## Programmatic Biological Opinion

For Polar Bears ( Ursus maritimus )

On

Beaufort Sea Incidental Take Regulations

Photo by Susanne Miller, USFWS

June 23, 2008

Prepared by:

U.S. Fish and Wildlife Service

Fairbanks Fish and Wildlife Field Office

110 12 th Ave, Room 110 Fairbanks, Alaska 99701

### Table of Contents

List of Abbreviations ..................................................................................................4

1. Introduction ...........................................................................................5

MMPA Terms ...........................................................................................6

ESA Terms ...........................................................................................7

2. Description of the Proposed Action .......................................................................7 Summary of Propos ed Regulations ..................................................................8 History of Marine Mammal Incidental Take Regulations in Alaska ............................8 Current Industry Incidental Take Regulation Request .............................................9 Description of Geographic Region ....................................................................9 Description of Industry Activities ........................................................................9 Exploration Activities ........................................................................10 Development Activities .....................................................................12

Production Activities ........................................................................13 Information Required to Obtain a Letter of Authorization .......................................13 Letter of Authorization-Specific Measures ........................................................14

Conclusions under MMPA ...........................................................................16

3. Status of Species ............................................................................................17 Description and Ecological Adaptations ...........................................................17

Distribution .............................................................................................18

Polar Bear Movements ...............................................................................19 Feeding Habits .........................................................................................19 Breeding Biology ......................................................................................20

Survival .................................................................................................22 Population Status .......................................................................................23 Southern Beaufort Sea Population .........................................................23 Chukchi Sea Population .....................................................................23 Northern Beaufort Sea Population .........................................................24

4. Environmental Baseline ....................................................................................25 Loss of Sea Ice and Climate Change ...............................................................25 Hunting .................................................................................................29 Oil and Gas Development ............................................................................29

Bear-Human Interactions .............................................................................30

Environmental Contaminants ........................................................................31

Disease ..................................................................................................32

Predation ................................................................................................33

25. Effects of the Action on the Species .....................................................................33

Noise Disturbance .....................................................................................34 Stationary Sources ...........................................................................37

Mobile Sources ...............................................................................37 Physical Obstruction ..................................................................................37

Human Encounters ....................................................................................40 Effects on Prey .........................................................................................40 Oil and Fuel Spills ....................................................................................40 Impacts on the Physical Environment ..............................................................43 Interdependent and Interrelated Actions ............................................................43

6. Cumulative Effects .........................................................................................43

Subsistence Harvest ...................................................................................43

Marine Vessel Traffic .................................................................................44 Summary of Cumulative Effects.....................................................................44

7. Conclusion ...................................................................................................44 Service Findings under ESA ........................................................................44

8. Administration of the Progr ammatic Biological Opinion .............................................46

9. Incidental Take Statement .................................................................................47

10. Reasonable and Prudent Measures .....................................................................48

11. Terms and Conditions ....................................................................................49

12. Conservation Recommendations ........................................................................49

13. Re-initiation Notice .......................................................................................50

14. Literature Cited ...........................................................................................51

Figure 1. Geographic Area of Beaufort S ea Incidental Take Regulations ..............................63

Appendix 1. Summary of Consultation Activities .........................................................64

Appendix 2. LOA/ITS Content ...............................................................................65

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### List of Abbreviations

AOGA = Alaska Oil & Gas Association BLM = Bureau of Land Management BO = biological opinion BOP = blowout preventer BPXA = BP Exploration (Alaska), Inc. CFR = Code of Federal Regulations COE = U.S. Army Corps of Engineers CS = Chukchi Sea polar bear population DLP = defense of life & property

EA = Environmental Assessment EIS = Environmental Impact Statement ESA = Endangered Species Act of 1973, as amended

FFWFO = Fairbanks Fish & Wildlife Field Office (of the Service, Fairbanks, AK) FLIR = Forward Looking Infrared imagery FR = Federal Register Industry = oil and gas industry

ITS = Incidental Take Statement

IUCN = International Union fo r the Conservation of Nature LOA = Letter of Authorization (und er sec. 101(a)(5) of the MMPA) MMM = Marine Mammal Management Office (of the Service, Anchorage, AK)

MMO = marine mammal observer MMPA = Marine Mammal Protection Act of 1972, as amended MMS = Minerals Management Service NB = Northern Beaufort Sea polar bear population NEPA = National Environmental Policy Act

NPR-A = National Petroleum Reserve-Alaska NWT = Northwest Territory OCs = organochlorine compounds

OCS = outer continental shelf PBSG = Polar Bear Specialist Group POC = Plan of Cooperation POPs = persistent organic pollutants PVA = population viability analysis Regulations = incidental take regulations for oil and gas explor ation activities in the Beaufort Sea and adjacent northern coast of Alaska SB = Southern Beaufort Sea polar bear population SDC = steel drilling caisson Secretary = Secretary of the Department of the Interior

Service = U.S. Fish and Wildlife Service USGS = U.S. Geological Survey

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### 1. Introduction

This document transmits the U.S. Fish and Wild life Service’s (Service) programmatic biological opinion (BO) in accordance with section 7 of th e Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq ., ESA), on effects to the polar bear ( Ursus maritimus ) of existing incidental take regulations for year-round oil and gas explor ation, development, and production activities in the Beaufort Sea and adjacent nort hern coast of Alaska (Regulati ons). No other threatened or endangered species will be affected by the action. The Beaufort Sea Regulations were finalized on August 2, 2006 (71 FR 43925) and provide authoriza tion under the Marine Mammal Protection Act of 1972, as amended ((16 U.S.C. 1361 et seq. , MMPA) for the non-lethal, incidental take of small

numbers of Pacific walruses ( Odobenus rosmarus divergens ) and polar bears (MMPA term definitions provided below). The Beaufort Sea Regulations are in effect for five years from date of issuance and remain effective through August 2, 2011.

The Service proposed to list the polar bear range-wide as a threatened species under the ESA on January 9, 2007 (72 FR 1064, January 9, 2007) (ESA term definitions provided below). Critical

habitat was not determinable at that time. Wh en a species is proposed for listing, the Service utilizes section 7(a)(4) of the ESA that pr ovides a conference mechan ism for identifying and resolving potential conflicts be tween a proposed action and proposed species or proposed critical

habitat. While consultations are required when the proposed action may affect listed species, a conference is required only when the proposed action is likely to jeopardize the continued existence of a proposed species or destroy or adversely modify proposed critical habitat. However, Federal action agencies may request a conference on any pr oposed action that may affect proposed species or proposed critical habitat. B ecause it was determined by the Servic e that activities authorized in the Regulations may affect polar bears, a conf erence was initiated in January 2008. While the conference opinion was being drafted, the final rule listing the polar bear as a threatened species was published on May 15, 2008 (73 FR 28211). The c onference opinion, therefore, was finalized

as a BO.

The Regulations were promulgated by the Servic e’s Marine Mammal Management (MMM) office. ESA section 7 conferences/consultations on proposed /listed species that primarily inhabit northern Alaska are conducted by the Se rvice’s Fairbanks Fish and Wi ldlife Field Office (FFWFO). Therefore, this consultation for polar bears on the Beaufort Sea Regulations is an intra-Service consultation, which considers effects of Service actions on listed species.

The Service has responsibility for the polar bear under the MMPA and ESA. Section 101(a)(5) of

MMPA allows for the incidental take of small numbers of marine mamm als, in response to requests by U.S. citizens engaged in a specified activity (o ther than commercial fishing) in a specified geographic region; section 7(o)(2) of ESA allows for exemptions, under certain circumstances, to the section 9 take prohibitions for endangered and th reatened species incident al to otherwise lawful

activities that have Federal involvement or contro l. If a marine mammal species is listed as endangered or threatened under the ESA, the requirements of both MMPA and ESA must be met

before the incidental take can be authorized.

For the Service to consider al lowing incidental take under MMPA , a written request for specific regulations must be submitted to the Service cont aining detailed information on the activity as a

5whole and impacts of the total poten tial take. The Service evaluates the impacts resulting from all entities conducting the specified activity, not just th e impacts from one entity’s activities. If the Service finds total taking expected from the specified activity will have a negligible impact on the species or stock and will not have an unmitigable adverse impact on the availability of the species or stock for subsistence uses, specific regulations will be issued that esta blish permissible methods of taking and other means of aff ecting the least practicable advers e impact on the species. After regulations are issued, individua l Letters of Authorization (LOAs ) must be obtained from the Service by those conducting projec ts under the activity (50 CFR 18.27(f)). LOAs may contain project-specific mitigation measur es and “will specify the period of validity” (§18.27(f)(4)). LOAs for exploration and development projects are issu ed under the Beaufort Sea Regulations for up to one year. Production fields are issued LOAs fo r the duration of the Regulations, where annual monitoring reports are required annually in order for the LOA to remain valid.

For the Service to exempt incidental take under ESA, the Service must conclude that the take associated with a Federal action (1 ) is not likely to jeopa rdize listed species, or destroy or adversely modify designated critical habita t, (2) results from an otherw ise lawful activity, and (3) is incidental to the purpose of the action. Further, the exemption provided as a result of formal

consultation must include measures to minimize take. Therefore, consistent with ESA and regulations at 50 CFR §402.14(i), inci dental take statements for ma rine mammals are not included in formal consultations until regul ations, authorizations, or permits under section 101(a)(5) of the

MMPA are in effect.

Generally, if an action meets the MMPA standard of negligible im pact in a specified geographic area of consideration, there should be little potent ial for the action to jeopardize the species. Indeed, during early conference di scussions, the Service concluded that the Regulations are not likely to pose jeopardy to polar bears under ESA, particularly because the species was proposed range wide, and the negligible impact determinati on for the Regulations was made at the affected stock level (i.e., Southern Beau fort Sea stock). See Appendix 1 for a summary of consultation

activities.

Definitions of key terms used in the Regulations and this BO are listed below. Additional

definitions for MMPA terms can be found in 50 CFR Part 18; additional definitions for ESA terms can be found at 50 CFR §402. An administrative reco rd of this consultation is on file at the FFWFO in Fairbanks, AK.

MMPA Terms: Incidental, but not intentional, taking - take events that are infreque nt, unavoidable, or accidental. This does not mean that the taking must be unexpected.

Negligible impact - an impact resulting from the specifi ed activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on

annual rates of recruitment or survival.

Small numbers – refers to a portion of a marine mammal sp ecies or stock whose taking would have a negligible impact on that species or stock.

6Take - to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine

mammal. For activities other than military readiness activities or scientific resear ch conducted by or on behalf of the Federal government, the MMPA defines harassment as any act of pursuit, torment, or annoyance which: (1) has the potentia l to injure a marine mammal or marine mammal stock in the wild (the MMPA calls this Level A harassment ); or (2) has the pot ential to disturb a

marine mammal or marine mammal stock in the w ild by causing disruption of behavioral patterns, including, but not limited to, migration, breathi ng, nursing, breeding, feedi ng, or sheltering (the

MMPA calls this Level B harassment ).

Unmitigable adverse impact - is an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level in sufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) pl acing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allo w subsistence needs to be met.

ESA Terms:

Incidental take – take of listed fish or wildlife species th at results from, but is not the purpose of, carrying out an otherwise lawf ul activity conducted by a Federa l agency or applicant.

Jeopardize the continued existence - to engage in an action that reasonably would be expected, directly or indirectly, to redu ce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reduc ing the reproduction, numbers, or distribution of that species.

Listed species – any species of fish, wildlife or plant which has been determined to be endangered

or threatened under section 4 of the ESA.

May affect - the appropriate conclusion when a pr oposed action may pose any effects on listed species or designated critical habitat.

Take - to harass, harm, pursue, hunt, shoot, wound, k ill, trap, capture, or collect or attempt to engage in any such conduct. Harm is further defined by the Servi ce as an act which actually kills or injures wildlife, and may incl ude significant habitat modification or degradation that results in death or injury to listed species by significantl y impairing behavioral pa tterns such as breeding, feeding, or sheltering. Harass is defined by the Service as acti ons that create the likelihood of injury to listed species to such an extent as to significantly di srupt normal behavior patterns which include, but are not limited to, br eeding, feeding or sheltering.

Threatened species – any species which is likely to beco me an endangered species within the foreseeable future throughout all or a significant portion of its range.



### 2. Description of the Action

This section provides a description of the Fe deral action. In this case, the action under

consideration is the Service’s Beaufort Sea Incide ntal Take Regulations under section 101(a)(5) of

7the MMPA, not the Industry activities themselves (although those activities are described herein). Neither the action nor this progr ammatic BO provides authorization for the actual activities associated with oil and gas exploration, developmen t, or production. Industry activities included in the Beaufort Sea Regulations will need to acquire all appropriate Federal and/or State permits in order to legally proceed.

The Service will conduct separate consultations as needed on other agency actions and Industry activities in the Beaufort Sea, as they are proposed. For exampl e, the Service not ified Minerals Management Service (MMS) that incremental act ions associated with Lease Sale 193 in the Chukchi Sea will require a polar bear ESA consu ltation if the species is listed (USFWS 2007), as would oil and gas development within the National Petroleum Reserve–Alaska (NPR–A). In the Beaufort Sea, although subsequent Federal approval s (such as MMS issuing an exploration permit) would require consultation, we would expect su ch subsequent consultations to be greatly streamlined as long as the action is fully consistent with the Beaufort Sea MMPA Regulations.

This description of the action is based upon th e Final Rule Beaufort Sea Incidental Take Regulations (71 FR 43925, August 2, 2006), the Final Environmental Assessment (EA) of the Final Rule (dated June 2006), and LOAs that have b een issued by the Service since the Regulations’ effective start date. The action promulgates Regul ations for walruses an d polar bears, both of which are presented here for completeness because th ey are frequently inter-r elated. However, this BO only considered effects of the Regulations on the polar bear.

Summary of Proposed Regulations The Regulations authorize the non-lethal, incidental , unintentional take of small numbers of Pacific walruses and polar bears during year-round o il and gas industry (Industry) exploration, development, and production activities in the Beau fort Sea and adjacent northern coast of Alaska. The rule is in effect for up to five years from the date of issuance. The Regulations include permissible methods of non-lethal taking, measures to ensure the least prac ticable adverse impact on the species and the availability of these sp ecies for subsistence uses, and requirements for monitoring and reporting. Th e action also includes subsequent issuance by the Service of LOAs to conduct specific projects under the provisions of th ese Regulations when requested by citizens of the United States. In the Regulations, the Service finds the total expected takings of walruses and polar bears during Industry activiti es will have a negligible impact on these species and will not have an unmitigable adverse impact on the availa bility of these species for subsistence use by

Alaska Natives.

History of Marine Mammal Incident al Take Regulations in Alaska Industry conducts activit ies, such as oil and gas explora tion, development, and production, in

marine mammal habitat that could result in th e taking of marine mammals. Although Industry is under no legal requirement to obtain incidental take authorizations, since 1991, Industry has requested, and the Service has issu ed regulations for, incidental take authorization for conducting

activities in areas of walrus and polar bear habitat. Incidental take regulations for walruses and polar bears in the Beaufort Sea were issued previously from 1993 to present: November 16, 1993 (58 FR 60402); August 17, 1995 (60 FR 42805); Ja nuary 28, 1999 (64 FR 4328); February 3, 2000 (65 FR 5275); March 30, 2000 (65 FR 16828); N ovember 28, 2003 (68 FR 66744); and August 2, 2006 (71 FR 43926). In the adjacent Chukchi Sea, incidental take regulations have been issued

8previously for the period of 1991–1996 (56 FR 27443; June 14, 1991) and currently for the period of 2008-2013 (73 FR 33211, June 11, 2008).

Current Industry Incidental Take Regulation Request On August 23, 2002, the Alaska Oil and Gas Asso ciation (AOGA), on behalf of its members, (Alyeska Pipeline Service Comp any; Marathon Oil Company; An adarko Petroleum Corporation Petro Star, Inc.; BP Exploration (Alaska), Inc.; Phillips Alaska, Inc.; Chev ronTexaco Corporation; Shell Western E&P, Inc.; Cook Inlet Pipe Line Company; Tesoro Alaska Company; Cook Inlet Region, Inc.; Total E&P USA; EnCana Oil & Ga s (USA), Inc.; UNOCAL; Evergreen Resources, Inc.; Williams Alaska Petroleum, Inc.; ExxonM obil Production Company; XTO Energy, Inc.; and Forest Oil Corporation) requested that the Service promulgate re gulations to allow the non-lethal,

incidental take of small numbers of walruses and polar bears in the Beaufort Sea for a period of five years. AOGA, on behalf of its members, provided an addendum in August 2004. In July 2004, BP Exploration (Alaska), Inc. (BPXA) requested regulations to cover its operations. As, the BPXA request was encompassed by the scope of th e AOGA request, the petitions were combined.

The combined requests were for regulations to allow the incidental, non -lethal take of small numbers of walruses and polar bears in associati on with oil and gas activi ties in the Beaufort Sea and adjacent coastline projected out to the year 2011. The information pr ovided by the petitioners indicated that projected oil and gas activities ove r this timeframe will include offshore and onshore exploration activities an d new and ongoing development and produc tion activities. The petitioners specifically requested that these regulations be issued for non-leth al take. Industr y has indicated that, through implementation of the mitigation measur es, it is confident lethal take will not occur.

Description of Geographic Region The Regulations allow Industry to incidentally take small numbers of walruses and polar bears within the same area, referred to as the Beaufort Sea Region (Fi gure 1), as covered by previous regulations. This region is defined by a nor th-south line through Point Barrow, Alaska, and includes all Alaska coastal areas, St ate waters, and all Outer Continen tal Shelf (OCS) waters east of

that line to the Canadian border. Th e onshore region is the same north-south line at Point Barrow, 40 kilometers (25 miles) inland, and extending east to the Canning River. The Arctic National Wildlife Refuge is not included in the area covered by these regulations. It is noteworthy that the north–south lin e at Point Barrow is the eastern border of the geographic region of the current Chukchi Sea incidental take regulations.

The area described above also constitutes the “ action area” for the purposes of this BO. The “action area” is the area that encompasses all dire ct and indirect effects of a proposed action.

Description of I ndustry Activities This section briefly describes the types and scale of oil and gas activ ities projected to occur in the Beaufort Sea Region over the specified time period (2006–2011). This information is based upon information provided by the petitioners and LOAs issued since the effective date of the Regulations. The Service has used these descripti ons of activity as a basis for its findings. If requests for LOAs exceed the projected scope of activity analyzed under the Regulations, the Service would reevaluate its findings to determine if they continue to be a ppropriate before further

LOAs are issued.

9The Service does not know all specific locations where oil and gas activities will occur over the regulatory period. The location and scope of the specific activities will be determined based on a variety of factors, including th e outcome of future Fe deral and State oil a nd gas lease sales and information gathered through subseq uent exploration activities.

Incidental take regulations do not authorize the placement and location of I ndustry activities; they can only authorize incidental take of walruses and polar bears. A llowing the activity at particular locations is part of the permitting process which is authorized by the lead permitting agency, such as Minerals Management Service (MMS), Army Corps of Engineers (COE), or Bureau of Land Management (BLM). However, the Service can in fluence the placement of infrastructure within projects through mitigation measures in order to minimize disturbanc e and protect polar bears. The specific dates and durations of the individual operations and their geographic locations will be provided to the Service in detail when requests for LOAs are submitted.

Oil and gas activities anticipated and considered in the analysis of the Beaufort Sea Regulations include exploration, development, and production operations of oil and gas reserves, as well as environmental monitoring associated with thes e activities, on the norther n coast of Alaska.

Alaska’s North Slope encompasses an area of 228,644 square km (88,280 square mi) and currently contains 11 oil and gas field un its associated with Industry. These include the Greater Prudhoe Bay, Duck Island, Badami, Northstar, Kuparuk Ri ver, Colville River, Oguruk, Tuvaq, Nikaitchuq, Milne Point, and Point Thomson. These units can encompass exploration, development, and production activities. In addition, so me of these fields include asso ciated satellite oilfields: Sag Delta North, Eider, North Prudhoe Bay, Lisbur ne, Niakuk, Niakuk-Ivashak, Aurora, Midnight Sun, Borealis, West Beach, Polaris, Orion, Tarn, Tabasco, Palm, West Sak, Meltwater, Cascade, Schrader Bluff, Sag River, and Alpine. Additiona l proposed satellite prosp ects identified within or near existing oil and gas field units, such as Pioneer Natural Resource’ s Gwydyr Bay leases and Kerr McGee’s Two Bits Prospect, we re also analyzed in the rule.

Exploration Activities Exploration activities may occur onshore or offshor e and include: geological surveys; geotechnical site investigations; reflective seis mic exploration; vibrator seismic data collection; airgun and water gun seismic data collection; explos ive seismic data collection; ve rtical seismic profiles; subsea sediment sampling; construction and use of drilling structures such as caisson-retained islands, ice islands, bottom-founded structures (steel drilli ng caisson), ice pads and ice roads; oil spill prevention, response, and cleanup; and site restor ation and remediation. Exploration activities could also include the developmen t of staging facilities. The le vel of explorati on activities is expected to be similar to the le vel during the past regulatory periods, although exploration projects may shift to different locations, particularly NPR–A. The location of ne w exploration activities within the geographic region of the rule will, in part, be determined by the following State and Federal oil and gas lease sales:

• State of Alaska Lease Sales : The State of Alaska practices ar ea-wide leasing in which the State annually offers all available State acreage not cu rrently under lease within areas that are already subjected to leasing. North Slope Area-wide Lease Sales are held annually in October. Five

10lease sales have been held as of 2006. As of Ju ly 2004, there are 777 active leases in this area, encompassing 2.4 million acres. Beaufort Sea Ar ea-wide Lease Sales are held annually in

October. Four lease sales ha ve been held as of 2006. As of July 2004, there are 194 active leases in this area, encompa ssing 440,000 acres. Future State of Alaska lease sales will

continue.

• Northeast Planning Area of NPR–AI : Two lease sales have been held in the Northeast Planning

Area of NPR–A. The 1999 lease sale resulted in the sale of 133 tr acts, and the 2002 sale resulted in the sale of 60 tracts. Acreage awarded under these two lease sales totals 1.4 million acres. Thirteen exploratory wells have been dr illed as of 2006. Lands in the Northeast NPR-A were originally made available for leasing pursuant to a 1998 Northeast NPR-A Integrated Activity Plan/Environmental Impact Statement (IAP/EIS) Record of Decision (ROD). In 2006, the Secretary of the Interior amended the 1998 ROD to make additional lands available for leasing, pursuant to an Amended IAP/EIS. In September 2006, the 2006 ROD was vacated by

the U.S. District Court for the District of Al aska. BLM then prepared a Supplemental IAP/EIS

in order to make additional lands available for leasing but to defer from leasing lands northeast of Teshekpuk Lake for 10 years. As of the da te of this BO, the ROD has not been issued.

• OCS Lease Sales : In February 2003, the MMS issued the Final EIS for three lease sales planned for the Beaufort Sea Planning Area in the OCS. Sale 186 was held in September 2003, resulting in the leasing of 34 tracts. Sale 195 was held in March 2005. Sale 202 was held in April 2007. While the disposition of the leases pu rchased is highly speculativ e at this time, it is probable that at least some se ismic exploration and possibly so me exploratory drilling could take place during the 5-year pe riod of the regulations.

Exploratory drilling for oil is an aspect of explora tion activities. Exploratory drilling and associated support activitie s and features include: transportati on to site; setup of up to 100-person camps and support camps (lights, generators, snow removal, water plants, wastewater plants, dining halls, sleeping quarters, mech anical shops, fuel storage, camp moves, landing strips, aircraft support, health and safety facilities, data r ecording facility and co mmunication equipment); building gravel pads; building gravel islands with sandbag and concrete block protection; ice islands; ice roads; gravel hauling; gravel mine site s; road building; pipelines ; electrical lines; water lines; road maintenance; buildings and facili ties; operating heavy equipment; digging trenches; burying and covering pipelines; sea lift; water flo od; security operations; dredging; moving floating drill units; helicopter su pport; and drill ships such as the SD C, CANMAR Explorer III, and the

Kulluk.

During the regulatory period, explora tion activities ar e anticipated to conti nue in the current oil field units, including those projec ts identified by Industry below.

• Oguruk Unit : The Oguruk Unit is located adjacent to and immediately northwest of the Kuparuk River Unit in shallow waters of the Be aufort Sea, near Thetis Island. During the initial analysis of the petiti on, the unit operator, Pioneer Natural Resources, was conducting a feasibility study for the potential development of reservoirs encountered in previous exploration drilling. As of 2008, Pioneer be gan oil production. Facilities include an offshore production

11island between Thetis Island and the Colvill e River Delta, a 9.2-km (5.7-mi) underground pipeline, where landfall occurs near the mouth of the Kalubik Creek.

• Nikaitchuq Unit : The Nikaitchuq Unit is located near Spy Island, north of Oliktok Point and the Kuparuk River Unit, and northwest of the M ilne Point Unit. The original operator, KerrMcGee Oil and Gas Corporation, drilled three exploratory wells on and immediately adjacent to Spy Island, 6.4 km (4.0 mi) north of Oliktok Point in the ice-covered season of 2004–2005.

ENI Petroleum is the current ow ner, and they are moving to de velop this site as a future production area. Facilities will include one offshore production islands south of the Jones Island group and approximately 21 km (13 mi) of underground pipeline connecting the sites to

a mainland landfall near Oliktok Point and one mainland production facility at Oliktok Point.

• Two Bits Prospect and Nearshore Stratigr aphic Test Well, Eastern Beaufort Sea : Since promulgation of the Regulations, these two projects are no longer proposed.

Exploration activities that occur beyond the current oil field units were also analyzed, including the Industry projects below.

• Shell Exploration and Production Company’s Beaufort Sea Program : Shell Exploration and Production Company has conducted an open water seismic program, which consists of an estimated 4,828 km (3,000 mi) of 3D seismic line acquisition and site clearance surveys for the past two years in the central Beaufort Sea. The open water program involves geotechnical work and will occur between August and October annually, depending on ice and whaling

activities.

• Cape Simpson Support Program; Ukpeagv ik Inupiat Corporation (UIC) : UIC entered into lease agreements with the North Slope Borough to operate North Slope facilities between Prudhoe Bay and Barrow in support of oil and gas exploration activities. UIC is developing a staging area at Cape Simpson, between Smith Bay and Dease Inlet, on the Beaufort Sea coast. The following activities are likely to occur dur ing their operations on the North Slope: marine transportation and barging; fixed and tempor ary camp operations; equipment and materials staging and storage; flight ope rations; ice road construction; and exploration site support.

Development Activities Development activities associated with oil and gas industry operati ons include: road construction; pipeline construction; waterlin e construction; gravel pad c onstruction; camp construction (personnel, dining, lodging, mainte nance shops, water plants, wastew ater plants); transportation (automobile, airplane, and helicop ter traffic); runway construction; installation of electronic equipment; well drilling; drill rig transport; pers onnel support; and demobili zation, restoration, and

remediation.

In the most recent Beaufort Sea Regulations peti tion, the Alpine West Development was identified as an Industry development activit y at the time of analysis. The development and construction of five Alpine satellite drill site s (identified as CD–3 through CD–7), gravel roads, an airstrip, and pipelines was in its second year in 2006. Two of the drill sites, CD–3 (also known as Fiord prospect or CD-North), and CD–4, (also known as the Nanuq prospect or CD South), are in the

12Colville River Delta. The CD–3 dr illsite is located north of CD–1 (Alpine facility) and is proposed to be a roadless development. The remaining dr ill sites are proposed to be connected to CD–1 by road. Three of the drill sites, CD–5 (also known as Alpine West prospect), CD–6 (Lookout prospect), and CD–7 (Spark prospect), are in the NPR–A. Construction of CD–3 and CD–4 drill sites began in winter 2004/2005, w ith production startup for both dr ill sites in late summer 2006.

The three NPR–A drill sites are scheduled for construction from the winter 2007 through winter

2010. All drill sites are scheduled to be in production by summer 2010.

BPXA is planning to develop the Liberty oil field in the Beaufort Sea usin g extended reach drilling technology from onshore. The Liberty prospect is located approximately 8.9 km (5.5 mi) offshore in 6 meters (20 feet) of water, approximately 13 km (8 mi) east of the Endicott development. The development of Liberty was first proposed in 199 8 when BPXA submitted a plan to the MMS for a production facility on an artificial island in Foggy Island Bay. In 2002, BPXA put the project on hold to review project design and economics after the completion of BPXA’s Northstar project. In August 2005, BPXA moved the project onshore to take advantage of advances in extended reach drilling. Liberty wells will extend as much as 13 km (8 mi) offshore.

Production Activities Production activities encompass activ ities in support of oil and ga s production within the oil and gas field units. These include: personnel transpor tation (automobiles, airpla nes, helicopters, boats, rolligons, cat trains, and snowm obiles); and unit operations (build ing operations, oil production, oil transport, restoration, remediation, and improvement of oil field operations). Production activities are permanent, year-round activities, whereas ex ploration and development activities are usually temporary and seasonal.

Production units and facilities an alyzed for the Regulations included those operated by BPXA (Greater Prudhoe Bay, Endicott, Milne Point, Ba dami, Northstar), ConocoPhillips Alaska, Inc. (Kuparuk River, Alpine), and Pioneer Natural Resources Alaska, Inc. (Oguruk). Two other production projects are in development and have the potential to be pr oducing oil within the timeframe of the regulations. They are the Ni kaitchuq Development, operated by ENI Petroleum and the Liberty Development, operated by BPXA. If the activities and potential impacts are within the scope of activities and impacts analyzed in this rule, LOAs may be issued for the activity.

Proposed production activities will increase the total area of the industrial footprint by the addition of new facilities, such as drill pads, pipelines, and support facilities, in the geographic region; however, oil production volume is e xpected to decrease during the 5- year regulatory period, despite new fields initiating production. Th is is due to currently produci ng fields reducing output and new fields not replacing that output. Current monitori ng and mitigation measures, described later, will be kept in place.

Information Required to Obtain a Letter of Authorization Per 50 CFR §18.124(c) of the Regula tions, applicants for a LOA must include the following:

(1) A description of the activity, the dates and dur ation of the activity, th e specific location, and the estimated area affected by that activity, i.e., a Plan of Operation.

13(2) A site-specific plan to monitor the effects of the activity on the behavi or of polar bear and Pacific walrus that may be present during the ongoing activities. The monitoring program

must document the effects to these marine ma mmals and estimate the actual level and type of take. The monitoring requirements will vary depending on the activity, the location, and the time of year.

(3) A site-specific polar bear aw areness and interaction plan.

(4) A Plan of Cooperation to mitigate potentia l conflicts between the proposed activity and subsistence hunting, where relevant. This Plan of Cooperation must id entify measures to minimize adverse effects on the availability of polar bear and Pacific walrus for subsistence uses if the activity takes place in or near a traditional subsistence hunting area. Some of these measures may include, but are not lim ited to, mitigation measures described in §18.128.

Letter of Authorization-Specific Measures Mitigation, monitoring and reporting measures are generally required by the Service for each LOA issued under incidental take regulations. Accord ingly, the following will al so be required under the Beaufort Sea Regulations (§18.128):

(a) We require holders of Letters of Authorization to cooperate with us and other designated Federal, State, and local agencies to mon itor the impacts of o il and gas exploration, development, and production activitie s on polar bear and Pacific walrus.

(b) Holders of Letters of Authorization must desi gnate a qualified individu al or individuals to observe, record, and report on the effects of thei r activities on polar be ar and Pacific walrus.

(c) All holders of Letters of Authorization are required to have an appr oved polar bear and/or walrus interaction plan on file with the Se rvice and on-site, and polar bear awareness training will also be required of certain personnel. Interaction plans must include: (1) The type of activity and, where and when the activity will occur, i.e., a Plan of Operation; (2) A food and waste management plan; (3) Personnel training materials and procedures; (4) Site at-risk locations and situations; (5) Walrus/bear observation and reporting procedures; and (6) Bear/walrus avoidance and encounter procedures.

(d) All applicants for a Letter of Authorizati on must contact affected subsistence communities to discuss potential conflicts caused by location, timing, and methods of proposed operations and submit to us a record of communi cation that documents these discussions. If appropriate, the applicant for a Letter of Authorization must also submit to us a Plan of Cooperation that ensures that activities will no t interfere with subsistence hunting and that adverse effects on the availability of polar bear or Pacific walrus are minimized.

(e) Mitigation measures that may be required on a case-by-case basis include:

14(1) The use of trained marine mammal monitors associated with mari ne activities. We may require a monitor on the site of the act ivity or on board drill ships, drill rigs, aircraft, icebreakers, or othe r support vessels or vehicles to monitor the impacts of Industry’s activity on polar bear and Pacific walrus. (2) The use of den habitat map developed by the USGS. A map of potential coastal polar bear denning habitat can be found at: http://www.absc.usgs.gov/research/sis_su mmaries/polar_bears_sis/mapping_dens.htm.
This measure ensures that th e location of potential polar bear dens is considered when conducting activities in the coas tal areas of the Beaufort Sea. (3) The use of Forward Looking Infrared (FLI R) imagery, polar bear scent-trained dogs, or both to determine the presence or abse nce of polar bear dens in area of the activity. (4) Restricting the timing of the activ ity to limit disturbance around dens. (5) Requiring a 1-mile exclusion buffer surrounding known dens. If known occupied

dens are located within an operator’s area of activit y, we will require a 1-mile

exclusion buffer around the den to limit dist urbance or require that the operator

conduct activities after the female bears em erge from their dens. We will review these requirements for extenuating circumstances on a case-by-case basis.

(f) For exploratory and development activities, holders of a Letter of Authorization must submit a report to our Alaska Regional Di rector (Attn: Marine Mammals Management Office) within 90 days after comp letion of activities. For pro duction activities, holders of a

Letter of Authorization must s ubmit a report to our Alaska Regional Director (Attn: Marine Mammals Management Office) by January 15 for the preceding year’s ac tivities. Reports must include, at a minimum, the following information: (1) Dates and times of activity; (2) Dates and locations of polar bear or Pacific walrus activity as related to the monitoring activity; and (3) Results of the monitoring activities required under subsection (g ) of this section, including an estimated level of take.

(g) Monitoring requirements incl ude, but are not limited to: (1) For all activities, all sight ings of polar bears and walrus must be recorded. To the extent possible, the monitor will record group size, age, sex, reaction, duration of interaction, and closest appr oach to Industry activity. (2) Activities within the coast of the geogra phic region may incorpor ate daily polar bear watch logs. (3) Polar bear monitors will be required unde r the monitoring plan if polar bears are known to frequent the area or known polar bear dens are present in the area. Monitors will act as an early detection syst em in regards to proximate bear activity to Industry facilities. (4) Offshore sites may require systematic monitoring protocols for polar bears and

walrus due to their nearshore locations. Systematic monitoring may be implemented to statistically monitor observation trends of walrus or polar bears in the nearshore areas where they usually occur.

15Conclusions under MMPA The Service’s conclusions regarding the amount of incidental take anticipat ed for polar bears (and walruses) and impacts on the spec ies under the Regulations are as follows (summarized from the Beaufort Sea Incidental Take Regulati ons final rule; 71 FR 43925, August 2, 2006):

Based on the best scientific information available, the results of monitoring data from previous regulations, the results of modeling assessments, and the status of the population, the Service found that any incidental take reasona bly likely to result from the effects of oil and gas related exploration, development, and produ ction activities during the period of the rule, in the Beaufort Sea and adjacent northern coast of Alaska will have no more than a negligible impact on polar bears and Pacific walrus. In making this fi nding, the following were considered: (1) the distribution of the species; (2) the biological characteristics of the species; (3) the nature of oil and gas industry activities; (4) the potential effects of Industry activities and potential oil spills on the species; (5) the probability of oil spills occurring; (6) the document ed impacts of i ndustry activities and oil spills on the species, (7) mitigation measures that will be conditions in the LOAs and minimize effects; and (8) other da ta provided by monitoring programs th at have been in place since 1993. Specific to polar bears, the Service found tha t: (1) the Beaufort Sea polar bear population is widely distributed throughout its range, and (2) polar bears typi cally occur in low numbers in

coastal and nearshore areas where most Industry activitie s occur. Furthermore, the Service does not expect disturban ces related to activities to affect the rates of recruitment or survival for the polar bear. The Regulations do not authorize lethal take and the Service does not anticipate any

lethal take will occur.

Generic conditions (described in Letter of Authorization-Specific Measures

, above) are attached to each LOA. These conditions minimize interference with normal breeding, feeding, and possible migration patterns to ensure that the effects to the species remain negligible. MMM may add additional measures depending upon site-specific and species-specific concerns. For example, restrictions in denning areas wi ll be applied on a case-by-case basis after assessing each LOA request, and may include requirement s for pre-activity surveys (e.g., ae rial surveys, FLIR surveys, or polar bear scent-trained dogs) to determine the presence or ab sence of denning activity, and/or enhanced monitoring or flight re strictions, such as minimum flight elevations, in known denning areas. MMM analyzes the required plan of operation and interaction plans to ensure that the level of activity and possible take are c onsistent with the finding that to tal incidental take will have a negligible impact on polar bear and Pacific walrus.

It is important to note that while an initial determ ination of negligible impact is made at the time the Regulations are issued (in this case, 2006) based on the best information at the time, each request for a LOA is evaluated to ensure it is co nsistent with this determination. The evaluation consists of the type and scope of the individual project, an analysis of all current species information, including the required monitoring reports from previously issued LOAs, and considers the effects of the individual project when adde d to all current LOAs in the geographic area. Through these means, the type and level of take to polar bears is continuo usly evaluated throughout the life of the Regulations in order to maintain a level of negligible impact.

16

### 3. Status of Species

This section presents biological and ecological information relevant to formation of the BO. Appropriate information on the polar bear’s life history, habitat and distribution, and description of other factors necessary for their survival is includ ed for analysis in later sections. The Range-wide

Status Review of the Polar Bear (Schleibe et al. 2006), final ru le listing the polar bear as a threatened species (73 FR 28211, May 15, 2008), US GS Administrative Reports, other agency reports, published literature, and personal communication with species expert s were utilized in preparing this section.

Description and Ecological Adaptations Polar bears are the largest of the living bear species (DeMaster and Stirling 1981) and occur throughout portions of the Northern Hemisphere where the sea is ice- covered for all or much of the year (Amstrup 2003). Polar bears depend upon sea ice for access to their prey and for other aspects of their life history (Stirli ng and Øritsland 1995; Stirling and Lunn 1997; Amstrup 2003). Because the principle habitat of polar bear s is sea ice, it is considered a marine mammal, and was included in those species covered under the MMPA.

Polar bears are characterized by a large stocky body, with a l onger neck and proportionately

smaller head than other members of the bear fa mily, although without the distinct shoulder hump common to brown bears ( Ursus arctos ). Polar bears exhibit sexual dimorphism, with female body length, skull size, and body mass considerably less than males (Derocher et al. 2005). Adult males have been recorded weighing 654 kilograms ( 1,440 pounds) (Kolenosky et al. 1992), with some individuals estimated at 800 kg (1,760 pounds), but too large for weighing equipment (DeMaster and Stirling 1981). Adult females weigh 181 to 3 17 kg (400 to 700 pounds). Polar bear fur color varies between white, yellow, gray, and brown, and is affected by oxidation or exposure to air, light conditions, and staining due to contact with fats from prey items. The nose, lips, and skin of polar bears is black (DeMaster and Stirling 1981, Amstrup 2003).

Polar bear genetics indicate the species branched off from brown bears and occupied an open niche on the surface of the sea ice during maximal exte nt of the continental ice sheets in the late Pleistocene; based upon molecular genetic techniques, this could have occurred as long as 250,000 years ago (Amstrup 2003). Subse quent behavioral and physical ad aptations have allowed polar bears to increasingly specialize at hunting seals from the surface of the ice (Stirling 1974, Smith 1980, Stirling and Øritsland 1995).

Physical adaptations to life on sea ice include th e whitish pelage with water repellent guard hairs and dense underfur, a short furred snout, and sma ll ears. Polar bear teeth have become very specialized for a carnivorous diet , rather than the omnivorous di et of the brown bear (Amstrup 2003). Their teeth are well suited to grab prey and eat fat from th e meat and hide and less well suited for grinding grasses or other vegetation (Ams trup 2003). Polar bear feet have hair on the bottoms and are large and paddl e-like (Stirling 1988). That adaptation probably assists in swimming and also helps disperse weight and avoid breaking through when walking on thin ice (Stirling 1988). Polar bear claws are shorter and mo re strongly curved than those of brown bears, and larger and heavier than those of black bears ( Ursus americanus ), and appear to be well adapted to traveling over blocks of ice and snow and to securely gripping prey animals (Amstrup 2003).

17Polar bears are well adapted for thermoregulation in the extreme cold conditions of the Arctic (Schliebe et al 2006). Normal body temperature of a resting polar bear is 37.0o Celsius (98.6o Fahrenheit), similar to other mammals (Best 1982, Stirling 1988). A combination of fur and hide properties, and up to 11 centimeter s (4.5 inches) of blubber serve as excellent insulators and maintain body temperatures and metabolic rate s at near normal levels at environmental temperatures of -37o C (-34.6o F) (Stirling 1988). However, polar bears are susceptible to overheating (Best 1982, Stirling 1988). Polar bears radiate heat from their muzzle, nose, ears, footpads, insides of the thighs, and blood vessels in the shoulder region near the skin (Stirling 1988). Polar bears can cool by swimming, because water conducts heat approximately 20 times more efficiently than air (Stirling 1988). Y oung cubs, however, can become chilled by swimming if it cools the body too much (B lix and Lentfer 1979, Stirling 1988). Polar bears also conserve energy by curling into a ball when exposed to extr eme cold, windy weather, or sprawl out to keep cool on warm days (Stirling 1988). Bears in warm ar eas like Hudson Bay also move very little in summer in order to stay cool and conserve en ergy (Knudsen 1978, Derocher and Stirling 1990).

Unlike other species of bears where both sexes may hibernate, only pregnant female polar bears hibernate through the winter (Sti rling 1988, Amstrup 2000). This is specialized winter dormancy,

and not true hibernation. It is typified by a slightly depressed h eart rate and temperature, during

which time the bear does not feed and lives o ff accumulated fat stores (Stirling 1988, Amstrup 2003). Polar bears can also enter a hibernation-like state facultatively, as n eeded (Derocher et al. 2004). This allows polar bears to feed hyperphagi cally (dramatically incr ease food intake to be stored as fat), both seasonally and when an unpredictable opportunity presents itself, and then slow

down their metabolism to make stored fat reserv es last longer during pe riods of food shortage (Derocher et al 1990, Ramsay et al 1991, Stirling and Øritsland 1995). Their metabolic flexibility and ability to digest fat with 98 percent effici ency are important adaptations to the arctic environment, and probably what allows polar bear s to fast the summer months on shore in Hudson Bay (Schliebe et al. 2006).

Distribution Polar bears are distributed througho ut regions of the arctic and s ubarctic waters where the sea is ice-covered for large portions of the year. Patterns in spatial se gregation suggested by telemetry data, along with information from surveys, marki ng studies, and traditional knowledge, resulted in recognition of 19 partially disc rete polar bear groups by th e International Union for the Conservation of Nature (IUCN) Polar Bear Specialist Group (PBSG) for the purposes of management [the distribution of the subgroups is illu strated in the final rule listing the polar bear (73 FR 28212, May 15, 2008; page 28216)]. There is considerable overlap in areas occupied by members of these groups (Amstrup et al. 2005) and the boundaries have been adjusted as new data

are collected.

Two of these populations (Southern Beaufort Sea a nd Chukchi Sea) occur in Alaska, with an area of seasonal intermingling of bot h populations that roughly overla ps with the geographic boundaries of the Beaufort Sea Regulations.

18Polar Bear Movements Information from telemetry studies indicate pol ar bear movements are not random, nor do they passively follow ocean currents on the ice as pr eviously thought (Pedersen 1945, Mauritzen et al. 2003). Movement data come almost exclusively from adult female polar bears because male anatomy (their neck is larger th an their skull) will not accommodate radio collars. Movements of seven male polar bears surgically implanted wi th transmitters in 1996 and 1997 were compared to movements of 104 females between 1985 and 1995 (A mstrup et al. 2001), which indicated males and females had similar activity areas on a monthly basis, but males traveled farther each month (Amstrup et al. 2000b). Activity ar eas have not been determined for many of the populations, and what information is available reflects movement data collected pr ior to the recent changes of retreating ice conditions. In the Beaufort Sea, annual activity areas for individually monitored female bears averaged 149,000 km 2 (57,529 mi 2 ), ranging from 13,000 km 2 to 597,000 km 2 (5,019

mi 2 to 230,503 mi 2 ) (Amstrup et al. 2000b.). Total annual movements by female bears in the Beaufort Sea averaged 3 ,415 km (2,122 mi) and ranged up to 6,200 km (3,853 mi), with movements rate of >4.0 km/hr (2.5 mi/hr) sometimes sustained for long periods, and movements of >50 km/day (31 mi/day) observed (Amstrup et al . 2000b). The mean activity area in the Chukchi Sea, characterized by highly dynamic ice conditions, was 244,463 km 2 (94,388 mi 2 ) (Garner et al. 1990). The average annual distance moved by Chukc hi Sea female bears was 5,542 km (3,444 mi).

Telemetry data from radio-collared females i ndicates some individuals occupy home ranges (or “multi-annual activity areas”) which they seldom leave (Amstrup 2003). The si ze of a polar bear’s home range is determined, in part, by the annua l pattern of freeze-up and br eak-up of sea ice, and therefore by the distance a bear must travel to ob tain access to prey (Stirling 1988, Durner et al. 2004). A bear that has consis tent access to ice, leads ( channels of open wate r though areas of ice)

, and seals may have a relatively small home range , while bears in areas such as the Barents, Greenland, Chukchi, Bering or Baffin seas may have to move many hundreds of kilometers each year to remain in contact with sea ice from whic h they can hunt (Born et al. 1997, Mauritzen et al. 2001, Ferguson et al. 2001, Amstr up 2003, Wiig et al. 2003).

Feeding Habits Polar bears derive essentially all their sustenan ce from marine mammal prey and have evolved a strategy that utilizes the high fat content of marine mamma ls (Best 1985, Amstrup et al. 2007).

Over half the caloric content of a seal carcass is located in the layer of fat between the skin and under laying muscle (Stirling and McEwan 1975). Polar bears show their preference for fat by quickly removing the fat layer from beneath the skin after they catch a seal . High fat intake that can be achieved by specializing on marine mammal prey allows polar bears to thrive in the harsh Arctic environment (Stirling and Derocher 1990, Amstrup 2003).

Over much of their range, polar bears are depe ndent on one species of seal, the ringed seal ( Phoca hispida ). Polar bears occasi onally catch belugas ( Delphinapterus leucas ), narwhals ( Monodon

monocerus ), walrus, and harbor seals ( Phoca vitulina ) (Smith 1985, Calvert and Stirling 1990, Smith and Sjare 1990, Stirling and Øritsland 1995, De rocher et al. 2002). Where common, bearded seals ( Erignathus barbatus ) can be a large part of polar bear diets, and are probably the second most common prey item (Derocher et al. 2002). Walruses can be seasonally important in some parts of the polar bear range (Parovshchikov 1965, Ovsyanikov 1996). However, throughout most of their range, polar bears are most dependent upon ringed seals (Smith and Stirling 1975, Smith

191980), and the relationship between ringed seals and polar bears is so close that the abundance of ringed seals in some areas appears to regulate the density of polar be ars, while polar bear predation in turn, regulates density and reproductive success of ringed seals (Hammill and Smith 1991, Stirling and Øritsland 1995).

Polar bears can rarely catch se als on land or in open water (F urnell and Oolooyuk 1980); rather they consistently catch seals and other marine mammals at the air-ice-water interface, where aquatic mammals come to breathe (Amstrup et al. 2007). Although there ar e local exceptions, it appears that polar bears gain litt le overall benefit from alternate foods (Amstrup et al. 2007). Even in Hudson Bay where polar bears are forced onto la nd for extended periods w ith access to a variety of foods including human refuse, little terrestria l food is incorporated in to polar bear tissues (Ramsay and Hobson 1991). Therefore, maintenan ce of polar bear populati ons is dependent upon marine prey, largely ringed seals, and polar bear s are tied to the surface of the ice for effective access to that prey (Amstrup et al. 2007).

Breeding Biology Polar bears have an intrinsically low reproductive rate characterized by late age of sexual maturity, small litter sizes, and extended parental investme nt in raising young. Female polar bears enter a prolonged estrus between March and June, when br eeding occurs. Ovulation is thought to be induced by mating (Wimsatt 1963, Ramsay and Dunbrack 1986, Derocher and Stirling 1992). Implantation is delayed until autumn, and gestation is 195 to 265 days (Uspenski 1977), with active development of the fetus suspended for most of that time. The timing of implantation, and therefore the timing of birth, is likely dependent upon body condition of the female, which in turn is dependent upon a variety of envi ronmental factors (Schliebe et al . 2006). Derocher et al. (1992) documented Hudson Bay polar bear births occurre d from mid-November through mid- December. In the Beaufort Sea many pregnant females did not enter dens until late November or early December (Amstrup and Gardner 1994), and a later date of birth is assumed.

Throughout their range, most pregna nt female polar bears excavate dens in snow located on land during September through November after drifts large enough to excavate a snow cave have formed (Ramsay and Stirling 1990, Amstrup and Ga rdner 1994). The only known exceptions are in Western and southern Hudson Bay where polar bears excavate earthen de ns and later reposition into adjacent snow drifts (Jonkel et al. 1972, Richar dson et al. 2005), and in the southern Beaufort Sea where a portion of the population dens in snow caves located on pack and shorefast ice. Successful denning by polar bears re quires an accumulation of suff icient snow combined with

winds to cause snow accumulati on leeward of topographic features that create denning habitat (Harington 1968). The common charac teristic of all denning habitat is topographic features that catch snow in the autumn and early winter (Durner et al. 2003).

Polar bear denning habitat in Alaska includes areas of low relief topography characterized by tundra with riverine banks within approxima tely 50 km (31 mi) of the coast (Amstrup 1993, Amstrup and Gardner 1994, Durner et al. 2001, 2003), and offshore pack ice pressure ridge habitat.

The northern Alaskan coast receives minimal snow fa ll, but because the landscape is flat, snow is blown throughout winter creating dr ifts in areas of relief.

20Fidelity to denning locales was investigated by Amstrup and Gardner (1994), in which 27 females were located at up to four successive maternity dens. Bears that denned once on pack ice were more likely to den on pack ice than on land in subs equent years. Similarly, bears were faithful to general geographic areas – those that denned once in the eastern half of the Alaska coast were more likely to den there than to the west in subseque nt years. Annual vari ations in weather, ice conditions, prey availability, a nd the long-distance movements of polar bears (Amstrup et al. 1986, Amstrup et al. 2000b, Garner et al . 1990) make recurrence of exact denning locations unlikely.

Chronology of denning varies between polar bear populations. Satellite telemetry studies determined mean dates of den entry in the Beau fort Sea were 11 and 22 November for land (n = 20) and pack ice (n = 16), respectively (Amstr up and Gardner 1994). Female bears were foraging right up to the time of den entry, and then denne d nearby. The mean date of emergence was 26 March for pack ice dens (n = 10) and 5 April for land dens (n = 18). Messi er et al. (1994) reported mean date of den entry and exit varied among years depending upon sea ice, snow, and weather conditions; mean entry into maternal dens in the Canadian Arctic was 17 September and mean emergence was 21 March, with females and cubs remaining near dens for a mean 13 (SE = 13) days post emergence. Ferguson et al. (2000) observed that b ears denning at higher latitudes

entered dens a bit later than thos e to the south, but that exit times did not differ by latitude; they reported a mean den entry of 15 September (1 Se ptember to 7 October), a mean exit of 20 March (15 to 28 March), with a mean 180 days in dens (163 to 200 days). For bears denning on sea ice or moving from sea ice to land denning habitat, time of sea ice consolidation can alter the onset of denning. Sea ice dens must be in ice stable enough to stay intact for up to 164 days while possibly moving hundreds of kilometers by currents (Amstrup 2003, Wiig 1998).

Polar bears are largely food deprived while on land in the ice-free period and survive by mobilizing fat during that time. Pregnant females that sp end the late summer on land then go into dens and may not feed for eight months (Watts and Hans en 1987, Ramsay and Stirling 1988). This may be the longest period of food depriva tion of any mammal, and it occurs when the female could be gestating and lactating.

Polar bears give birth in the dens during mi d-winter (Kostyan 1954, Harington 1968, Ramsay and Dunbrack 1986). Survival and growth of the cubs depends on the warmth and stable environment

within the maternal den (Blix and Lentfer 1979). Family groups emerge from dens in March and April when cubs are about three months old and ab le to survive in the ou tside weather conditions (Blix and Lentfer 1979, Amstrup 1995).

Newborn polar bears are very small, weighi ng only approximately 0.6 kg (1.3 pounds) (Blix and Lentfer 1979), and nurse from thei r hibernating mothers. Cubs gr ow very quickly and may weigh 10 to 12 kg (22 to 26.4 pounds) by the time they emerge from the den about three months later. Young bears stay with their moth ers until weaned, which occurs most commonly in early spring when the cubs are 2.3 years of age. Female polar bears are available to breed again after the cubs are weaned. Therefore, in most areas, the minimu m successful reproductive in terval for polar bears is 3 years (Schliebe et al. 2006).

Age of maturation of mammals is often associated with a thre shold body mass (Sadleir 1969), and in polar bear populations it appear s to be largely dependent on nu mbers and productivity of ringed

21seals. In the Beaufort Sea, ringed seal densi ties are lower in some areas of the Canadian High Arctic and Hudson Bay. As a possible consequence, female polar bears in the Beaufort Sea usually do not breed for the first time until they are 5 years of age (Stirling et al. 1976, Lentfer and Hensel 1980). This means they give birth for the first tim e at 6 years of age. In contrast, many of the Canada females reach maturity at age 4 and prod uce their first young at age 5 (Stirling et al. 1977, 1980, 1984; Ramsay and Stirling 1982, 1988; Furnell and Schweinsburg 1984). Derocher et al. (1992) calculated average age of first breedi ng in the Hudson Bay area of 4.1 years, and cub production (assessed by estimated pregnancy rates) remained high between 5 and 20 years of age

and declined thereafter.

Litter size and production rates vary by geographi c area and may change in response to hunting pressure, environmental factors, and other population perturbations . Litters of two cubs are common (Schliebe et al. 2006), with litters of three cubs occurring sp oradically across the Arctic and most commonly reported in the Hudson Bay re gion (Stirling et al. 1977, Ramsay and Stirling 1988, Derocher and Stirling 1992). Aver age litter size across the species range varied from 1.4 to 1.8 cubs (Schliebe et al. 2006), and several studies have linked reproduc tion to availability of seal prey, especially in the northern portion of their range. Body we ights of mother polar bears and their cubs decreased markedly in the mid-1970s in the Beaufort Sea following a decline in ringed and bearded seal pup production (Stirling et al. 1976, 1977, Kings ley 1979, DeMaster et al. 1980, Stirling et al. 1982, Amstrup et al. 1986). Declines in reproductive parameters varied by region and year with the severity of ice conditions and co rresponding reduction in numbers and productivity of seals (Amstrup et al. 1986). In the Beaufort Sea, fe males produce a litter of cubs at an annual rate of 0.25 litters per adult female (Amstrup 1995). Annual litter production rate in Hudson Bay region declined from 0.45 litters/female in th e period 1965-1979 to 0.35 lit ters/female during 1985- 1990 (Derocher and Stirling 1992).

Polar bear reproduction lends itself to early termin ation without extensive energetic investment on the female (Ramsay and Dunbrack 1986, Derocher and Stirling 1992). Female polar bears may defer reproduction in favor of survival when foraging conditions are difficult (Derocher et al. 1992). Persistent deferral of reproduction could cause a declining population trend in populations with an intrinsically low rate of growth (Schliebe et al. 2006).

Survival Polar bears are long-lived animals; the oldest known female polar bear in the wild was 32 years of age and the oldest known male was 28, although few bears in the wild live beyond 20 years (Stirling 1990). Survival rates in crease up to a certain age, with cubs-of –the-year having the lowest rates and prime age adults (between 5 and 20 years of age) having su rvival rates that can exceed 90 percent (Schliebe et al. 2006; Taylor et al. unpublished data). Amstrup and Durner (1995) report that high survival rates (exceeding 90% for adult females) are essential to sustain populations.

Survival of cubs is dependent upon their weight when they exit maternity dens (Derocher and Stirling 1992), and most cub mortality occurred ea rly in the period after emergence from the den (Amstrup and Durner 1995, Derocher and Stirli ng 1996), with early ag e mortality generally associated with starvation (Der ocher and Stirling 1996). Survival of cubs to weaning stage (generally 27-28 months) is generally estimated to range from 15 to 56 percent of births (Schliebe

22et al. 2006). Subadult survival rates are poorly understood because collars cannot be used on these rapidly growing individuals.

Population age structure data indi cate subadults 2 to 5 years survive at lowe r rates than adults (Amstrup 1995), probably because their hunting and surv ival skills are not fully developed (Stirling and Latour 1978). Eberhardt ( 1985) hypothesized adult su rvival rates must be in the upper 90 percent range to sustain polar be ar populations. Studi es using telemetry m onitoring of individual animals (Amstrup and Durner 1995) estimated adult female survival in prime age groups may exceed 96 percent, and survival estimates are a reflection of the characteristics and qualities of an ecosystem to maintain the health of individual bears (S chliebe et al. 2006). Polar bears that avoid serious injury may become too old and feeble to hunt efficiently and most are generally believed to die of old age. Local and widespread climatic ph enomena that have the potential to make seals less

abundant or less available can si gnificantly affect pol ar bear populations through survival or production (Kingsley 1979, DeMaster et al 1980, Amstrup et al. 1986, Stirling 2002).

Population Status The total number of polar bears worldwide is estimated to be 20,000 to 25,000 bears (Aars et al. 2006). Worldwide population summaries were de rived from information presented at the IUCN/PBSG meeting held in Seat tle, Washington in June 2005, and updated with results available in October 2006 (Aars et al. 2006). Information presented for each population is based upon status reports and revisions given by each nation. Popul ation sizes and associated uncertainty in estimates, historical and predic ted human-caused mortality, populat ion trends, and rationale for

determination of status are presented (Aars et al. 2006).

Southern Beaufort Sea Population The Southern Beaufort Sea (SB) population o ccurs between Icy Cape, Alaska on the western boundary and Pearce Point, Northwest Territory (NWT), Canada (Amstrup et al. 1986, Amstrup and DeMaster 1988, Stirling et al. 1988). The si ze of the SB population was estimated to be approximately 1,800 animals in 1986 (Amstrup et al. 1986). A new populati on assessment derived from capture-recapture data collected during 2001 to 2006 estimated 1,526 (95 percent CI = 1,211 - 1,841) polar bears in the region in 2006 (Regehr et al. 2006). Becau se the precision of the earlier estimate was low, the two estimates cannot be sta tistically differentiated. The harvest of polar bears in the SB region is shared between Canada and the United States and since 1988 has been managed under the “Polar Bear Management Ag reement for the Southern Beaufort Sea” by the Inuvialuit Game Council of Canada, and the Nort h Slope Borough of Alaska. The harvest quota for the SB is 80 animals (40 for Alaska and 40 for NWT). In 2004/2005 the joint harvest was 46 bears (Schliebe et al. 2006, Branigan et al. 2006). The status of the SB population is designated as reduced (73 FR 28212, May 15, 2008; page 28217) and th e predicted trend is de clining (Aars et al. 2006).

Chukchi Sea Population The Chukchi Sea (CS) population is widely distributed on the p ack ice of the northern Bering, Chukchi, and eastern portions of the Eastern Siberian seas (Garne r et al. 1990, Garner et al. 1994, Garner et al. 1995). Polar bears are seasonably abundant in the C hukchi Sea and th eir distribution is influenced by the movement of the seasonal pack ice. Polar bears in the Chukchi and Bering Seas move south with the advancing ice during fa ll and winter and move north in advance of the

23receding ice in late spring and early summer (Gar ner et al. 1990). Polar bears are dependent upon the sea ice for foraging and the most productive ar eas seem to be near the ice edge, leads, or polynyas (irregularly shaped areas of persistent open water that are sustained by winds or ocean heat) where the ocean depth is minimal (Durner et al. 2004). In addition polar bears could be present along the shoreline as they opportuni stically scavenge on marine mammal carcasses (Kalxdorff and Fischbach 1998).

The current CS population size is not precisely known, but an es timate of approximately 2,000 was made in 1993 (Aars et al. 2006, Schl iebe et al. 2006). The size of the population was derived from observations of dens and aerial surveys (C helintsev 1977, Stishov 1991, Stishov et al. 1991); but the estimates have wide ranges (about 200 to 500 animals), so are considered of little use for management. Reliable estimates of population size based upon mark and recapture studies are not available for this region, and measuring the population size is a research challe nge. It is believed the status of the CS population in creased after the harvest was re duced in 1972, but the status and trend cannot yet be determined for this popul ation (73 FR 28212, May 15, 2008; page 28217). The CS population is subject to subsistence hunting in Alaska where average annual harvest levels declined about 50 percent between the 1980s and 1990s (Schliebe et al . 1998) and have remained at low levels in recent years. No hunting quota is set for Alaska; in 2004/2005, 32 bears were

harvested in Alaska. There is believed to be a substantial illegal harvest in Russia where a minimum of 100 bears are thought to be harvested annually, and in some years the estimates have exceeded 200 animals killed in Russia (Schliebe etal. 2006). Currently the combined AlaskaChukotka polar bear harvest is believed to exc eed sustainable levels, and the CS polar bear population is considered uncertain or declining (Aars et al. 2006).

Northern Beaufort Sea Population The Northern Beaufort (NB) populat ion of polar bears generally in habits the eastern and northern Beaufort Sea in the Canadian region where sea i ce converges on shorelines throughout most of the year. Population estimates based upon open population capture-recapture models indicate the current NB population is 980 (±155, 95 percent CI) and is not signifi cantly different than earlier estimates for the periods of 745 (± 246, 95 perc ent CI) for 1972 to 1975, and 867 (±141, 95 percent CI) for 1985 to 1987 (Stirling et al 2007). This popul ation of polar bears currently is considered stable, and the status is be lieved to not be reduced (73 FR 28212, May 15, 2008; page 28217).

Boundaries and population estimates of these three populations are of particular interest for U.S.– based activities and management considerations becau se there is potential overlap of bears in some areas. Stirling (2002) reviewed the ecology of polar bears and seals in the Ca nadian sector of the Beaufort Sea from 1970 to 2000, and recent analyses of the radio-telemetry data in the SB suggest some boundary realignments (Amstrup et al. 2004, Amstr up et al 2005). It is thought that nearly all bears in the central coastal region of the Beau fort Sea are from the SB population, and that proportional representation of SB bears decreases to both the west and east. For example, only 50 percent of polar bears occurring in Barrow, Alaska and Tuktoyakt uk, NWT are SB bears, with the remainder being from the CS and NB populatio ns. Assignment of new boundaries may be suggested in the future that re flect improved understanding of the spatial and temporal use patterns of bears in the SB region (Amstrup et al. 2005). Presumably new population estimates would be derived for any new defined boundary areas, but th e population estimates pres ented above (Aars et

24al. 2006, Schliebe et al. 2006, Regehr et al. 2006) reflect the use of the previously-published boundaries for the SB stock of polar bears.



### 4. Environmental Baseline

The environmental baseline is the current status of listed species a nd their habitats, and the current

status of critical habita t (if applicable), as a result of past and ongoing human and natural factors in the area of the proposed action. Al so included in the environmenta l baseline are the anticipated impacts of other proposed Federal projects in the action area.

The polar bear is listed as a th reatened species throughout its ra nge. The total number of polar bears worldwide is estimated to be 20,000 to 25,000 bears (Schliebe et al. 2006). Abundance estimates for the Alaska subpopulations under cons ideration in this BO are approximately 1,500 bears in the SB population, approximately 2,000 bears in the CS popula tion, with unknown, but presumably limited, amount of co-mingling from the NB population of about 980 animals.

The primary habitat of polar bear s is sea ice, from which they hunt, feed, seek mates and breed, den, and rest when traveling long distances. Most polar bears remain on the sea ice year-round or spend only limited time on land. No polar bear crit ical habitat has been proposed for designation at

this time.

Current threats to polar bears range-wide were de scribed in the Status Review (Schliebe et al. 2006) and the final listing rule (73 FR 28212, May 15, 2008). Loss of sea ice ha bitat due to climate change was identified as the primary threat to polar bears range-wide. Other threats evaluated included hunting, oil and gas development, human-bear interactions , environmental contaminants, disease, and predation. Whereas lo ss of sea ice habitat is considered the prin ciple threat to polar bears, each of the other threats could become more significant in the future in combination with effects of climate change (Schliebe et al. 2006). The documented or antic ipated effect of each

threat is described below.

Loss of Sea Ice and Climate Change The final listing rule summarizes many of the observed changes in Arctic sea ice that are of particular importance to the status of polar bear s including reductions in the extent of both summer and winter ice, length of the melt period, and reduction in sea ice thickness (73 FR 28212, May 15, 2008 pages 28219-28224). Recent years have seen record low September Arctic sea ice extent, and

the shallow continental shelf waters of the Chukchi Sea experienced a rapid and complete retreat of sea ice during the summer of 2007 (National Snow and Ice Data Center 2007). The 4 th Assessment Report of the IPCC (IPCC 2007; http://www.ipcc.ch /ipccreports/ar4-syr.htm) observed that

decreases in snow and ice extent are consistent with climate warmi ng, and that satellite data since 1978 show that annual average Arctic ice extent has shrunk by 2.7 percent (90 percent CI = 2.1 to 3.3 percent) per decade, with larg er decreases in summer of 7.4 percent (90 percent CI = 5.0 to 9.8 percent) per decade.

Polar bear studies in the SB region began in 1967 and constitute the longest and most consistent dataset on polar bears. Regehr et al. (2007) review ed recent survival and br eeding of polar bears in

25the SB relative to sea ice conditions obser ved in 2001 though 2006. The SB population of polar bears occurs in the divergent ice ecoregions of the polar basin, wher e polar bears have historically remained on multiyear sea ice as it retreats toward the center of the polar basin during the summer (Amstrup 2003, Amstrup et al. 2007). Rates of decline in sea ice extent in this ecoregion have been among the highest in the Arctic (Mei er et al. 2007). Dec lining sea ice extent and degrading ice in

the SB have been associated with a shift towa rd more land-based denning and less denning in regions with higher rates of ice degradation (Fischbach et al. 2007), declines in cub survival (Regehr et al. 2006), and observations of drow ned, emaciated, and cannibalized polar bears (Amstrup et al. 2006, Monnett and Gleason 2006, Stir ling et al. 2008). Re gehr et al. (2007) concluded that in 2002, the ice-free period over the continental shelf in the SB region was relatively short (mean 92 days) and survival of a dults female polar bears was high (approximately 0.99, 90 percent CI = 0.10 to 1.0). In 2004 and 2005, the ice-free period was longer (mean 135 days) and survival of adult female polar bear s was lower (approximately 0.77, 90 percent CI = 0.53 to 0.94). Breeding and cub-of-the-yea r litter survival also declined from high rates to lower rates in latter years of the study. Rege hr et al. (2007) further conclude d that although the precision of estimated vital rates was low, subsequent analysis (Hunter et al. 2007) indi cated the declines in vital rates associated with longer ice-free pe riods have ramification for the probability of persistence of the SB po pulation of polar bears. Further, the results by Regher et al. (2007) are relevant to over one-third of the world’s polar bear s that inhabit regions of the polar basin with sea ice dynamics similar to the SB and have already e xperienced more severe ice changes than the SB. Because Regehr et al.’s analysis of the SB population dynamics was short in duration relative to the life history of polar bears, continued monito ring is recommended to further elucidate the relationship between declin ing sea ice and polar b ear population metrics.

Effects of sea ice loss on polar bear populations range wide have been considered by the Service based upon recent information. In 2007, a USGS sc ience team released 9 reports (highlighted below) to the Service that included (1) new obs ervational data on polar bears, including updated

information on the current status of 3 of the wo rld’s 19 subpopulations of polar bears, and (2) projections of the future dist ribution and abundance of polar bears in the rest of the 21 st century, given changes expected in future sea ice conditions. The reports are available at: http://www.usgs.gov/newsroom/special/polar_bears/.

The overall conclusion of the USGS research effort was that if proj ected changes in future sea ice conditions are realized, approximate ly two-thirds of the world’s cu rrent polar bear population will be lost by the mid-21 st century. Because the observed trajectory of Arctic sea ice decline appears to be underestimated by currently available models, this assessment of future pol ar bear status may be conservative (Amstrup et al. 2007).

Below are key USGS findings: 1. The range of the polar bear was divided into 4 ecoregions based on major differences in current and projected sea ice conditions (Amstrup et al. 2007 ). These ecoregions were

the:

 Seasonal Ice Ecoregion which includes Hudson Bay, and occurs mainly at the

southern extreme of th e polar bear range,

 Archipelagic Ecoregion of the Canadian Arctic,

26 Polar Basin Divergent Ecoregion where ice is formed and then drawn away from near-shore areas, especia lly during the summer minimum ice season (it includes the southern Beaufort, Chukchi, East Si berian-Laptev, Kara, and Barents seas),

and

 Polar Basin Convergent Ecoregion where sea ice formed elsewhere tends to collect against the shore.

Dividing the range of the polar bear into th ese 4 ecoregions allowed inferences from available knowledge about subpopulations in each ecoregion to the entire ecoregion.

2. Projections were made of future s ea ice in each ecoregion, based on 10 general circulation models, chosen from among 20 av ailable (DeWeaver 2007). These 10 models did the best job of simulating current ice cond itions and thus could be expected to do the best job of simulating future ice conditions. Outputs for “business as usual” greenhouse gas forcing (known as the SRES-A1B scen ario) were used for most analyses.

3. An important conclusion from a review of current knowledge about sea ice and sea ice modeling is that Arctic sea ice decline is li kely underestimated by the available models (DeWeaver 2007).

4. Based on new findings from the Northe rn Beaufort subpopulation, polar bear subpopulations in the convergent ice ecoregion of the polar basin are likely currently stable; most available information about the status of populations living in the archipelagic ecoregion, s uggests relative stability (Stirling et al. 2007).

5. For two subpopulations of polar bears, We stern Hudson Bay in the seasonal sea ice ecoregion, and Southern Beaufort Sea in the divergent ecoregion, it is now possible to

relate declines in the availability of sea i ce to declines in metrics of population status (Rode et al. 2007, Regehr et al. 2006, Regehr et al. 2007, Obbard et al. 2007).

6. Knowledge of how polar bear population growth rates relate to specific changes in sea ice (e.g., length of the ice-free season) provi des a mechanism for developing projections of future populations under different s ea ice scenarios (Reg ehr et al. 2007).

7. Under a range of future sea ice scenarios for the 21 st century and modeling approaches, the Southern Beaufort Sea subpopulation of polar bears is projected to decline severely by the end of the century, and in many scenar ios, by mid-century (Amstrup et al. 2007).

8. Polar bears primarily use sea ice over the contin ental shelf. They also prefer ice that is greater than 50 percent in c oncentration. Taking these hab itat features into account, USGS projected future polar bear habitat w ithin the polar basin for the divergent and convergent ice ecoregions using the availabl e sea ice models. USGS evaluated how availability of polar bear ha bitat in the polar basin has changed in recent years.

9. Optimal habitat in the polar basin (inclu ding both the divergent and convergent ice ecoregions) declined between the early ( 1985-1995) and latter decades (1996-2006) of

27the observational record of sea ice (based on passive microwave data). Most pronounced polar bear habitat loss in the past decade ha s occurred in peripheral seas of the Arctic

Ocean - the Chukchi Sea and Barents/Gr eenland Seas (Amstrup et al. 2007).

10. Similarly, losses of polar bear habitat within the polar basi n are projected to be greatest for the peripheral seas of the polar ba sin (e.g., the Chukchi Sea and Barents Sea) (Amstrup et al. 2007).

11. The largest reductions in ha bitat in the polar basin are pr edicted for spring and summer. Sea ice will reform each winter, but the la rge retreats of sea ice in summer may ultimately preclude bears from returning to onshore denning habitat. Low productivity of the polar basin appears to preclude bears from adapting a seasonal ice lifestyle here (Amstrup et al. 2007).

12. A 42 percent loss of optimal polar bear ha bitat during summer in the polar basin is predicted by mid century (Amstrup et al. 2007).

13. Due to unavailability of telemetry data s howing habitats chosen by polar bears in the archipelagic and seasonal sea ice ecoregions, it is not possible to project habitat changes in these ecoregions for this analysis. Usi ng a simple deterministic model of future carrying capacity for polar bears, it is forecas t that polar bears could be extirpated in the divergent ice ecoregion within 75 years, assuming that sea ice decline follows the mean trajectory predicted by the 10 models used. If sea ice decline follows the minimum trajectory predicted, extirpation in this ecore gion could occur by year 45 (Amstrup et al. 2007).

15. Using the carrying capacity model, population declines of polar bears are projected in all other ecoregions at all time steps, with severity of decline dependent upon whether minimum, maximum, or mean ice projections were used. The only exception was a slight, temporary, increase in the polar basi n convergent ice ecor egion for the 45 year timestep and the maximum ice scenario (Amstrup et al. 2007).

16. Based on a first-generati on Bayesian Network model 1 incorporating a range of factors affecting polar bears, USGS forecasted exti rpation of polar bear populations in the seasonal sea ice and the polar basin diverg ent ecoregions by 45 years from present (Amstrup et al. 2007).

17. Extirpation of polar bear populations in the polar basin conve rgent ecoregion is predicted by 75 years from present. In the archipelagic ecoregion, polar bears could occur through the end of the century, but in smaller numbers than now (Amstrup et al. 2007).

1 Bayesian Network models represent a set of interacting variables that are linked by probabilities. They provide an efficient way to represent and summarize understanding of a system, and can combine empirical data and expert knowledge into the same modeling structure. They are also particularly useful in synthesizing large amounts of quantitative and qualitative information to answer “what if” kinds of questions.

2818. Sea ice conditions would have to be substant ially better than even the most conservative general circulation model projections to resu lt in qualitatively different outcomes for polar bears in any of the eco regions (Amstrup et al. 2007).

The populations of polar bears unde r consideration in this BO, pr imarily the SB and CS stocks, inhabit the Polar Basin Divergent Ecoregion, an area documented to be undergoing the most dramatic and rapid reduction in seasonal sea ice, and accordingly are predicted to undergo the most rapid population declines.

Hunting Prior to the 1950s, most polar bear hunting wa s conducted by indigenous people for subsistence purposes. Population declines due to sport hunt ing became an increasing international concern during the 1950s and 1960s. In 1968, the IU CN/PBSG was formed and developed the 1973 International Agreement on the Conservation of Polar Bears, which called for international management of polar bear populations based on s ound conservation practices. It prohibits polar bear hunting except by local people using traditi onal methods, calls for protection of females and denning bears, and bans use of aircraft and large motorized vessels to hunt polar bears. The PBSG meets every 3 to 5 years to review all aspects of polar bears science and management, including harvest management. At present, concern exists for potential over-harvest of several populations of polar bears, including the CS popul ations (Schliebe et al. 2006).

Oil and Gas Development Each of the Parties to the Agreement on the Co nservation of Polar Bears has developed detailed regulations pertaining to the extr action of oil and gas within thei r countries. Mo st oil and gas activity within polar bear habitat is currently o ccurring in the U.S. (Alaska). Documented impacts on polar bears by the oil and gas i ndustry in the U.S. during the pa st 30 years are minimal. Polar bears spend a limited amount of time on land, coming as hore to feed, den, or move to other areas. At times, fall storms deposit bears along the coastline where bears remain until the ice returns. For this reason, polar bears have mainly been enco untered at or near most coastal and offshore production facilities, or along the roads and causeways that link th ese facilities to the mainland. During those periods, the likelihood of interactions between polar bears and indus try activities

increases. The Service’s MMM has found that th e polar bear interacti on planning and training requirements set forth in the Beaufort Sea Regula tions and required through the LOA process have increased polar bear awareness and minimized th ese encounters. LOA requirements have also increased the Service’s knowledge of polar bear activity in the developed areas.

No lethal take associated with the oil and gas industry has occurred during the period covered by incidental take regulations in eith er the Beaufort or Chukchi seas. Prior to issuan ce of regulations, lethal takes by industry were ra re. Since 1968, there have been two documented cases of lethal take of polar bears associated with oil and gas activities. In both instances, the lethal take was reported to be in defense of human life. In the winter of 1968–1969, an industry employee shot and killed a polar bear. In 1990, a female polar bear was killed at a drill site on the west side of Camden Bay. In contrast, 33 polar bears were k illed in the Canadian NWT from 1976 to 1986 due to encounters with industry. Sin ce the beginning of the incidental take program, which includes measures that minimize impacts to the species, no polar bears are known to ha ve been killed due to

encounters associated with the current Indus try activities on the No rth Slope of Alaska.

29Bear-Human Interactions

Polar bears come into conflict with humans partly because they will scavenge for food at sites of human habitation and also because they may occas ionally prey or attempt to prey upon humans (Stirling 1988). “Problem bears” are most often sub-adults, because they are inexperienced hunters and have the most difficulty hunting, and because their feeding habits include more scavenging than adult bears (Stirling 1988). In the NWT, a preliminary study found that 36 of 44 “problem

bears” killed between 1972 and 1999 were less than five years of age (Lunn et al. 2002). In the Canadian Beaufort Sea, 12 of the 16 “problem bears” killed from 1973 to 1983 whose ages were determined were 5 years of age or less, with an average age of 2.25 year s (Stirling 1988). After sub-adults, females with cubs are the most likely type of bear to interact with humans, because females with cubs are likely to be thinner and hungrier than single adult bears and starving bears will risk death in an attemp t to obtain food (Stirling 1988).

Adult male polar bears, unlike ad ult black or grizzly bears, are less likely to frequent areas of human habitation, presumably because adult male polar bears are usually in better physical condition than other sex or age cl asses (Stirling 1988). In the Beaufort Sea, adult males were present for protracted periods of time near se ttlements feeding on bowhead whale remains during the fall period of 2002 to 2005 (Mille r et al. 2006). The reason fo r the unusual presence of adult males near a North Slope village is unknown but s uggests that these animals were attracted by the presence of the carcasses and may have been nutritionally stressed.

In Nunavut, Canada, details from 618 polar bear defense of life and property (DLP) kills that occurred from 1970 to 2000 were analyzed (Dyck 2006). The study found that most bears killed were less than 6 years of age (73 percent), the majo rity of bears were males (71 percent), and most

interactions occurred at Native hunting camps (74 percent). Sources of food were believed to be a contributing factor in many instances but other possible reasons were an increase in land use activities, or the number of ca mps, increased human populations in areas of high polar bear activity, increased polar bear popul ation size, and climatic warming related to earlier departure

from ice habitat to terrestrial habitats. The implementation of a DLP monitoring program in 1980 resulted in a decrease in the number of kills, a lthough recently increased levels of DLP have been reported (Dowsley 2005, Dyck 2006).

Some experts predict that the number of interactio ns and DLP kills will increase as climate change continues (Derocher et al. 2004). Amstrup (2000) observed that dire ct interactions between people

and bears in Alaska have increase d markedly in recent years, and that this trend is expected to continue. Schliebe et al. (2006) confirmed this observation with data fr om hunter-harvested polar

bears in Alaska. The number of bears taken fo r safety reasons, based on three-year running averages, increased steadily from about 3 per ye ar in 1993, to about 12 in 1998, and has averaged about 10 per year recently. There are several plausibl e explanations for this increase. First it could

be an artifact of increa sed reporting by the hunters, or of an increased polar bear population and corresponding increased probability of interactions with humans. A lternatively or in combination, polar bears from the SB and CS populations typica lly move from the pack ice to the near shore environment in the fall to take advantage of the higher productivity of ice seals over the continental shelf. In the 1980s and early 1990s, the near shor e environment would have been frozen by early or mid October, allowing polar bears to effectivel y access seals in the area . Since the late 1990s, the timing of ice formation in the fall has occurred later in November or early December, resulting

30in an increased amount of time that the area was not accessible to polar bears. Consequently, bears spent a greater amount of time on land and not f eeding. The later formation of near-shore ice increases the probability of bear-human interactions occurring in coastal villages (Schliebe et al. 2006).

The increased use of coastal habitats by polar bears during the fall in recent years is further supported by data from aerial surveys along the coast and barrier islands from Barrow to the

Canadian border and from information from local residents in coastal villages in northern and western Alaska. The number of bears using coastal ha bitats has been relatively stable in the most recent years, possibly explaining why DLP kills have stabilized.

Environmental Contaminants Three main types of contaminants in the Arctic ar e thought to present the great est potential threat to polar bears and other marine mammals: petroleu m hydrocarbons, persistent organic pollutants (POPs), and heavy metals.

Petroleum Hydrocarbons Potential exposure of polar bear s to petroleum hydrocarbons co mes from direct contact and ingestion of crude oil and refined products from acute and chronic oil spills. Po lar bear range overlaps with many active and planned oil and gas ope rations within 40 km ( 25 mi) of the coast or offshore (Schliebe et al. 2006). To date, no major o il spills have occurred in the Alaska marine environment within the range of polar bears.

Polar bears could come in contact with oil spi lled in the marine or land environment, or by ingesting contaminated prey (Neff 1990). Polar b ears groom themselves regularly as a means to maintain the insulating properties of their fur, so oil ingestion would also be likely during grooming behavior by a fouled bear (Neff 1990). Some direct information on oiled polar bears comes from an experimental study (St. Aubin 1990) in which tw o polar bears were involuntarily forced into a pool of oil for 15 minutes and then observed. Th e animals immediately attempted to clean the oil from their paws and forelegs by licking, and cont inued grooming trying to clean their fur for five days. After 26 days one bear died of liver and ki dney failure and the other bear was euthanized at day 29. Gastrointestinal fungus -containing ulcers, degenerated kidney tubules, low-grade liver lesions, and depressed lymphoid activity were found during necropsy (St. Aubin 1990). Other effects included loss of hair (Derocher and Stir ling 1991), anemia, anorexia, and stress (St. Aubin 1990).

Additionally, polar bears ar e curious and are likely to investigate oil spills and oil contaminated wildlife. Although it is not known whether healthy polar bears in their natural e nvironment would avoid oil spills and contaminated seals, bears th at are hungry are likely to scavenge contaminated seals, as they have shown no aversion to eati ng and ingesting oil (St. Aubin 1990, Derocher and Stirling 1991).

Due to the seasonal distribution of polar bears, th e times of greatest impact from an oil spill are summer and autumn (Amstrup et al. 2000a). This is important because distri butions of polar bears are not uniform through time. In fact, near-shore densities of polar bears are two to five times greater in autumn than in summer (Durner et al. 2000), and polar bear use of coastal areas during

31the fall open water period has increased in recent y ears in the Beaufort Sea. Though there is a low probability that a large number of bears (i.e., 25 to 60) might be affected by a large oil spill, the impact of a large spill, particularly during the broken ice period, could be significant to the polar bear population (71 FR 43926, USFWS 2006). The numbe r of polar bears aff ected by an oil spill could be substantially higher if the spill spread to areas of seasonal polar bear concentrations, such as the area near Kaktovik, in the fall, and could have a significant impact to the SB polar bear population.

Industrial development of any ki nd in polar bear habitat may al so expose individuals to other hazardous substances through improper storage or sp ills. For example, one polar bear died in Alaska from consuming ethylene gl ycol in 1988 (Amstrup et al. 1989).

Contamination of the Arctic and sub-Arctic regi ons through long-range transport of pollutants has been recognized for over 30 years (Bowes a nd Jonkel 1975, deMarch et al. 1998, Proshutinsky and Johnson 2001, MacDonald et al. 2003, Lie et al. 2003) . The Arctic ecosystem is particularly

sensitive to environmental contamination due to the slower rate of break down of POPs, including organochlorine compounds (OCs), relatively simp le food chains, and the presence of long-lived organisms with low rates of reproduction and high lipid levels. The persistence and lipophilic nature of organochlorines increase the potential for bioaccumulation and biomagnification at higher trophic levels (Fisk et al. 2001). The highest concentrations of OC s have been found in species at the top of the marine food chains, such as glau cous gulls which scavenge on marine mammals and polar bears which feed primarily on seals (Braune et al. 2005). Consistent patterns between OC and mercury contamination and trophic status have been documented in Arctic marine food webs (Braune et al. 2005). The southern Beaufort Sea pol ar bear population may ha ve concentrations of mercury close to the biological th reshold levels of 60 micrograms wet weight reported for marine mammals (AMAP 2005).

Contaminant concentrations in most polar bear populations are presen tly not thought to have population level effects. However, contaminant e xposure in combination with other factors, such

as loss of sea ice habitat and decr eased prey availability, which have the potential to influence the recruitment or survival rates, could ultim ately have population-level effects.

Increases in Arctic oil and gas development and tr ans-Arctic shipping will increase the probability of an oil spill and release of contaminants. Th e Service believes a marine oil spill would cause polar bear mortality if bears are exposed to the sp ill, and may result in population-level effects if multiple bear are exposed.

Disease Except for the presence of Trichinella larvae, the occurrence of dis eases and parasites in polar bears is relatively rare compar ed to other bears. Polar bears feed primarily on fat which is relatively free of parasites, except for Trichinella (Rogers and Rogers 1976, Forbes 2000). It is unknown whether polar bears are more susceptible to new pathogens due to their lack of previous exposure to diseases and parasite s. Many different pathogens and viruses have been found in seal species that are polar bear pr ey (Duignan et al. 1997, Measures and Olson 1999, Dubey et al. 2003, Hughes-Hanks et al. 2005), so the po tential exists for transmission of these diseases to polar bears. As polar bears become more stressed they may eat mo re of the intestines and internal organs than

32they do presently, thus increasing their potential exposure to parasi tes and viruses (D erocher et al. 2004, Amstrup et al. 2006).

Predation Polar bears have no predators bu t man and other polar bears (see Hunting , above). Intraspecific killing has been reported among all North American bear species. Reasons for intraspecific predation in bears species is poorly understood but thought to include population regulation, nutrition, and enhanced breeding opportunities in the case of predation of cubs. Although infanticide by male polar bears has been we ll documented (Hannsson and Thomassen 1983, Larsen 1985, Taylor et al. 1985, Derocher and Wiig 1999), it is thought that this activity does not account for large percentage of the cub mortality. A pot ential reason for infanticide relates to density dependent mechanisms of population control as this behavior seems to occur more frequently with increasing population size (Derocher and Wiig 1999).

Cannibalism has been recently documented in pol ar bears (Derocher and Wiig 1999, Amstrup et al. 2006). Amstrup et al. (2006) observed three non-rela ted instances of intraspecific predation and

cannibalism in the southern Beaufort Sea duri ng the spring of 2004. One instance was the first documented predation of an adult female in a de n, the second instance was of a female and newly emerged cub from a den, and the third instance in volved a yearling male. In a combined 58 years of research by the senior investigat ors, similar observations had not taken place. Active stalking or hunting preceded the attacks and the killed bears were partiall y consumed. Adult males were believed to be the predator in all of the attacks. Amstrup et al. (2006) indi cated that in general a greater portion of polar bears in the area where the predation o ccurred were in poor physical condition compared to other years. The authors h ypothesized that adult male s may be the first to

show the effects of nutritional st ress caused by significant ice retreat in this area (Skinner et al. 1998, Comiso and Parkinson 2004, Stroeve et al. 2005) because they feed less during the spring mating season and enter the summer in poorer conditi on than other sex/age classes. Derocher and Wiig (1999) documented a similar intraspecific kill ing and consumption of another polar bear in Svalbard, Norway, which was attrib uted to relatively high populati on densities and food shortages. Taylor et al. (1985) documented that a malnourished female killed and consumed her own cubs, and Lunn and Stenhouse (1985) found an emaciated ma le consuming an adult female polar bear. The potential importance of cannibalism and in fanticide for population regulation is unknown. Given our current knowledge of disease and pred ation, we do not believ e that these factors currently are having population level effects. Ho wever, increased cannibalism in polar bears was postulated and thought to be a resu lt of nutritional stress brought on by climate change (Derocher et al. 2004).



### 5. Effects of the Action on the Species

This analysis focuses on the direct and indirect effects resulting from the promulgated Regulations and whether such effects, when considered with the species status, environmental baseline, and cumulative effects within the action area, are likely to jeopardize the conti nued existence of polar bears. Because the Regulations are addressing take of polar bears incident al to Industr y activities associated with oil and gas exploration, develo pment, and production in the Beaufort Sea, the effects analysis is organized around the potential effects of those activ ities. Whereas the

33Regulations would permit some non-le thal incidental take of polar bears, the Regulations would require mitigation measures designed to avoid or minimize foreseeable adverse effects of Industry activities on polar bears, and requi re monitoring to document the eff ectiveness of these measures as

well as document incidental take of polar bears. Therefore, the Re gulations would also have direct benefits to polar bears, as well as provide a means for obtaining information useful for future management of polar bears in the Beaufort Sea.

Polar bears are present in the region of activity a nd, therefore, oil and gas activities could impact polar bears in various ways duri ng both open-water and ice-covered seasons. Potential direct and

indirect effects of the Industr y activities from noise disturba nce; physical obstructions; human encounters; effects on prey species, and o il and fuel spills are described below. In some cases, the Service has information about the response of polar bears to similar activitie s. This polar bear response information is relevant because it was la rgely obtained from th e monitoring programs in place under previous or existing Regu lations in the Chukchi and Beaufo rt seas. No lethal take is anticipated; only non-lethal incident al take is under consideration.

Noise Disturbance Noise produced by Industry activiti es during the open-water a nd ice-covered seasons could potentially result in take of polar bears. Duri ng the ice-covered season, denning female bears, as well as mobile, non-denning bears, could be expos ed to oil and gas activ ities and potentially affected in different ways. The best available scientific informa tion indicates that female polar bears entering dens, or females in dens with cubs, are more sensitive than other age and sex groups

to noises.

Noise disturbance can originate from either sta tionary or mobile sources. Stationary sources include: construction, maintenance, repair, and remediation activities; op erations at production facilities; flaring excess gas; a nd drilling operations from either onshore or offshore facilities.

Mobile sources include: vessel and ai rcraft traffic; open-wa ter seismic explorati on; winter vibroseis programs; geotechnical surveys; ice road constr uction and associated ve hicle traffic, including tracked vehicles and snowmobiles; drilling; dredging; and ice-breaking vessels.

Stationary Sources Typically, most polar bears occur in the active i ce zone, far offshore, hunting throughout the year. However, some bears also spend a limited amount of time on land, coming ashore to feed, den, or

move to other areas. If fall storms and ocean currents deposit ice-bound bears on land, they may remain along the coast or on barrier islands for several weeks until the ice returns.

Noise produced by stationary Industr y activities could elicit severa l different responses in polar bears. The noise may act as a deterrent to bear s entering the area or potentially attract bears. Attracting bears to these facilities, especially ex ploration facilities in the coastal or nearshore environment, could result in human–bear en counters, which could result in unintentional harassment, lethal take, or intentional hazing (u nder separate authorizat ion) of the bear (see

Human Encounters , below).

During the ice-covered season, noise from stationary Industry activities may deter females from denning in the surrounding area, even though polar bears have been known to den near industrial

34activities without any observed imp act to the polar bears. For example, in 1991 two maternity dens

were located on the south shore of a barrier island within 2.8 km (1.7 mi) of a production facility. During the ice-covered seasons of 2000-2001 an d 2001-2002, active dens were located within approximately 0.4 km and 0.8 km (0.25 mi and 0.5 mi) of remediation activiti es on Flaxman Island

in the Beaufort Sea with no obser ved impact to the polar bears.

In other cases, polar bears may have abandoned dens as a result of human disturbance. For example, in January 1985, a female polar bear ma y have abandoned her den due to rolligon traffic, which occurred between 250 m and 500 m (820 ft and 1,640 ft) from the den site. Researcher disturbance created by nearby camp and associated noise, which occurred during a den emergence study in 2002 on the North Slope, may have caused a female bear and her cub(s) to abandon their den and move to the ice sooner than necessary. Th e female was observed later without the cub(s).

Available information indicates such events have been infreque nt and isolated.

Polar bears exposed to routine industrial noise s may acclimate to those noises and show less vigilance than bears not exposed to such stimuli. This implication came from a study that occurred in conjunction with industrial activities performed on Flaxma n Island in 2002 and a study of undisturbed dens in 2002 and 2003 (n = 8). Resear chers assessed vigilant behavior with two potential measures of disturbance: (1) proporti on of time scanning their surroundings and (2) the frequency of observable vigilant behaviors. Bears exposed to industrial activity spent less time scanning their surroundings than bears in undistur bed areas and engaged in vigilant behavior significantly less often.

In 2007, at the Intrepid exploration site located on the Chukchi Sea coast south of Barrow, a female bear and her cub were observed approximately 1 00 meters from a pad. Th e bear did not appear concerned about the activity and, after being observed by a bear m onitor, the female changed her

direction of movement and left the area. This is another example of a pol ar bear showing minimal behavior change due to an inte raction with Industry a nd it is similar to encounters between polar bears and Industry that have been documented in the Beaufort Sea.

Mobile Sources In the southern Beaufort Sea, during the open-wate r season, polar bears spend the majority of their lives on the pack ice, which limits the chances of impacts on polar bears from Industry activities. Although polar bears have been documented in open-wa ter, miles from the ice edge or ice floes, this has been a relatively rare occurrence. Howe ver, with the amount of ice cover changing rapidly due to climate change, more bears may encount er Industry activities being conducted in open water. Researchers have observed that in some cases bears swim long distances during the open water period seeking either ice or land and may become vulne rable to exhaustion and storms with large waves because ice floes are dissipating and unavailable or uns uitable for use as haul outs or resting platforms. During a MMS coastal aerial survey program in the fall of 2004, four drowned polar bears were observed in the Beaufort Sea; presumably, the drowning s were the result of a storm event (Monnett and Gleason 2006).

In the open-water season, Industr y activities are gene rally limited to vessel-based exploration activities, such as ocean-bottom cable seismic and shallow hazards surveys. These activities avoid

35ice floes and the multi-year ice edge; however, they may contact bears in open water and the effects of such encounters are likely to be short-term behavior disturbance.

Vessel and Aircraft Traffic : Polar bears are known to run from sources of noise and the sight of vessels or icebreakers and aircraft, especially heli copters. The effects of fleeing from aircraft may

be minimal if the event is short and the animal is otherwise unstressed. Likewise, fleeing from a working icebreaker may have minimal effects for a healthy animal on a cool day. However, on a warm spring or summer day, a short run may be e nough to overheat a well in sulated polar bear.

During the open-water season, most polar bears re main offshore in the pack ice and are not typically present in the area of vessel traffic. Ba rges and vessels associated with Industr y activities travel in open-water and avoid larg e ice floes. If there is any encounter between a vessel and a bear, it would most likely result in s hort-term behavioral disturbance only.

Routine aircraft traffic should have little to no effect on polar bear s; however, extensive or repeated overflights of fixed-wing aircraft for monitoring purposes or helic opters used for re-supply of Industry operations could disturb polar bears. Behavioral reac tions of non-denning polar bears should be limited to short-term changes in be havior and would have no long-term impact on individuals and no impacts on the polar bear population. In cont rast, denning bears may abandon or depart their dens early in re sponse to repeated noise such as that produced by extensive aircraft overflights. Mitigation measures, su ch as minimum flight elevations over polar bears or areas of concern and flight restrictions around known polar bear dens, will be required, as appropriate, to

reduce the likelihood that bear s are disturbed by aircraft.

Noise from Seismic Activity : Little information is available about the effects of noise on polar bears, nor the potential for seismic survey sounds to cause auditory impairment or other physical effects in polar bears. In the Chukchi Sea, four polar bears were sighted during three oil and gas seismic surveys (but no bears were observed from active seismic vessels) between September 2 and

October 3 2006. Three of the four bears were observed walking on ice, and one animal was observed swimming; two of the four reacted to the vessel by distancing itself from the vessel.

Polar bears are curious and tend to investigate novel si ghts, smells, and possibly noises. Noise produced by seismic activities could elicit several different responses in polar bears. Noise may act as a deterrent to bears entering the area of operation, or the noise could potentially attract curious bears. Available data suggest th at such effects, if they occur at all, would be limited to short distances and probably to projects involving large airgun arrays. Th ere is no evidence that airgun pulses cause serious injury or deat h, even in the case of large air gun arrays. Marine mammals that

show behavioral avoidance of seismic vessels are especially unlikely to incur auditory impairment or other physical effects.

Although polar bears are typically associated with the pack ice during summer and fall, open-water seismic exploration activities can en counter polar bears in the central Beaufort Sea in late summer or fall. It is unlikely that seismic explorati on activities or other ge ophysical surveys during the openwater season would result in more than temporar y behavioral disturbance to polar bears. Polar bears normally swim with their heads above th e surface, where underwater noises are weak or undetectable. Furthermore, inclusion of sta ndard Service mitigation measures for seismic

36activities, such as power -down or shut-down of airguns if bears enter the 190 db ensonification zone, reduces the likelihood that adverse effects might occur. Therefore, th e Service concludes that it is unlikely that any single bear would be exposed to strong underwater seismic sounds long enough for significant disturbance to develop.

Noise and vibrations produced by oil and gas activities during the ic e-covered season could potentially result in impacts on polar bears. During this time of year, denning female bears as well as mobile, non-denning bears could be exposed to and affected differently by potential impacts from seismic activities. As stated earlier, distur bances to denning females, either on land or on ice are of particular concern. As part of the LOA application for seismic surveys during denning season, Industry provides the Service with the pro posed seismic survey routes. To minimize the likelihood of disturbance to denning females, th ese routes are evaluated along with information about known polar bear dens, hi storic denning sites, and delineated denning habitat.

Physical Obstructions There is little chance that Industry facilities would act as physical barriers to movements of polar

bears. Most facilities are lo cated onshore where polar bears are only occasionally found. The

offshore and coastal facilities are most likely to be approached by polar bears. The Endicott and West Dock causeways and facilities have the greate st potential to act as barriers to movements of polar bears because they extend continuously from the coastline to the offshore facility. Yet because polar bears appear to have little or no fear of man-made structures and can easily climb and cross gravel roads and causeways, bears have fre quently been observed crossing existing roads and causeways in the Prudhoe Bay oilfields. Offshore pr oduction facilities, such as Northstar, may be approached by polar bears, but due to their la yout (i.e., continuous sheet pile walls around the perimeter) and monitoring plan, the bears may not gain access to the facility itself. This situation may present a small-scale, local obstruction to the bears’ movement, but also minimizes the

likelihood of human-bear encounters.

Human Encounters Human encounters can be danger ous for both the polar bear and the human. Whenever humans

work in the habitat of the animal, there is a ch ance of an encounter, even though, historically, such

encounters have been uncommon in association with Industry.

Although bears may be found along the coast during ope n-water periods, most of the polar bears in the action area inhabit the multi-year pack ice duri ng this time of year. Encounters are more likely to occur during fall and winter periods when grea ter numbers of the bears are found in the coastal environment searching for food and possibly den site s later in the season. Industry takes steps to actively prevent bears from accessing facilities, such as using safety gates and fences.

Documented impacts on polar bears by the oil and ga s industry in the Beaufort Sea during the past 30 years are minimal. Polar bears spend time on la nd, coming ashore to feed, den, or move to other areas. Recent observations suggest that bears are increasing time on land, perhaps in response to changing ice conditions. Annual monitoring repo rts from Industry activ ities and community

observations indicate that fall storms force bear s to concentrate along the coastline where bears

remain until the ice returns. For this reason, polar bears have been encountered at or near most coastal and offshore production facil ities, or along roads and causeways that link these facilities to

37the mainland. During those periods, the likelihood of interactions between polar bears and Industry

activities increases. Most bears are observed within 1.6 km (1.0 mi) of the coastline. Similarly, we expect intermittent periods with high concentrati ons of bears in the coastal habitat to occur along

the Beaufort Sea coastline wher e Industry activity is operating.

The majority of actual impacts on polar bears in the Beaufort Sea have resulted from direct human– bear encounters. Monitoring efforts by Industry re quired under Beaufort S ea Regulations resulted in the documentation of various types of interacti ons between polar bears a nd Industry. A total of

269 LOAs have been issued for inci dental (unintentional) take of polar bears in regard to oil and gas activities from 1993 to 2005; approximately 76 percent were for exploration activities. In 2004, the most recent year in which records are co mplete, the oil and gas industry reported 89 polar bear sightings involving 113 indivi dual bears. Polar bears were more frequently sighted from August to January. Seventy-four sightings were of single bears and 15 sightings consisted of family groups. Offshore oil facili ties, Northstar and Endicott, acc ounted for 63 percent of all polar bear sightings, 42 percent and 21 pe rcent, respectively. This shows that Industry activities that occur on or near the Beaufort Sea coast have a gr eater possibility for encountering polar bears than Industry activities occurring inland. Fifty-nine percent (n = 53) of pol ar bear sightings consisted of observations of polar bears traveling through or resting near the mon itored areas without a perceived reaction to human presen ce. Forty-one percent (n = 36) of polar bear sightings involved Level B harassment, where bears were deterred from industrial areas with no injury.

Offshore production islands, such as the Northsta r production facility, co uld potentially attract polar bears. In 2004, Northstar accounted for 41 percent of all polar be ar observations Industrywide. They reported 37 sightings in which 54 pol ar bears were observed. Most bears were observed as passing through th e area. Such offshore facilities could potentially increase the rate of human-bear encounters, whic h could result in increas ed incident of harassment of bears. Employee training and company policies reduce and mitigate such encounters.

In the past, such interactions have been mitigat ed through conditions in the LOA, which require the applicant to develop a polar bear interaction plan for each operation. These plans outline the steps the applicant will take, such as garbage disposal procedures, to minimize impacts to polar bears by reducing the attraction of Industry act ivities to polar bears. Interac tion plans also outline the chain of command for responding to a polar bear sightin g. In addition to interaction plans, Industry personnel participate in polar bear interaction training while on site.

Employee training programs are designed to educat e field personnel about the dangers of bear encounters and to implement safety procedures in the event of a bear sigh ting. The result of these polar bear interaction plans and training allows pe rsonnel on site to detect bears and respond safely and appropriately. Often, personne l are instructed to leave an area when bears are seen. Many times polar bears are monitored until they move out of the area. Sometimes, this response involves deterring the bear from the site. If it is not possible to leave, in most cases bears can be displaced by using pyrotechnics (e.g., cracker shells) or othe r forms of deterrents (e.g., the vehicle itself, vehicle horn, vehicle siren, vehicle lights, spot lights, etc.). The purpose of these plans and training is to eliminate the potential for in jury to personnel or lethal take of bears in defense of human life. Since the Regulations went into effect in 1993, there has been no known in stance of a bear being killed or Industry personnel being injured by a bear as a result of I ndustry activities. The

38mitigation measures associated with these regula tions have been proven to minimize human-bear interactions and will continue to be requi rements of future LOAs, as appropriate.

There is the potential for human activity to contact polar bear de ns as well. Known polar bear dens, found as a result of radio-collared, pregna nt females or verifica tion by scent-trained dogs, around the oilfield are monitored by the Service. These are only a small percentage of the total active polar bear den locations in the action area in any given year . Industry routinely coordinates

with the Service to determine the location of In dustry’s activities rela tive to known dens and denning habitat. General LOA pr ovisions require Industry operati ons to avoid known polar bear dens by 1.6 km (1 mi).

There is the possibility that an unknown den may be encountered dur ing Industry activities as well. Once a previously unknown den is identified by Industry, th e Service requires the den be reported. Communication between Industry a nd the Service and the implementation of mitigation measures, such as the 1.6-km (1-mi) exclusion area around the now known den, will ensure that disturbance is

minimized.

Vessel traffic could result in short- term behavioral reactions by polar bears. If a ship is surrounded by ice it is more likely that curious bears will approach. Any on-ice activities required by exploration activities crea te the opportunity for bea r-human interactions. In relatively ice-free waters, polar bears are less likely to approach ships, although they ma y be encountered on ice floes. For example, during the late 1980s, at the Belcher expl oration drilling site in the Beaufort Sea, in a period of little ice, a la rge floe threatened the drill rig at th e site. After the floe was moved by an icebreaker, workers noticed a female bear w ith a cub-of-the-year a nd a lone adult swimming nearby. It was assumed these bears had been disturbed from the ice floe.

The Service expects the trends in the Beaufort S ea to continue, including: a higher frequency of polar bears observed on land during fa ll and early winter months; singl e bears seen more frequently than family groups; and a higher percentage of bears observed passing thr ough Industry areas than the percentage of bears i nvolved in interactions.

Adoption of the following measures that are re quired by the Regulations will reduce potential impacts from drilling and human-induced disturban ce: (1) development of a polar bear interaction plan; (2) maintenance of a 1.6-km (1.0-mi) buffe r between industry activ ities and known denning sites to limit disturbance to the bear; and (3) den detection surveys th rough the use of FLIR technology, coupled with trained dogs, to locate or verify occupied polar bear dens. Furthermore, as part of the LOA application for seismic su rveys during denning season, Industry provides the proposed seismic survey routes. To minimize the likelihood of disturbance to denning females, the

Service will evaluate these routes along with information about known polar bear dens, historic denning sites, and delineat ed denning habitat.

Adoption of mitigation measures to reduce human -bear encounters include: (1) use of detection systems, such as bear monitors, motion and infrared detection systems; (2) use of safety gates and fences; (3) development of a polar bear interaction plan for each operation that outlines steps the applicant will take, such as garbage disposal and snow management pr ocedures; (4) outline the

39chain of command for responding to a polar bear sighting; and (5) requirement that personnel participate in polar bear interaction training.

Prior to issuance of regulations, lethal takes by Industry were ra re. Since 1968, there have been only two documented cases of lethal take of polar b ears associated with oil and gas activities. In both instances, the lethal take was reported to be in defense of huma n life. In winter 1968–1969, an Industry employee shot and killed a polar bear. In 1990, a female polar bear was killed at an exploratory drill site on the west si de of Camden Bay. In contrast, 33 polar bears were killed in the

Canadian NWT from 1976 to 1986 due to encounters with Industry. Since the beginning of the U.S. incidental take program, which includes m easures that minimize impacts to the species, no polar bears have been killed due to encounters associated with Industry activities on the North Slope. For this reason, Industry has requested that these regulations cover only non-lethal, incidental take. Based upon the demonstrated effec tiveness of the mitigation measures put in place by these Regulations, the Service an ticipates that Industry explora tion activities will result in nonlethal disturbance of polar bears

In summary, inclusion of the above mitigation re quirements, as well as other measures described that may be required in individual LOAs, the Serv ice concludes in the Regulations that only small numbers of polar bears would be potentially taken by harassment (as defined by the MMPA) from drilling and human-indu ced disturbance.

Effect on Prey Species Ringed seals are the primary prey of polar bears and i nhabit the nearshore waters where offshore Industry activities occur. Indus try will mainly have an effect on seals through the potential for contamination (oil spills) or industrial noise disturbance. Some effects of contamination from oil discharges for seals are descri bed in the following section, Oil and Fuel Spills

.

Studies have shown that seals can be displaced from certain areas, such as pupping lairs or haulouts, and abandon breathing holes near Industry activity. Howeve r, these disturbances appear

to have minor effects and are short term. In one study, no slope-wide effect s of Industry activity on ringed seals could be measured.

Oil and Fuel Spills The possibility of oil and waste product spills from Industry activ ities and the subsequent impacts on polar bears are a major concern to the Service. Polar bears could encounter oil spills during the open-water and ice-covered seasons in offshore or onshore habitat. Although the majority of the polar bears in the action area spe nd a large amount of their time offshore on the pack ice, some bears are likely to encounter oil from a spill regardless of the season and location.

Spills are unintentional releases of oil or petroleu m products and it is not legal to discharge oil into the environment. However, accide ntal spills of oil and refined products may occur in association with Industry exploration activities, so their potential occurren ce and impacts to polar bears are

described. MMS describes the hist ory of oil spills associated with the oil and gas industry in Northern Alaska (OCS EIS/EA MMS 2007-026, http://www.mms.gov/alaska/ref/EIS% 20EA/Chukchi_FEIS_193/feis_193.htm).

40A reporting system requires operators to report spills in accordance with the National Pollutant Discharge Elimination System Permit Program, a nd all North Slope oil companies must prepare and submit an oil spill continge ncy plan. According to MMS, 35 exploratory wells have been drilled on the Beaufort and Chukchi OCS, during which 35 small spills occurred totaling 26.7 barrels (1,120 gallons), of which approximately 24 barrels were recovered or cleaned up. By Industry standards, small spills ar e <50 barrels while large spills are > 500 barrels. There is potential for refined product sp ills from marine vessels during exploration activities and the Industry history indicates the likeli hood is that most will be localized and relatively small. Spills in

the offshore or onshore environments classified as minor could occur during normal operations (e.g., transfer of fuel, handling of lubricants and li quid products, and general maintenance of equipment). To date, no major exploratory offshor e oil spills have occurred on the North Slope in

either the Beaufort or Chukchi seas.

Larger spills associated with Alaskan oil a nd gas activities on the North Slope have been production–related, and have occurred at producti on facility or pipeline c onnecting wells to the Trans-Alaska Pipeline System. In addition to ons hore sites, this could include offshore facilities, such as causeway-linked Endicott or the sub-sea pi peline-linked Northstar Island. The trajectories of large offshore spills from Northstar and the pro posed Liberty facilities were modeled to examine potential impacts to polar bears and were discussed in the fina l Regulations (71 FR 43938-43941).

Oil spills in the marine environm ent that can accumulate at the ice edge, in ice leads, and similar areas of importance to polar bears are of particular concern to the Serv ice. Likewise, oil spills from offshore production activities, such as Northstar, are of concern because as additional offshore oil exploration and production (e.g., th e Oguruk and Nikaitchuq projects ) occurs, the potential for large spills in the marine environment increases. The Northstar Project tran sports crude oil from a gravel island in the Beaufort Sea to shore vi a a 9.5-km (5.9-mi) buried sub-sea pipeline. The pipeline is buried in a trench in the sea floor deep enough to re duce the risk of damage from ice gouging and strudel scour. Production of Norths tar began in 2001, and currently an estimated 70,000 barrels of oil pass through the pipeline dail y. However, spill response and clean-up of an oil spill, especially in broken- ice conditions is still problematic where it is unknown if oil could be effectively cleaned up. During the history of Industry operation activities on the North Slope (1985-2006), six large terrestrial spills occurred that posed minima l risk to polar bears (USFWS 2008).

During the ice-covered season, mobile, non-denning bears would have a hi gher probability of encountering oil or other production wastes than non-mobile, denning females. Current management practices by Industry, such as requiring the proper use, storage, and disposal of hazardous materials, minimize the potential occurrence of such incidents. In the event of an oil spill, it is also likely that polar bears would be inte ntionally hazed to keep them away from the area, further reducing the likelihood of impacting the population.

Oil may also affect food sources of polar bears. A local reducti on in ringed seal numbers as a

result of direct or indir ect effects of oil could, th erefore, temporarily affect the local distribution of polar bears. A reduction in density of seals as a direct result of mortality from contact with spilled oil could result in polar bears not using a particul ar area for hunting. Possible impacts from the

loss of a food source could reduce recr uitment or survival. Also, seals that die as a result of an oil

41spill could be scavenged by polar bears. Th is would increase exposure of the bears to hydrocarbons and could result in lethal impact or reduced survival to individual bears.

Based upon the reported effects of cr ude oil exposure on polar bears (see 4. Environmental

Baseline - Environmental Contaminants ), the Service believes an oil spill or refined product discharge contacting a polar bear likely would result in its death. To date, large oil spills from Industry activities in the Beaufort Sea and coastal regions that w ould impact polar bears have not occurred, although the development of offshore pr oduction facilities and pi pelines has increased the potential for large offshore oil spills. With limited background information available regarding oil spills in the Arctic environment, it is not certa in what the outcome of su ch a spill would be if one were to occur. In a large spill (e.g., 5,900 barrels: the size of a rupture in the Northstar pipeline and a complete drain of the subsea portion of th e pipeline), oil would be influenced by seasonal

weather and sea conditions. These would include temperature, winds, and, for offshore events,

wave action and currents. Weathe r and sea conditions would also affect the type of equipment needed for spill response and how effective spill cleanup would be. Indeed, spill response drills have been unsuccessful in the cleanup of oil in broken-ice conditions. In addition, based on cleanup activities with the Exxon Vald ez oil spill, spill response may be largely unsuccessful in open water conditions. These factors, in turn, would dictat e how large spills im pact polar bear and

walrus habitat and numbers.

The major concern regarding large oil spills is th e impact a spill would have on the survival and

recruitment of the SB stock. Currently, this bear population is approximately 1,500 bears. Recently, harvest levels generally do not exceed 50 bears in the Beaufort See (divided between Canada and Alaska). The population may be able to sustain the additional mortality caused by a large oil spill of a small number of bears, such as 1 to 5 individua ls; however, the additive effect of a worst-case scenario, such as numerous bear deaths (i.e., in the range of 20 to 30) due to direct or indirect effects from a large oil spill, may re duce population rates of recruitment or survival. Indirect effects may occur through a local reduction in seal productivity or s cavenging of oiled seal carcasses coupled with the subsistence harvest and other potential impacts, both natural and human-induced. The removal of a large numbe r of bears from the population would exceed sustainable levels, potentially causing a decline in the bear population and affecting bear productivity and subsistence use.

Potential impacts of Industry waste products and o il spills suggest that i ndividual bears could be impacted by the disturbances. Depending on the am ount of oil or wastes involved, the timing and location of a spill, impacts could be short-term, ch ronic, or lethal. In order for bear population reproduction or survival to be impacted, a large-vo lume oil spill would have to take place. In assessing the effects of the activities to be cove red by the Regulations, the Service conducted an oil spill risk assessment analysis that considered the oil spill probability for two sites (Northstar and Liberty), oil spill trajectory models, and a polar bear distribution model based on location of satellite-collared females during September and Octobe r. A detailed description of the assessment, including methodology, can be found in the final rule promulgating these Regulations (71 FR 43938-43941). Using two different tec hniques, the analysis calculated the probabilities of an oil spill occurring during various ice conditions. Fo r the fall broken ice period (the timeframe hypothesized effects of an oil-spi ll would be greatest), the probabi lity of an oil spill from the Northstar and Liberty facilities were calculated to range from 0.4-1.4 percent and 0.2-0.4 percent,

42respectively, for the 5-year Regulations. Additiona lly, the analysis found that the probability that an oil spill during the fall would be more likely to affect small numbers of bears (5 bears). For Northstar, the probability of a spill causing the mortality of 5 or more bears ranged from 1.0-3.4 percent; 10 or more bears was 0.7-2.3 percent; and 20 or more bears was 0.2-0.8 percent. For Liberty, the probability of a spill causing the mort ality of 5 or more bears ranged from 0.3-7.4 percent; 10 or more bears was 0.1- 0.4 percent; and 20 or more bears was 0.1-0.2 percent. This analysis, as well as the history of oil spills in the Beaufort Sea, suggested that it is not reasonably certain that an oil spill would occur as a result of the activities covered in the Beaufort Regulations during the time period for which the Regulations are in effect, and that even if such a spill were to occur, there is a low probability that 5 or mo re polar bears would be exposed to the spill.

Impacts on the Physical Environment

The action area is limited to the Beaufort Sea west of the Canadian border. The activities covered by the Regulations include exploration, developm ent, and production operations of oil and gas reserves, as well as environmental monitoring associated with these activities.

Once an Industry project has been proposed, the Serv ice will evaluate the proj ect in regards to polar bears through a requested LOA per the process provi ded by the Regulations. With inclusion of all appropriate mitigation measures, plus any other m easures incorporated into an LOA, the Service has determined that the proposed action would result in no measur able impacts to the physical

environment.

Interdependent and Interrelated Actions Interdependent actions are defined as actions ha ving no independent utility apart for the proposed action, while interrelated actions are defined as acti ons that are part of a larger action and depend upon the larger action for their ju stification (50 CFR §402.02). The Service has not identified any activities that are interdependent or inte rrelated with the proposed Regulations.



### 6. Cumulative Effects

Under the ESA, cumulative effects are the effects of future State, Tribal, local or private actions that are reasonably certain to occur in the action ar ea considered in this BO. Future Federal actions that are unrelated to the proposed action are not consider ed in this section because they require separate consultation under the ESA. Analysis of the following threats was provided in Schliebe et al. (2006), and the Final EA Beaufort Sea Incidental Take Regulations (June 2006).

Subsistence Harvest The most significant source of polar bear mort ality is man. Before MMPA was enacted in 1972, polar bears were taken by sport hunters and resi dents. Between 1925 and 1972, the mean reported harvest in Alaska was 186 bears per year. Seventy- five percent of these were males, as cubs and females with cubs were protected. Since 1972, only Alaska Natives from coastal Alaskan villages have been allowed to hunt polar bears for their su bsistence uses or for hand icraft and clothing items

for sale. The Native hunt occurs without restri ctions on sex, age, or number provided that the population is not determined to be depleted. From 1980 to 2005, the total annual harvest for Alaska averaged 101 bears: 64 percent from the Chukc hi Sea and 36 percent from the Beaufort Sea.

43Other sources of mortality rela ted to human activities include bears killed during research activities, euthanasia of sick and/or injured be ars, and defense of life kills by non-Natives (Brower et al. 2002). A management c oncern is the possible inadverten t over-harvest of the SB stock, particularly if they become in creasingly nutritionally-stressed or populations decline due to the combination of the threats due to loss of sea ice, increased atmospheric and oceanic transport of contaminants into the region, increases in both expanse and duration of open water in summer and fall; human activities, including hydrocarbon explora tion and development within the near-shore

environment.

Marine Vessel Traffic Polar bears spend the majority of their time on p ack ice during the open-water season, which limits their interaction with fishing vessels and barge traffic. However, polar bears are known to run from sources of noise and the sight of vessels. The effects of fleeing may be minimal if the event is

short and the animal is otherwis e unstressed, but a short run on a warm spring or summer day could overheat a polar bear. If predicti ons for the decrease in the tempor al and seasonal extent of the sea ice are realized, more vessels may transit the area encountering polar be ars more frequently. Researchers have observed bears may swim long distances during the open water period seeking either ice or land. With diminished ice, swimmi ng bears may become vulnerable to exhaustion and storms because ice floes are dissipating and unavaila ble or unsuitable for use as haul outs or resting platforms.

As discussed throughout 5. Effects of the Action , observation of polar bear reactions to industry or military vessels indicates polar bear reactions tend to be short-term and limited to minor changes

in behavior.

Summary of Cumulative Effects Hunting pressure, loss of sea ice and climate change (see 4. Environmental Baseline ), and the expansion of commercial activities into polar bear habitat have poten tial to impact polar bears. Combined, these factors could present significant challenges to future conservation and management efforts. The success of future mana gement efforts will rely in part on continued investments in research investig ating population status and trends and habitat use patterns. The effectiveness of various mitigation measures and management actions will need to be continually evaluated through monitoring programs.



### 7. Conclusion

Service Findings under ESA After reviewing the current status of the polar be ar; the environmental base line for the Beaufort Sea Regulations action area; the effect s of the Regulations; documented impacts of I ndustry activities on the species; data provided by monitoring pr ograms in the Beaufort Sea (1993–2006) and the Chukchi Sea (1991–1996); and the cumulative effects; it is the Service’s biological opinion that the Regulations, as promulgated, are not likely to jeopar dize the continued existence of the polar bear. Critical habitat has not been designated or proposed for the polar bear ; therefore none will be destroyed or adversely modified.

44Regulations (50 CFR 402) that implement sectio n 7(a)(2) of the ESA define “jeopardize the continued existence of” as to enga ge in an action that reasonably would be expected, directly or indirectly, to reduce appr eciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that sp ecies. For the issuance of incidental take regulations under the MMPA, the Service must (1) find, based on the best scientific evidence available, that the total take for the specified time period will have a negligible impact (i.e., an impact that cannot be reasonabl y expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival) on the species or stock and will not have an unmitigab le adverse impact on the availability of the species or stock for subsistence uses; (2) prescrib e regulations setting forth permissible methods of taking and other means of effecting the least prac ticable adverse impact on the species and its habitat and on the availability of the species fo r subsistence uses, and (3 ) prescribe regulations pertaining to the monitoring and reporting of such taking (50 CFR 18.27(b)). In making such determinations, the Service must consider inform ation regarding the effect s of the activity on the species as described in imple menting regulations for section 101(a)(5) of the MMPA (50 CFR 18.27(d)) as well as conduct a NEPA an alysis that results in a similar evaluation to that required for making the “jeopardy/no jeopardy” ca ll under section 7 of the ESA.

While there is significant overlap in the inform ation and evaluation required to make the jeopardy and negligible impact determinati ons, there may be significant differe nces in (1) the portion of the species’ population evaluated (i.e., the listed entity versus the eff ected stock(s), respectively) and (2) the threshold of the e ffects that trigger a negative determin ation (i.e., the acti on will jeopardize the species, or the action has more than a negligib le effect). With regard to the polar bear, the portion of the population evaluated for a jeopardy de termination is the range -wide population as the species is listed in its entirety. For the negligible impact determ ination, however, only those stocks which are potentially affected by the Regulations ar e evaluated (i.e., Southern Beaufort Sea stock). Further, the thresholds of the effects of im pacts being evaluated are significantly different, essentially the difference between not adversely affecting a species or stock versus jeopardizing the continued existence of the species. It is reasonable to expect th at an action being independently

evaluated under the MMPA and the ESA would be de termined to have more than a negligible impact before, and in some cases well before, a jeopardy determination would be made.

Although Industry activities may adve rsely affect a small number of polar bears within the action area, mitigating measures, as identified in §18.124 of the Regulations, included in project-specific LOA request will reduce the potential for exposure to adverse effects through temporal and spatial separation between polar bears and Industry activities, and reduce poten tial adverse effects in cases of unavoidable interactions (e.g., curious bear s drawn to the activity ) and unintentional, unauthorized consequences of the activities (e.g., oil spills). In addition to these mitigating measures, other project specific mitigating measur es may be required through the issuance of an LOA per §18.128 of the Regulations. The Regula tions, while allowing a “small number” of animals to be incidentally taken by harassment, provide a mechanism requiring that mitigating measures are implemented, monitored, and reporte d on annually. Thus, the Regulations contribute

to the collection of additional information that will aid in de veloping and/or further refining mitigating measures for future Industry activities.

45Based on the above evaluation and the fact that (1) the Regulations do not authorize lethal take, (2) the Beaufort Sea Regulations have been in place almost continuously since 1993, and (3) a small number bears are likely to interact with Industry, and those that interact are likely to alter their behavior only temporarily if at all, the Service believes that the existing Beaufort Sea Incidental Take Regulations under the MMPA will not appreci ably reduce the likelihood of survival and recovery of the polar bear, and therefore are not likely to jeopardize thei r continued existence.



### 8. Administration of the Programmatic Biological Opinion

This BO is structured in a “progr ammatic,” tiered approach, with this document serving as Tier 1. The Tier 1 BO does the following:

• Evaluates the issuance of the Beaufort Sea Incidental Take Regulat ions per requirements under section 7 of the ESA and its implementing regulations (50 CFR 402);

• Clarifies the regulatory dependence upon the take analysis required under the MMPA for ESA incidental take evaluation;

• Concludes that the proposed action will not jeopardize the continued existence of the species; and

• Provides the process for conducting Tier 2 consultation (below and Appendix 3).

The Tier 1 BO relies on the negligible impacts a nd small numbers analysis (see explanation below) in the Incidental Take Regulations to evaluate the proj ected level of take. Because project-specific information is not known until a request for an LOA is made under the Regulations, the Service defers authorizing incidental take until such requests are made (i.e., Tier 2).

Tier 2 of this programmatic cons ultation is triggered when Indus try requests an LOA from MMM. The request for the LOA will also serve as a requ est for Tier 2 consultati on. A separate Tier 2 consultation will be required for each LOA reque sted under the Regulations. To track the take projections in the Regulations and in order for the Tier 2 BO to be consistent with the “no jeopardy” conclusion of the Tier 1 BO and an incide ntal take statement (ITS) to be issued: (1) the proposed activity must provide the required information, as described in §18.124 of the Regulations, (2) the LOA includes any mitigation m easures that the MMM believes appropriate for the specific activity and locat ion, as described in §18.128 of the Regulations, and (3) the MMM

must determine that the incidental take for th e specific activity will be consistent with the negligible impact finding for the tota l take allowed under the Regulations.

Upon receipt of the request MMM will:

• Determine whether the request falls within the parameters established in the Beaufort Sea Regulations and the Tier 1 BO

 If yes, the Tier 2 process will continue.

 If no, additional evaluation is necessary to determine if LOA/ITS mitigation measures will be sufficient to bring the request within the parameters of the Regulations and Tier

1 BO.

46o If additional measures are sufficient and can be implemented by the applicant, the

Tier 2 consultation will continue.

o If additional measures are not sufficient and/or cannot be implemented by the applicant, a separate consultation may be re quired. It is import ant to note, however, that an ITS under the ESA cannot be given for a marine mammal if the take is not covered under section 101( a)(5) of the MMPA (i.e., through Regulations/LOA or an Incidental Harassment Authorization).

• For requests that fall within the parameters of the Regulations and Tier 1 BO, issue a combined LOA/ITS that will provide incide ntal take coverage under both Acts (see Appendix 3). Issuance of the LOA/ITS c oncludes ESA consultation for that action.

• Each LOA will require a comprehensive final re port of all take, which will be provided to the MMM. The report will cover required co mpliance with both the MMPA’s the ESA’s requirement to monitor take.

The above programmatic approach integrates the ESA with the exis ting incidental take regulation/LOA process that MMM has been conduc ting since 1991 on oil and gas activities in the

Beaufort and Chukchi seas. The combined LOA/ ITS language provided in Appendix 3 is intended to meet the legal requirements of both Acts and provide for the greatest conservation benefits

allowable under both Acts. This reduces duplication of effort by taking advantage of overlapping areas of the Acts, adding only what is uni quely required through s ection 7 of the ESA.

While the ITS is technically provided to the Se rvice’s MMM and the LOA app licant, we anticipate that other Federal agencies involved in permitting the exploration actions covered by the Beaufort Sea Regulations will also seek to fulfill their section 7 responsibil ities by seeking consultation with the Service. So long as the activities covered by such consultations comply with the MMPA incidental take regulations, we w ould expect these consultations to be completed by linking to this

intra-Service biol ogical opinion.



### 9. Incidental Take Statement

By virtue of establishing the special rule for polar bears (73 FR 28306-28318; May 15, 2008) and by virtue of the Service making the appropriate determinations under th e MMPA, the activities covered by this consultation are exempt from an y take prohibitions that might otherwise apply under the ESA. Section 7(b)(4)(C )(iii) of the ESA, however, re quires the issuance of an ITS, which “specifies those measures that are necessary to comply with” the MMPA. This ITS replicates, rather than being addi tive to, any requirements and obliga tions necessary to comply with

the MMPA.

Section 9 of the ESA and Federal regulations pursuan t to section 4(d) of the ESA prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, ca pture, or collect, or to attempt to engage in any such conduct. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, includ ing breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to

47listed species to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is de fined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under th e ESA provided that such taking is in compliance with the term s and conditions of this ITS.

The measures described below are non-discretionar y, and will be binding conditions of any permit issued to an LOA applicant for the exemption in section 7(o)(2) of the ESA to apply. MMM will regulate the activity covered by this incidental take statement to ensure the LOA holder adhere to the terms and conditions of the ITS through enforceable terms that are added to the permit or grant document, so that the protective coverage of section 7(o)(2) does not lapse. In order to monitor the impact of incidental take, the MMM will provid e annual monitoring reports to the FFWFO as specified in the ITS. [50 CFR 402.14(i)(3)]

In the accompanying BO, the Service determined th at total take anticipated as a result of the issuance of the Regulations under section 101(a)(5 )(A) of the MMPA is not likely to result in jeopardy to the polar bear. No le thal take is anticipated. While the Service cannot anticipate the specific amount or extent of other types of ta ke that may result from activities that may be authorized under the Regulations until they are proposed and the specific activities and location is known, the negligible effects finding and the small numbers determination articulates the anticipated amount of take with resp ect to effect on the population.

The Service believes that mitigating measures re quired by the Regulations and to be included in site-specific LOAs will provide a thorough and effective mechanism for minimizing potential adverse impacts of oil and gas activities on polar bears. The Service does not identify additional necessary measures to reduce im pacts under the ESA because the Service believes all identified measures to mitigate impacts are included in th e Regulations or will be required in LOAs. Therefore, the following Reasonable and Prude nt Measure and its implementing terms and conditions require compliance with mitigating measures provided through the MMPA Regulations and LOA processes. The measure and its implem enting terms and conditions are provided in the Tier 1 BO so that MMM may incorporate them into the LOA (Tier 2) process.



### 10. Reasonable and Prudent Measures

The Service believes the following reasonable and prudent measure is necessary and appropriate to minimize the impacts of incident al take of polar bears:

1. Reduce adverse impacts to polar bears from oil and gas exploration, development, and production activities by incorporating all standa rd mitigation measures identified in the Incidental Take Regulations and all site specific mitigation measures included in

individual LOAs.

48

### 11. Terms and Conditions

In order to be exempt from the prohibitions of section 9 of the ESA, the MMM must comply with the following terms and conditions, which implement the reasonable and prudent measure

described above and outline re quired reporting/monitoring requirements. These terms and conditions are non-discretionary.

1. MMM will require the implementation of appr opriate mitigation measures of Industry applicants to minimize impact s to polar bears through the In cidental Take Regulations and project specific Lett er of Authorization.

2. LOA monitoring reports will be provided to the MMM upon project conclusion by the Industry operator. Reports shall include, but not be limited to, (1) the amount of take anticipated and type of take authorized in each LOA/ITS, (2) the amount and type of take that actually occurs, and (3) other polar bear observations that di d not result in take.

As lethal take is not anticipate d, specific procedures for handling or disposing of carcasses (50 CFR 402.14(i)(1)(v)), are not necessary.



### 12. Conservation Recommendations

Section 7(a)(1) of the ESA directs Federal agenci es to utilize their authorities to further the purposes of the ESA by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a propos ed action on listed species or crit ical habitat, to help implement recovery plans, or to develop informati on. The Service has the following conservation

recommendation for this action.

• The status of polar bears in the SB and CS stocks needs to be monitored throughout the duration of these Regulations. The Service ha s particular concern about the response of polar bears, at the individual and population levels, to the quickly changing environmental

conditions in the action area of the Beaufo rt Sea and coastal northern Alaska. It recommends the Service and its agents in th is action (permitting agencies and Industry) promote collection of baseline data to help increase understanding of how the effects of climate change will affect polar bears inhabiting Alaska, ( http://alaska.fws.gov/fisher ies/mmm/polarbear/issues.htm ). For example, ongoing studies include those led by the USGS Al aska Science Center, in coope ration with the Service, to examine polar bear habitat use, reproduction, and survival relative to a changing sea-ice environment. Specific objectives are to evalua te polar bear habitat av ailability and quality as influenced by ongoing climate changes and res ponse by polar bears; effects of changes in sea-ice environment on condition of adults, numbe rs and sizes of offspring, and survival of offspring to weaning (recruitment ); and population structure.

49

### 13. Re-initiation Notice

This concludes formal consultati on on effects to polar be ars on the existing Beaufort Sea Incidental Take Regulations. As provided in 50 C.F.R. 402.16, re -initiation of formal consultation is required where discretionary Federa l agency involvement or control over the action has been retained (or is authorized by law) and if:

(1) The amount or extent of inci dental take is exceeded; (2) New information reveals effects of the action agen cy that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) The agency action is subsequently modified in a ma nner that causes an effect to listed or critical

habitat not considered in this opinion; and/or (4) A new species is listed or critical habitat designated that may be affected by the action.

Thank you for your cooperation in the developmen t of this conference opinion. If you have any comments or require additional information, please contact Ted Swem, Endangered Species Branch Chief, Fairbanks Fish and Wildlife Field Office, 101 12 th Ave., Fairbanks, AK, 99701, Telephone:

907/456-0441.

50

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62From: Marine Mammals; Incidental Take During Specified Activities (Fin al Rule); 71 FR 43951

63

### Appendix 1. Summary of Conference/Consultation Activities

1/7/08 – FFWFO conference call with RO ES and MMM staff to discuss polar bear conferences.

RO identified need for intra-service Sec 7 conf erence/consultation on Chukchi Sea and Beaufort Sea ITRs. Overall new polar be ar workload was discussed.

1/8/08 – Conference call with RO and WO ES staff regarding polar bear conferences/consultations. Proposed Chukchi Sea ITRs are scheduled to come out about March 1.

2/11/08 – Polar bear coordination meeting be tween FFWFO and MMM at Anchorage Regional office; intra-Service conferences on C hukchi and Beaufort ITRs discussed.

2/26/08 – Conference call between FFWFO, MMM, and RO and WO ES, and AK and WO

Solicitors to discuss MMPA/ESA coordination issues identifie d in the Draft Chukchi ITR Conference Opinion (relevant, also, to Beaufort Sea ITRs conference).

3/31/08 – A 90-day detailee arrives in FF WFO to work solely on polar bear conference/consultations; Chukchi ITRs are highest priority in detailee’s workload.

5/15/08 – Final rule to list the polar bear as a threatened spec ies under the ESA and interim final 4(d) rule are published in the Federal Register ; both are effective im mediately. Conferences

become consultations.

5/29/08 – FFWFO finalizes BO. Beaufort Sea IT Rs consultation becomes detailee’s priority

workload.

6/10-12/08 – FFWFO worked with MMM to update pr oject description, effects of the action, etc., based on new information and any LOAs issued since the Beaufort ITRs were issued.

6/16/08 – Draft BO sent to RO, MMM, WO, and Solicitors for review.

6/23/08 – FFWFO finalizes BO.

6465 

### Appendix 2.

LOA/ITS Content

The Letter of Authorization Cover Letter will include these statements:

Per the Programmatic Biological Opinion for th e Beaufort Sea Incident al Take Regulations for Polar Bear (June 2008), your request al so triggers the sec ond of the two-tiered programmatic process.

The LOA also serves as an “Incidental Take Statement” (ITS), require d under section 7 of the Endangered Species Act of 1973 (ESA), in order for incidental take of the polar bear to be exempted from the prohibitions of the ESA. Issuance of the LOA/ITS fulfills the requirements for Tier 2 Consultation of the Programmatic Biological Opinion for the

activities described in this letter.

The following statement should be included in the body of the LOA:



### INCIDENTAL TAKE STATEMENT

Polar Bear

In the Programmatic Biological Opinion for Polar Bears ( Ursus maritimus ) on Beaufort Sea Incidental Take Regulations” (June 2008; Tier 1 BO), the Service determined that the total take anticipated as a result of the issu ance of the Regulations is not lik ely to result in jeopardy to the polar bear, in accordance with section 7 of the Endangered Species Act of 1973, as amended (ESA). In order for the Tier 2 BO to be consiste nt with the “no jeopardy” conclusion of the Tier 1 BO and an incidental take statement (ITS) to be provided: (1) the propose d activity must provide the required information, as described in the §18.124 of the Regulations, (2) the LOA includes any mitigation measures that the MMM believes appropr iate for the specific activity and location, as described in §18.128 of the Regulations, and (3) the MMM must determine that the incidental take for the specific activity will be consistent with the negligible impact finding for the total take allowed under the Regulations.

A reasonable and prudent measure and implemen ting terms and conditions were included for MMM in the Tier 1 BO and have been incorporated into the LOA process. Issuance of this ITS with the LOA completes ESA requirements for authoriz ation of incidental take of the polar bear. Compliance with the terms and conditions of the a bove LOA insures that the LOA holder is also in compliance with the ESA.

Documentation of Take A requirement of each LOA is to provide observa tional data of polar bears throughout the project and a complete report of all observations at the conclusion of the project. This final report will be provided to the MMM. This report meets the trac king and reporting requirements relative to the documentation of take as required by the MMPA and the ESA.