiple sightings of the same whales in the same 
location on the same day (total number of unique sightings per day is 
11,836). For the majority of the killer whale sightings the location 
reported was not an exact point location (Lat./Long.), and all 
locations were subsequently assigned to a center point in a quadrant 
system (Osborne, 2005). Almost half of the data is from the Whale Watch 
pager system created by the commercial whale watch industry and 
available to subscribers. A validation of recent pager data revealed 
greater than 90 percent accuracy in locating whales (Hauser et al., 
2006).
    From the sightings and other data, we identified three ``specific 
areas,'' within the geographical area occupied by the species, that 
contain PCEs. We considered presence and movements of the whales, 
behavioral observations and studies, and other information to verify 
that one or more of the physical or biological features, or PCEs, can 
be found in these three areas. In some cases where direct data on PCEs 
were not available, we relied on distribution patterns of the whales to 
infer presence of PCEs.
    Area 1. Core Summer Area - Bordered to the North and West by the 
U.S./Canadian border, Area 1 includes the waters surrounding the San 
Juan Islands, the U.S. portion of the Southern Strait of Georgia, and 
areas directly offshore of Skagit and Whatcom counties. Prey species, 
one of the PCEs, are present in Area 1. Runs of salmon passing through 
Area 1 include Chinook, chum, coho, pink, and sockeye salmon, which 
have all been identified as prey for Southern Residents (Ford et al., 
1998; Ford and Ellis, 2005; NWFSC, unpubl. data). The Strait of Juan de 
Fuca, Haro Strait, and Georgia Strait are relatively narrow channels 
and concentrate salmon returning from the Pacific Ocean to spawn in 
U.S. and Canadian rivers. In particular, Area 1 lies near the mouth of 
the Fraser River, which has the largest salmon runs in the Georgia 
Basin/Puget Sound region (Northcote and Atagi, 1997).
    Occurrence of Southern Residents in Area 1 coincides with 
concentrations of salmon. Southern Resident killer whales have been 
sighted in Area 1 during every month of the year, but sightings are 
more consistent and concentrated in the summer months of June through 
August. The Whale Museum database from 1990-2003 contains 11,836 unique 
sightings after duplicate locations on the same date are excluded. Of 
these, 8,508 are in U.S. waters, and 85 percent of the U.S. sightings 
are in Area 1. Although sighting effort in Area 1 is extensive during 
the summer months as compared to other areas, which biases the data, 
the strength of the summer use pattern would undoubtedly persist if 
accounting for sighting effort. The largest number of sightings in 
Washington's inland waters is from Haro Strait off the west side of San 
Juan Island. There are over 1,200 unique sightings from 1990-2003 in 
one quadrant off the west side of San Juan Island.
    Much of the behavioral research on Southern Residents takes place 
within Area 1. Southern Residents are observed exhibiting a variety of 
behaviors in this area, including travel, forage, social, and play 
behaviors. Resident whales spend 50-67 percent of their time foraging 
(Heimlich Boran, 1988; Ford, 1989; Morton, 1990; Felleman et al., 
1991). Opportunities to forage are presumed to be a major factor 
attracting Southern Residents to Area 1, particularly in the summer 
months when it is considered a primary feeding area for all three pods 
(J, K, and L).
    Area 2. Puget Sound - south from Deception Pass Bridge, entrance to 
Admiralty Inlet, Hood Canal Bridge. Southern Resident killer whale 
occurrence in Area 2 has been correlated with fall salmon runs, a prey-

[[Page 69063]]

related PCE. Feeding has been observed in Area 2 (NWFSC, unpubl. data), 
though few behavioral studies have been conducted in this area. During 
the fall, Southern Residents, especially J pod, expand their movements 
into Puget Sound, likely taking advantage of chum and Chinook salmon 
runs (Osborne, 1999). A fall chum run was suggested as the likely 
reason for an extended presence of members of L pod in Dyes Inlet 
during October and November of 1997.
    Southern Resident killer whales have been sighted in parts of Area 
2 in all seasons despite limited search effort. The presence of 
Southern Residents in Area 2 is intermittent, with the smallest number 
of sightings in May-July. There are different sighting patterns in Area 
2 for the three pods. In the most southern portion of Area 2, south of 
Tacoma Narrows Bridge, there have been only a small number of Southern 
Resident sightings from October-January, with one additional sighting 
in April.
    Area 3. Strait of Juan de Fuca - Deception Pass Bridge, San Juan 
and Skagit County lines to the northeast, entrance to Admiralty Inlet 
to the southeast, U.S./Canadian border to the north, Bonilla Point/
Tatoosh Island line to the West. All pods regularly use the Strait of 
Juan de Fuca for passage from Areas 1 and 2 to outside waters in the 
Pacific Ocean. Area 3 is predominantly a passage used to access outer 
coastal water feeding grounds, including Swiftsure and La Perouse 
Banks, off Tofino, British Columbia, and off Westport, as well as other 
areas with unknown usage, such as the coast of northern California. 
Recent observations at Westport coincided with presence of a spring 
Chinook salmon run, although other species were also likely present 
(NWFSC, unpubl. data). The presence of migrating salmonids in the 
Strait of Juan de Fuca suggests that feeding might occur during times 
the whales are transiting. However, the whales are not known to spend 
long periods in localized areas in the Strait. Sightings of the 
Southern Residents in Area 3 are limited, particularly on the U.S. side 
of the international boundary, as there is little observation effort in 
the area, particularly to the west toward the Bonilla Point/Tatoosh 
Island line. Even with a small number of actual sightings, we can infer 
that the whales are using this corridor, and the passage PCE is present 
in Area 3 based on the inland and coastal sightings of whales. The 
Strait of Juan de Fuca is not the only transit corridor between inland 
waters and coastal British Columbia, and the whales occasionally use 
the Strait of Georgia and Johnstone Strait in Canadian waters as an 
alternate route.

Special Management Considerations

    The specific areas within the geographical area occupied by a 
species meet the definition of critical habitat only if they contain 
physical or biological features that ``may require special management 
considerations or protection.'' Agency regulations at 50 CFR 424.02(j) 
define ``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.'' Several forms of human activity have the potential to affect 
the habitat of killer whales and, specifically, the PCEs that are 
essential to their conservation.
    Most salmon stocks throughout the Northwest are at a fraction of 
their historic levels. Historically, overfishing was a major cause of 
decline. More recently the major cause is loss of freshwater habitat. 
Poor ocean conditions over the past two decades reduced populations 
already weakened by the degradation and loss of freshwater and estuary 
habitat, fishing pressures, hydropower system management, and hatchery 
practices.
    Continued regulation of contaminants and pollution in Puget Sound 
is also necessary to protect the prey PCE for Southern Residents 
through management schemes, such as the National Pollutant Discharge 
Elimination System (NPDES). Contaminants enter marine waters and 
sediments from numerous sources, but are typically concentrated near 
areas of high human population and industrialization. Once in the 
environment these substances proceed up the food chain, accumulating in 
long-lived top predators like Southern Resident killer whales. Chemical 
contamination through the food chain continues to be a potential threat 
to Southern Resident killer whales, despite the enactment of modern 
pollution controls in recent decades, which were successful in 
reducing, but not eliminating, the presence of many contaminants in the 
environment.
    Oil spills are another source of contamination that can have long-
lasting impacts on habitat (although the primary concern with oil 
spills is the potential for direct injury to the whales). The 
Environmental Protection Agency and U.S. Coast Guard oversee the Oil 
Pollution Prevention regulations promulgated under the authority of the 
Federal Water Pollution Control Act. There is a Northwest Area 
Contingency Plan, developed by the Northwest Area Committee, which 
serves as the primary guidance document for oil spill response in 
Washington and Oregon.
    Southern Residents are highly mobile and use a variety of areas for 
foraging and other activities, as well as for traveling between these 
areas. Human activities can interfere with movements of the whales and 
impact the passage PCE. In particular, vessels may present obstacles to 
whale passage, causing the whales to swim further and change direction 
more often, which potentially increases energy expenditure for whales 
and impacts foraging behavior (although this effect of vessels is 
primarily a direct effect on the whales rather than an effect on their 
habitat).
    The PCEs identified for this designation may require special 
management considerations or protection. Fishery management, vessel 
activities, and water quality management are all activities that have 
the potential to affect the PCEs by altering prey abundance, prey 
contamination levels, and passage between areas. The proposed rule 
included information regarding which features may require special 
management considerations or protection for each of the three specific 
areas designated as critical habitat (71 FR 34571; June 15, 2006).

Coastal and Offshore Areas

    We have few data on Southern Resident distribution and habitat use 
of coastal and offshore areas in the Pacific Ocean. While we know that 
the whales occupy these waters for a portion of the year and they are 
considered part of the geographical area occupied by the species, we do 
not have detailed information about distribution, behavior, and 
habitat. While we can infer that some of the PCEs, such as prey, must 
be present to support the whales, we do not have sufficient data to 
describe them adequately and identify ''specific areas'' with those 
features. Based on the difficulties of determining the presence of the 
PCEs in specific offshore areas, we cannot assess the human activities 
affecting them or the special management considerations for their 
protection. At this time we are not designating coastal or offshore 
areas, though we do recognize that they are important for the Southern 
Resident killer whales. There is an active research program to fill the 
data gaps regarding coastal and offshore distribution and habitat 
features, and we anticipate obtaining additional data in the coming 
years. We will consider new information as it becomes available to

[[Page 69064]]

inform future considerations of critical habitat for Southern 
Residents.

Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines critical habitat to include 
``specific areas outside the geographical area occupied'' if the areas 
are determined by the Secretary to be ``essential for the conservation 
of the species.'' Regulations at 50 CFR 424.12(e) specify that NMFS 
``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.'' At the present time we have not identified any areas outside 
the geographical area occupied by the species that are essential for 
its conservation, and, therefore, we are not designating any unoccupied 
areas.

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 an ESA section 7 
consultation. Such activities include, but are not limited to, fishery 
management practices, vessel traffic, dredging and disposal, sub-marine 
cable/pipeline installation and repair, oil and gas exploration, 
pollutant discharge, and oil spill prevention and response.
    This critical habitat designation will provide Federal agencies, 
private entities, and the public with clear notification of critical 
habitat for Southern Resident killer whales and the boundaries of the 
habitat. This designation will also assist Federal agencies and others 
in evaluating the potential effects of their activities on critical 
habitat and in determining if ESA section 7 consultation with NMFS is 
needed. Consistent with recent agency guidance on conducting adverse 
modification analyses (NMFS, 2005), we will apply the statutory 
provisions of the ESA, including those in section 3 that define 
``critical habitat'' and ``conservation,'' to determine whether a 
proposed action might result in the destruction or adverse modification 
of critical habitat.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA provides that the Secretary shall 
consider certain impacts before designating critical habitat: ``the 
Secretary shall designate critical habitat . . . on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, impact to national security, and any other relevant 
impact of specifying any particular area as critical habitat.'' The 
Secretary has the discretion to exclude an area from designation if he 
determines the benefits of exclusion (that is, avoiding the impact that 
would result from designation) outweigh the benefits of designation 
based upon best scientific and commercial data. The Secretary may not 
exclude an area from designation if exclusion will result in the 
extinction of the species. Because the authority to exclude is 
discretionary, exclusion is not required for any area.
    Section 4(b)(2) of the ESA calls for balancing the benefits of 
designation against the economic, national security, and other benefits 
of exclusion, and our considerations under section 4(b)(2) were 
described in the proposed rule and in a supporting report (NMFS, 
2006c). We considered the conservation benefits to the species of 
designating areas, the economic benefits of excluding each of the three 
areas, and the national security benefits of excluding 18 particular 
military sites owned or controlled by the DOD.

Benefits of Designation

    The primary benefit of designation is that section 7 of the ESA 
requires all Federal agencies to ensure their actions are not likely to 
destroy or adversely modify the designated habitat. This is in addition 
to the requirement that all Federal agencies ensure their actions are 
not likely to jeopardize the species' continued existence. Another 
benefit of designation is that it provides notice of areas and features 
important to species conservation, and information about the types of 
activities that may reduce the conservation value of the habitat, which 
can be effective for education and outreach. Critical habitat 
designation may also trigger protection under state or local 
regulations.
    In addition to the direct benefits of critical habitat designation 
to the killer whales, there may be ancillary benefits. These other 
benefits may be economic in nature, or they may be expressed through 
beneficial changes in the ecological functioning of Puget Sound. For 
example, Puget Sound supports an active whale watching industry, and so 
an increase in the killer whale population could increase the economic 
value of that activity. Another example could be the increased 
viability of Puget Sound salmon populations if their harvest is reduced 
to assure a larger prey supply for killer whales. Yet another example 
could be reduced levels of pollution in Puget Sound.
    At this time we lack information that would allow us either to 
quantify or monetize the benefits of designation for the whales, and 
have determined the qualitative conservation benefits of designating 
each of the three particular areas identified as critical habitat for 
Southern Residents. We assessed the benefit of designating the three 
areas based on: the physical or biological features of each area, the 
Southern Residents' use of each area (including how frequently they are 
present), the Federal activities in each area that might trigger an ESA 
section 7 consultation, the likelihood that we would seek a 
modification of those activities, the strength of the connection 
between those activities and habitat modification, and educational 
effects of designation. These considerations for each area are 
summarized in tables in the 4(b)(2) report (NMFS, 2006c) and the 
proposed rule (71 FR 34571; June 15, 2006).
    The benefit of designation also depends on the inherent 
conservation value of the area. The habitat areas for these killer 
whales are unique and irreplaceable. It is difficult to separate the 
value of any one of the areas: each of the three areas supports a 
distinct aspect of the whales' life history, and the conservation 
function of each area complements the conservation function of the 
others. Therefore, designation of each particular area benefits the 
conservation function of the other areas. For all of the reasons 
discussed, we consider the benefit of designation of each area to be 
high.

Economic Impacts (Economic Benefits of Exclusion)

    An economic report describes in detail the actions we assumed may 
be affected, the potential range of changes we might seek in those 
actions, and the estimate of economic impacts that might result from 
such changes. For salmon fishing, we considered it too speculative to 
predict any particular level of reduction, and so considered the total 
value of salmon fishing in Puget Sound. If any reduction in fishing 
were to be required as a result of critical habitat designation, it 
would be some portion of that total. We considered it too speculative 
at this time to postulate likely consultations on water quality 
management actions, and what changes we might seek in those actions. 
Although we were only able to quantify the baseline for any economic 
impacts for potential modifications to fishing, this does not imply 
that harvest is the most important activity affecting the

[[Page 69065]]

abundance of the salmon PCE. As noted previously, salmon abundance is 
affected by a host of activities, which would be considered in ESA 
section 7 consultations. In the ESA section 4(b)(2) report we 
acknowledge that there are additional costs for programs associated 
with salmon conservation and and habitat restoration aside from costs 
associated with any harvest reduction, although we could not attribute 
these costs to the designation of critical habitat for southern 
resident killer whales. In addition, if fisheries were impacted, any 
potential reductions in harvest would be evaluated to ensure that they 
were consistent with the ESA, treaty fishing rights, treaty trust 
obligations, and relevant court cases.

Balancing the Benefits and Economic Impacts of Designation

    Section 4(b)(2) of the ESA requires that we balance the benefit of 
critical habitat designation against the economic benefit of exclusion 
for each particular area. 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 the educational aspects of 
designation will address those threats. If a threat bears a closer 
relationship to the adverse modification prohibition of section 7, we 
can begin to understand and give weight to the incremental benefit of 
designation beyond the protection provided by listing and the jeopardy 
prohibition. We have identified the threats that face each area and the 
likelihood that the adverse modification prohibition will enhance our 
ability to address those threats.
    We listed the whales as endangered, citing, among other reasons, 
``the ongoing and potentially changing nature of pervasive threats, in 
particular, disturbance from vessels, the persistence of legacy toxins 
and the addition of new ones into the whales' environment, and the 
potential limits on prey availability (primarily salmon) given 
uncertain future ocean conditions.'' As described above, designation of 
critical habitat will enhance our ability to address some of these 
threats, either through an ESA section 7 consultation or through 
ongoing public outreach and education. Because some of these threats 
bear a stronger relationship to adverse modification than to jeopardy, 
we also believe there is an incremental benefit of designation beyond 
the protection afforded by the jeopardy prohibition.
    As stated above, the benefit of designation also depends on the 
inherent conservation value of the area. The habitat areas for these 
killer whales are unique and irreplaceable. It is difficult to separate 
the value of any one of the areas: each of the three areas supports a 
distinct aspect of the whales' life history, and the conservation 
function of each area complements the conservation function of the 
others. Therefore, designation of each particular area benefits the 
conservation function of the other areas. For all of the reasons 
discussed above, we consider the benefit of designation of each area to 
be high.
    The benefit of exclusion of an area depends on some of the same 
factors - the likelihood of an ESA section 7 consultation and the 
extent to which an activity is likely to change as a result of that 
consultation. As with the benefit of designation side of the equation, 
if a threat bears a closer relationship to the adverse modification 
prohibition of section 7, we can begin to understand and give weight to 
the incremental cost of designation (benefit of exclusion) beyond the 
cost associated with listing and the jeopardy prohibition. In balancing 
the potential costs of designation, we also considered the nature of 
the threats and the relevance of section 7's adverse modification 
prohibition to each threat. Because adverse modification and jeopardy 
bear an equally strong relationship to fishing, and because some 
changes in fishing are likely as a result of consultation, we gave 
these costs of designation moderate weight. We recognize that adverse 
modification bears the strongest relationship to water quality 
management, but we presently lack sufficient data to estimate an 
economic impact. We also recognize that we have not monetized 
(quantified) the costs that may be associated with the education 
benefit of designation with respect to vessel traffic.
    We conclude that the economic benefits of excluding each particular 
area do not outweigh the conservation benefits of designating each 
particular area as critical habitat, given the endangered status of the 
whales, the uniqueness of the habitat, the fact that threats to habitat 
were a primary concern leading to our endangered finding, and the fact 
that designation will enhance the ability of an ESA section 7 
consultation to protect the habitat.

Impacts on National Security

    Prior to listing Southern Resident killer whales under the ESA, we 
contacted the DOD by letter and identified 18 military sites, 
previously addressed during salmon and steelhead habitat designations, 
that potentially overlapped with areas under consideration for Southern 
Resident killer whale critical habitat: (1) Naval Undersea Warfare 
Center, Keyport; (2) Naval Ordnance Center, Port Hadlock (Indian 
Island); (3) Naval Fuel Depot, Manchester; (4) Naval Air Station, 
Whidbey Island; (5) Naval Station Everett; (6) Naval Hospital 
Bremerton; (7) Fort Lewis (Army); (8) Pier 23 (Army); (9) Puget Sound 
Naval Ship Yard; (10) Strait of Juan de Fuca naval air-to-surface 
weapon range, restricted area; (11) Strait of Juan de Fuca and Whidbey 
Island naval restricted areas; (12) Admiralty Inlet naval restricted 
area; (13) Port Gardner Naval Base restricted area; (14) Port Orchard 
Passage naval restricted area; (15) Sinclair Inlet naval restricted 
area; (16) Carr Inlet naval restricted area; (17) Port Townsend/Indian 
Island/Walan Point naval restricted area; and (18) Crescent Harbor 
Explosive Ordnance Units Training Area.
    These 18 military sites overlap with areas we found to meet the 
definition of critical habitat for the Southern Resident killer whale 
DPS. These 18 sites include shore-based facilities, nearshore areas 
around structures such as docks and piers, and offshore areas in Puget 
Sound where the Navy has security restrictions, and they cover 
approximately 112 square miles (291 sq km) out of the total 2,687 
square miles (6,959 sq km) under consideration as critical habitat for 
Southern Residents. The total area considered was recalculated for the 
final rule and was updated from 2,676 square miles (6,931 sq km) in the 
proposed rule, to 2,687 square miles (6,959 sq km) for the final rule. 
The shore-based sites cover 81 miles (130 km) of shoreline out of the 
total 2,081 miles (3,349 km) of shoreline considered for critical 
habitat designation.
    The DOD confirmed that the 18 sites are owned or controlled by the 
DOD, identified the types of military activities that take place in the 
areas, and provided an assessment as to whether designation of critical 
habitat would affect military readiness. The Army and Navy concluded 
that critical habitat designation at any of these sites would likely 
impact national security by diminishing military readiness. The DOD 
requested that we consider conducting an ESA section 4(b)(2) analysis 
to determine whether all of the sites could be excluded from 
designation because the benefits of exclusion outweigh the benefits of 
designation. The possible impacts to national security include: 
preventing, restricting, or delaying training or

[[Page 69066]]

testing exercises or access to sites; restricting or delaying 
activities associated with vessel/facility maintenance and ordnance 
loading; and delaying response times for ship deployments and overall 
operations.

Balancing the Benefits of Designation with National Security Impacts

    The benefit of excluding these particular areas is that the DOD 
would only be required to comply with the jeopardy prohibition of ESA 
section 7(a)(2) and not the adverse modification prohibition. The DOD 
maintains that the additional commitment of resources in completing an 
adverse modification analysis, and any change in its activities to 
avoid adverse modification of critical habitat, would likely reduce its 
readiness capability. Given that the DOD is currently actively engaged 
in training, maintaining, and deploying forces in the current war 
effort, this reduction in readiness could reduce the ability of the 
military to ensure national security.
    We assessed the benefit of designating these areas of overlap based 
on: the physical or biological features of each area, the Southern 
Residents' use of each area (including how frequently they are 
present), the Federal activities in each area that might trigger an ESA 
section 7 consultation, the likelihood that we would seek a 
modification of those activities, and the strength of the connection 
between those activities and habitat modification. The benefit of 
designation is that the section 7 requirement regarding adverse 
modification would focus our section 7 consultations on essential 
physical and biological features of the whales' habitat, particularly 
where the Federal activity has a more direct impact on habitat features 
and a less direct impact on individual killer whales.
    We considered the overlap of killer whale habitat within the 
boundaries of military sites; the conservation value of that habitat; 
and the types of Federal activities in those areas that would likely 
undergo ESA section 7 consultation. We also considered the high 
priority placed on national security, the potential for critical 
habitat designation to have some impact on military readiness, and the 
fact that, collectively, these areas represent relatively small 
percentages of the total habitat and none of them are located in Area 
1, the core summer area. Based on our consideration of these factors, 
we conclude that the national security benefits of exclusion outweigh 
the conservation benefits of designation for each of the 18 sites, and 
we are not designating these DOD sites as critical habitat.

ESA Section 4(b)(2) Conclusions

    We conclude that the economic benefits of excluding each particular 
area do not outweigh the conservation benefits of designating each 
particular area as critical habitat, given the endangered status of the 
whales, the uniqueness of the habitat, the fact that threats to habitat 
were a primary concern leading to our endangered finding, and the fact 
that designation will enhance the ability of an ESA section 7 
consultation to protect the habitat.
    We considered the overlap of killer whale habitat within the 
boundaries of military sites; the conservation value of that habitat; 
and the types of Federal activities in those areas that would likely 
undergo ESA section 7 consultation. We also considered the high 
priority placed on national security, the potential for critical 
habitat designation to have some impact on military readiness, and the 
fact that, collectively, these areas represent relatively small 
percentages of the total habitat and none of them are located in Area 
1, the core summer area. Based on our consideration of these factors, 
we conclude that the national security benefits of exclusion outweigh 
the conservation benefits of designation for each of the 18 sites, and 
we are not designating these DOD sites as critical habitat.
    We did not identify other relevant impacts of designation beyond 
economic impacts and impacts on national security.

Critical Habitat Designation

    We are designating approximately 2,560 square miles (6,630 km) of 
marine habitat within the area occupied by Southern Resident killer 
whales in Washington. The proposed areas are occupied and contain 
physical or biological features that are essential to the conservation 
of the species and may require special management considerations or 
protection. Some of these areas overlap with military sites, which are 
not designated as critical habitat because they were determined to have 
national security impacts that outweigh the benefit of designation and 
were therefore excluded under ESA section 4(b)(2). We determined that 
the economic benefits of exclusion of any of the areas do not outweigh 
the benefits of designation, and we are therefore not excluding any 
areas based on economic impacts. Section 4(b)(2) does not allow the 
agency to exclude areas if exclusion will result in extinction of the 
species. We are excluding only a small percentage of the whales' 
habitat because of impacts to national security. Given this small 
percentage, we conclude that the exclusion of these areas will not 
result in extinction of the Southern Resident killer whale DPS. No 
unoccupied areas are currently designated as critical habitat.

Required Determinations

Regulatory Planning and Review

    This final rule has been determined to be significant for purposes 
of Executive Order (E.O.) 12866. A final economic report and ESA 
section 4(b)(2) report document our consideration of alternatives to 
rulemaking as required by this Executive Order. We have analyzed the 
economic effects of various management scenarios. These are described 
in the economic report supporting this rulemaking, available at http://www.nwr.noaa.gov/.

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

    Under the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We have prepared a 
final regulatory flexibility analysis (FRFA), which is part of the 
Economic Analysis (NMFS, 2006b). The FRFA incorporates the Initial 
Regulatory Flexibility Analysis (IRFA), which was part of the draft 
economic analysis that accompanied the proposed rule to designate 
critical habitat. The FRFA also incorporates comments received on the 
IRFA and on the economic impacts of the rule generally. Responses to 
comments are provided above in the preamble to the rule, and any 
necessary corresponding changes were made to the FRFA. The analysis is 
summarized below.
    A statement of the need for and objectives of this final rule is 
provided earlier in the preamble and is not repeated here. This final 
rule will not impose any recordkeeping or reporting requirements.
    At the present time, insufficient information exists regarding the 
cost structure and operational procedures and strategies in the sectors 
that may be directly impacted by the critical habitat designation. 
Further, significant

[[Page 69067]]

uncertainty exists regarding the activities that may trigger an ESA 
section 7 consultation or how those activities may be modified as a 
result of consultation. Bearing in mind these limitations, we 
considered which of the potential economic impacts we analyzed might 
affect small entities. These estimates should not be considered exact 
estimates of the impacts of critical habitat to individual businesses. 
There are 344 entities engaged in fishing activities in the region, 332 
of which are considered ''small entities.''
    Although ESA section 7 consultations may also occur on water 
quality management activities, at this time it is too speculative to 
estimate the type and number of activities and the potential 
modifications that could result from a consultation.
    The RFA, as amended by SBREFA, requires us to consider alternatives 
to the proposed regulation that will reduce the impacts to small 
entities. We considered and rejected the alternative of not designating 
critical habitat for Southern Resident killer whales because such an 
approach does not meet the legal requirements of the ESA. We also 
considered alternatives in which each of the three critical habitat 
areas is excluded under section 4(b)(2) of the ESA. Each of these 
alternatives may have minimized impacts on small businesses by reducing 
consultation costs and potential project modifications necessitated 
pursuant to section 7(a)(2) of the ESA once an area is designated as 
critical habitat. As described earlier in this rulemaking, the 
magnitude of these impacts is difficult to predict. However, because we 
did not find that the economic benefits of exclusion outweigh the 
benefits of designation for any of the three specific areas, we did not 
have discretion to exclude any these areas pursuant to the ESA. We 
therefore rejected each of these alternatives as inconsistent with the 
ESA.

E.O. 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking any action that promulgates or is expected to 
lead to the promulgation of a final rule or 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 find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above (NMFS, 2006b).

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; Aid to Families 
with Dependent Children 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 which receive Federal funding, assistance, permits or 
otherwise require approval or authorization from a Federal agency for 
an action may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Furthermore, to the extent that non-Federal entities are indirectly 
impacted because they receive Federal assistance or participate in a 
voluntary Federal aid program, the Unfunded Mandates Reform Act would 
not apply; nor would critical habitat shift the costs of the large 
entitlement programs listed above to state governments.
    (b) Due to the prohibition against 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 proposed 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 Washington. The 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 for the survival of the Southern Resident killer whales 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 
Executive Order. We

[[Page 69068]]

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 Southern Resident killer whales.

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 OMB approval is required under the Paperwork 
Reduction Act. This final rule will not impose recordkeeping or 
reporting requirements on state or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act of 1969 (NEPA)

    NMFS has determined that an environmental analysis as provided for 
under NEPA for critical habitat designations made pursuant to the ESA 
is not required. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995), cert. denied, 116 S.Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    The long-standing and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and 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.
    None of the designated critical habitat occurs on tribal lands. 
However, critical habitat does overlap with Usual and Accustomed 
hunting and fishing grounds. The designation of critical habitat for 
Southern Resident killer whales has the potential to affect tribal 
trust resources, particularly in relation to salmon, an important 
tribal resource and PCE for the whales. Should it be necessary to 
reduce Puget Sound fisheries, a reduction in tribal fisheries would 
only occur consistent with the principles established in the 
Secretarial Order, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act.'' We will 
continue to consult with affected tribes regarding designated critical 
habitat.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our website at http://www.nwr.noaa.gov/ and is available upon 
request from the NMFS office in Seattle, Washington (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: November 21, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, part 226, title 50 of the Code 
of Federal Regulations is amended to read as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority: 16 U.S.C. 1533.

0
2. Add Sec.  226.206, to read as follows:


Sec.  226.206  Critical habitat for the Southern Resident killer whale 
(Orcinus orca).

    Critical habitat is designated for the Southern Resident killer 
whale as described in this section. The textual descriptions of 
critical habitat in this section are the definitive source for 
determining the critical habitat boundaries. The overview map is 
provided for general guidance purposes only, and not as a definitive 
source for determining critical habitat boundaries.
    (a) Critical Habitat Boundaries. Critical habitat includes three 
specific marine areas of Puget Sound, Washington, within the following 
counties: Clallam, Jefferson, King, Kitsap, Island, Mason, Pierce, San 
Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical habitat 
includes all waters relative to a contiguous shoreline delimited by the 
line at a depth of 20 feet (6.1 m) relative to extreme high water in 
each of the following areas:
    (1) Summer Core Area: All U.S. marine waters in Whatcom and San 
Juan counties; and all marine waters in Skagit County west and north of 
the Deception Pass Bridge (Highway 20) (48[deg]24' 25'' N./
122[deg]38'35'' W.).
    (2) Puget Sound Area: All marine waters in Island County east and 
south of the Deception Pass Bridge (Highway 20) (48[deg]24' 25'' N./
122[deg]38'35'' W.), and east of a line connecting the Point Wilson 
Lighthouse (48[deg]8'39'' N./122[deg]45'12'' W.) and a point on Whidbey 
Island located at 48[deg]12'30'' N./122[deg]44'26'' W.; all marine 
waters in Skagit County east of the Deception Pass Bridge (Highway 20) 
(48[deg]24' 25'' N./122[deg]38'35'' W.); all marine waters of Jefferson 
County east of a line connecting the Point Wilson Lighthouse 
(48[deg]8'39'' N./122[deg]45'12'' W.) and a point on Whidbey Island 
located at latitude 48[deg]12'30'' N./122[deg]44'26'' W., and north of 
the Hood Canal Bridge (Highway 104) (47[deg]51'36'' N./122[deg]37'23'' 
W.); all marine waters in eastern Kitsap County east of the Hood Canal 
Bridge (Highway 104) (47[deg]51'36'' N./122[deg]37'23'' W.); all marine 
waters (excluding Hood Canal) in Mason County; and all marine waters in 
King, Pierce, Snohomish, and Thurston counties.
    (3) Strait of Juan de Fuca Area: All U.S. marine waters in Clallam 
County east of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N./124[deg]43'32'' W.), Tatoosh Island, Washington 
(48[deg]23'30'' N./124[deg]44'12'' W.), and Bonilla Point, British 
Columbia (48[deg]35'30'' N./124[deg]43'00'' W.); all marine waters in 
Jefferson and Island counties west of the Deception Pass Bridge 
(Highway 20) (48[deg]24' 25'' N./122[deg]38'35'' W.), and west of a 
line connecting the Point Wilson Lighthouse (48[deg]8'39'' N./
122[deg]45'12'' W.) and a point on Whidbey Island located at 
48[deg]12'30'' N./122[deg]44'26'' W.
    (b) An overview map of final critical habitat for the Southern 
Resident killer whale follows.
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    (c) Primary Constituent Elements. The primary constituent elements 
essential for conservation of the Southern Resident killer whale are:
    (1) Water quality to support growth and development;
    (2) Prey species of sufficient quantity, quality, and availability 
to support individual growth, reproduction, and development, as well as 
overall population growth; and (3) Passage conditions to allow for 
migration, resting, and foraging.
    (d) Sites owned or controlled by the Department of Defense. 
Critical habitat does not include the following areas owned or 
controlled by the Department of Defense, or designated for its use, in 
the State of Washington, including shoreline, nearshore areas around 
structures such as docks and piers, and marine areas:
    (1) Naval Undersea Warfare Center, Keyport;
    (2) Naval Ordnance Center, Port Hadlock (Indian Island);
    (3) Naval Fuel Depot, Manchester;
    (4) Naval Air Station, Whidbey Island;
    (5) Naval Station, Everett;
    (6) Naval Hospital Bremerton;
    (7) Fort Lewis (Army);
    (8) Pier 23 (Army);
    (9) Puget Sound Naval Ship Yard;
    (10) Strait of Juan de Fuca naval air-to-surface weapon range, 
restricted area;
    (11) Strait of Juan de Fuca and Whidbey Island naval restricted 
areas;
    (12) Admiralty Inlet naval restricted area;
    (13) Port Gardner Naval Base restricted area;
    (14) Port Orchard Passage naval restricted area;
    (15) Sinclair Inlet naval restricted area;
    (16) Carr Inlet naval restricted area;
    (17) Port Townsend/Indian Island/Walan Point naval restricted area; 
and
    (18) Crescent Harbor Explosive Ordnance Units Training Area.

[FR Doc. 06-9453 Filed 11-28-06; 8:45 am]
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