[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Proposed Rules]
[Pages 17131-17135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8519]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 090224232-9334-02]
RIN 0648-AX50


Endangered and Threatened Species: Advance Notice of Proposed 
Rulemaking to Designate Critical Habitat for Cook Inlet Beluga Whales

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking; request for information.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), will be 
designating critical habitat for the endangered Cook Inlet beluga whale 
(Delphinapterus leucas) under the Endangered Species Act (ESA). The 
designation will involve areas within Cook Inlet, Alaska. This advance 
notice of proposed rulemaking (ANPR) identifies issues for 
consideration and evaluation and solicits comments regarding these 
issues.

DATES: Comments and information regarding the suggested designation 
process and areas being considered for designation may be sent to NMFS 
(See ADDRESSES) by May 14, 2009.

ADDRESSES: Comments may be sent to Chief, Protected Resources Division, 
NMFS, P.O. Box 21668, Juneau, AK, 99802-1668.

FOR FURTHER INFORMATION CONTACT: Brad Smith, (907-271-3023) or Kaja 
Brix (907-586-7235).

SUPPLEMENTARY INFORMATION:

Rulemaking Background

    We are responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) are threatened or endangered and 
for designating critical habitat for them under the ESA (16 U.S.C. 1531 
et seq.). To be considered for listing under the ESA, a group of 
organisms must constitute a ``species'' which is defined in section 3 
to include ``any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' We consider a group of 
organisms to be a DPS for purposes of ESA listing when it is both 
discrete from other populations and significant to the species to which 
it belongs (61 FR 4722; February 7, 1996). We found the Cook Inlet 
beluga whale population segment to be reproductively, genetically, and 
physically discrete from the four other known beluga populations in 
Alaska, and significant because it is in a unique ecological setting 
for the taxon, and its loss would result in a significant gap in the 
taxon's range. Following completion of a Status Review of the Cook 
Inlet beluga whale under the ESA, we published a proposed rule to list 
this DPS as an endangered species on April 20, 2007. We subsequently 
extended the date for final determination on the proposed action by 6 
months, until October 20, 2008, as provided for by the ESA (section 
4(b)(6)(B)(i)). A Final Rule to list the Cook Inlet beluga whale as an 
endangered species was published on October 22, 2008.

Critical Habitat

    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' This section grants the Secretary of Commerce (Secretary) 
discretion to exclude any area from critical habitat if he determines 
``the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat.'' The Secretary's discretion 
is limited, as he may not exclude areas that ``will result in the 
extinction of the species.''
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
the specific areas within the geographical area occupied by the 
species, at the time it is listed . . ., on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed . . 
. upon a determination by the Secretary that such areas are essential 
for the conservation of the species.''
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement is in addition to the section 7 requirement that Federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.

Issues for Consideration and Evaluation

    Section 4(a)(3) of the ESA requires us to designate critical 
habitat for threatened and endangered species. We are currently in the 
information-gathering phase, compiling information to propose critical 
habitat for the Cook Inlet beluga whale. Sections 3, 4(a), and 4(b) of 
the ESA suggest a number of questions the agency should consider when 
designating critical habitat:
    <bullet> What areas were occupied by the species at the time of 
listing?
    <bullet> What physical and biological features are essential to the 
species' conservation?
    <bullet> Are those essential features ones that may require special 
management considerations or protection?
    <bullet> Are there any areas outside those currently occupied that 
are ``essential for conservation?''

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    <bullet> What are the benefits to the species of critical habitat 
designation?
    <bullet> What economic and other relevant impacts would result from 
a critical habitat designation?
    <bullet> What is the appropriate geographic scale for weighing the 
benefits of exclusion and benefits of designation?
    <bullet> Will the failure to designate any particular area as 
critical habitat result in the extinction of the species?
     Answering these questions involves a variety of biological and 
economic considerations. To ensure that we have the best scientific 
data available, we are issuing this ANPR to solicit information before 
issuing a proposed rule. During the information-gathering phase, we are 
seeking public input and information (see ``Information Solicited'' 
below) and will gather and analyze the best available scientific data 
to inform critical habitat designations. We will then initiate 
rulemaking with the publication of a proposed designation of critical 
habitat, opening a period for public comment and the opportunity for 
public hearings.

Cook Inlet Beluga Whale Biology and Habitat Use

    The beluga whale is a small, toothed whale in the family 
Monodontidae, a family it shares with only the narwhal. Belugas are 
also known as ``white whales'' because of the white coloration of the 
adults. The beluga whale is a northern hemisphere species, ranging 
primarily over the Arctic Ocean and some adjoining seas, where it 
inhabits fjords, estuaries, and shallow water in Arctic and subarctic 
oceans. Five distinct stocks of beluga whales are currently recognized 
in Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea, 
Bristol Bay, and Cook Inlet. The Cook Inlet population is numerically 
the smallest of these, and is the only one of the five Alaskan stocks 
occurring south of the Alaska Peninsula in waters of the Gulf of 
Alaska.
    A detailed description of the biology of the Cook Inlet beluga 
whale may be found in the Proposed Listing Rule (72 FR 19854; April 20, 
2007). Belugas generally occur in shallow, coastal waters, and while 
some populations make long seasonal migrations, Cook Inlet belugas 
reside in Cook Inlet year round. Data from satellite tagged whales 
documented that Cook Inlet belugas concentrate in the upper Inlet at 
rivers and bays in the summer and fall, and then tend to disperse into 
deeper waters moving to mid Inlet locations in the winter. The 
Traditional Ecological Knowledge (TEK) of Alaska Natives and systematic 
aerial survey data document a contraction of the summer range of Cook 
Inlet belugas. While belugas were once abundant and frequently sighted 
in the lower Inlet during summer, they are now primarily concentrated 
in the upper Inlet. This constriction is likely a function of a reduced 
population seeking the highest quality habitat that offers the most 
abundant prey, most favorable feeding topography, the best calving 
areas, and the best protection from predation. An expanding population 
would likely use the lower Inlet more extensively.
    While mating is assumed to occur sometime between late winter and 
early spring, there is little information available on the mating 
behavior of belugas. Most calving in Cook Inlet is assumed to occur 
from mid-May to mid-July (Calkins, 1983), although Native hunters have 
observed calving from April through August (Huntington, 2000). Alaska 
Natives described calving areas as the northern side of Kachemak Bay in 
April and May, off the mouths of the Beluga and Susitna rivers in May, 
and in Chickaloon Bay and Turnagain Arm during the summer (Huntington, 
2000). The warmer waters from these freshwater sources may be important 
to newborn calves during their first few days of life (Katona et al., 
1983; Calkins, 1989). Surveys conducted from 2005 to 2007 in the upper 
Inlet by LGL, Inc., documented neither localized calving areas nor a 
definitive calving season, since calves were encountered in all 
surveyed locations and months (April-October) (McGuire et al., 2008). 
The warmer, fresher coastal waters may also be important areas for 
belugas' seasonal summer molt.
     Cook Inlet belugas are opportunistic feeders and feed on a wide 
variety of prey species, focusing on specific species when they are 
seasonally abundant. Eulachon (locally referred to as hooligan or 
candlefish) is an important early spring food resource for beluga 
whales in Cook Inlet, as evidenced by the stomach of a beluga hunted 
near the Susitna River in April 1998 that was filled exclusively with 
eulachon (NMFS unpubl. data). These fish first enter the upper Inlet in 
April, with two major spawning migrations occurring in the Susitna 
River in May and July. The early run is estimated at several hundred 
thousand fish and the later run at several million (Calkins, 1989).
    In the summer, as eulachon runs begin to diminish, belugas rely 
heavily on several species of salmon as a primary prey resource. Beluga 
whale hunters in Cook Inlet reported one whale having 19 adult king 
salmon in its stomach (Huntington, 2000). NMFS (unpubl. data) reported 
a 14 foot 3 inch (4.3 m) male with 12 coho salmon, totaling 61.5 lbs 
(27.9 kg), in its stomach.
    The seasonal availability of energy-rich prey such as eulachon, 
which may contain as much as 21 percent oil (Payne et al., 1999), and 
salmon are very important to the energetics of belugas (Abookire and 
Piatt, 2005; Litzow et al., 2006). Native hunters in Cook Inlet have 
stated that beluga whale blubber is thicker after the whales have fed 
on eulachon than in the early spring prior to eulachon runs. In spring, 
the whales were described as thin with blubber only 2-3 inches (5-8 cm) 
thick compared to the fall when the blubber may be up to 1 ft (30 cm) 
thick (Huntington, 2000). Eating such fatty prey and building up fat 
reserves throughout spring and summer may allow beluga whales to 
sustain themselves during periods of reduced prey availability (e.g., 
winter) or other adverse impacts by using the energy stored in their 
blubber to meet metabolic needs. Mature females have additional energy 
requirements. The known presence of pregnant females in late March, 
April, and June (Mahoney and Shelden, 2000; Vos and Shelden, 2005) 
suggests breeding may be occurring in late spring into early summer. 
Calves depend on their mother's milk as their sole source of nutrition, 
and lactation lasts up to 23 months (Braham, 1984), though young whales 
begin to consume prey as early as 12 months of age (Burns and Seaman, 
1986). Therefore, the summer feeding period is critical to pregnant and 
lactating belugas. Summertime prey availability is difficult to 
quantify. Known salmon escapement numbers and commercial harvests have 
fluctuated widely throughout the last 40 years; however, samples of 
harvested and stranded beluga whales have shown consistent summer 
blubber thicknesses.
    In the fall, as anadromous fish runs begin to decline, belugas 
again return to consume the fish species found in nearshore bays and 
estuaries. This includes cod species as well as other bottom-dwellers 
such as Pacific staghorn sculpin and flatfishes, such as starry 
flounder and yellowfin sole. This change in diet in the fall is 
consistent with other beluga populations known to feed on a wide 
variety of food. Pacific staghorn sculpin are commonly found nearshore 
in bays and estuaries on sandy substrate (Eschmeyer et al., 1983). 
Flatfish are typically found in very shallow water and estuaries during 
the warm summer months and move into deeper water in the winter as 
coastal water temperatures cool (though some

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may occur in deep water year-round) (Morrow, 1980).
    The available information indicates that Cook Inlet belugas move 
throughout much of the Inlet in the winter months. They concentrate in 
deeper waters in mid Inlet past Kalgin Island, with occasional forays 
into the upper Inlet, including the upper ends of Knik and Turnagain 
Arms. While the beluga whales move into the mid to lower Inlet during 
the winter, ice cover does not appear to limit their movements. Their 
winter distribution does not appear to be associated with river mouths, 
as it is during the warmer months. The spatial dispersal and diversity 
of winter prey likely influence the wider beluga winter range 
throughout the mid Inlet.
    There is obvious and repeated use of certain habitats by Cook Inlet 
beluga whales. Intensive aerial abundance surveys conducted in June and 
July since 1993 have consistently documented high use of Knik Arm, 
Turnagain Arm, Chickaloon Bay and the Susitna River delta areas of the 
upper Inlet. The high use of these areas by belugas is further 
supported by data from satellite tagging studies.
    We considered habitat type and value in our 2008 Cook Inlet Beluga 
Conservation Plan (NMFS, 2008). That document stratified Cook Inlet 
into three regions based upon patterns of beluga habitat use, labeling 
them as valuable habitat types 1, 2, and 3. Type 1 habitat encompasses 
habitats with intensive beluga use from spring through fall, and which 
are important foraging and nursery habitats. Type 1 habitat includes 
all of Cook Inlet northeast of a line drawn from 3 miles southwest of 
the Beluga River across to Point Possession. Type 2 habitat is based on 
less concentrated spring and summer beluga use, and known fall and 
winter use areas. Type 2 habitat is located south of Type 1 habitat and 
north of a line at 60.2500 north latitude. It also extends south along 
the west side of the Inlet following the tidal flats into Kamishak Bay 
around to Douglas Reef, and includes an isolated section within 
Kachemak Bay. Type 3 habitat encompasses the remaining portions of 
their range in Cook Inlet; the southern boundary is an opening into the 
Gulf of Alaska approximately 85 km across from Cape Douglas to 
Elizabeth Island. Type 1 habitat is believed to be the most valuable of 
the three habitat types based on the frequency of use and its 
importance as feeding and calving habitats.

Areas Occupied by the Species at the Time of Listing

    The ESA specifies that critical habitat is that habitat occupied by 
the species ``at the time it is listed'' (ESA section 3(5)(A)(i)). The 
range of Cook Inlet belugas has been previously defined as the waters 
of the Gulf of Alaska north of 58 oN. and freshwater tributaries to 
these waters based on then-available scientific data (65 FR 34590, May 
31, 2000; MMPA Sec. 216.15(g); 76 FR 62919, Oct. 22, 2008). There are 
few beluga sightings in the Gulf of Alaska outside Cook Inlet. In the 
1970s and 1980s, beluga sightings occurred across much of the northern 
and central parts of Cook Inlet, but in the 1990s the summer 
distribution narrowed to primarily the northernmost portions of Cook 
Inlet. More of the Inlet was used by beluga whales during the spring, 
summer, and fall during the 1970s and 1980s than is presently used. 
However, because sightings continue to occur over the described range, 
we consider the present range of this DPS to be occupied habitat. The 
present range of the listed Cook Inlet beluga is limited to Cook Inlet 
waters north of a line from Cape Douglas to Cape Elizabeth.

Critical Habitat Boundaries

    NMFS' ESA regulations relevant to describing a geographical area 
and ``specific areas'' state that ``each critical habitat will be 
defined by specific limits using reference points and lines as found on 
standard topographic maps of the area'' (50 CFR 424.12). These 
regulations require that we also identify the state(s), county(ies), or 
other local governmental units within which all or part of the critical 
habitat is located. However, the regulations note that such political 
units typically would not constitute the boundaries of critical 
habitat. In addition, the regulations state that ephemeral reference 
points (e.g., trees, sand bars) shall not be used in defining critical 
habitat.
    We seek the best scientific information available to make the 
designations as precise as practicable. During the information-
gathering phase, we are seeking information that will allow us to map 
specific areas, using reference points and lines as found on standard 
nautical charts and topographic maps, that (1) are currently occupied 
by the species and (2) contain essential physical and biological 
features.
    We have limited information on the distribution and occurrence of 
Cook Inlet beluga whales within tributary waters of Cook Inlet. 
Traditional Knowledge of Alaska Native hunters tells us these whales 
have occurred several miles up the Susitna and Beluga Rivers in past 
years, and whales have been observed above tidewater in the Knik River 
at Turnagain Arm. We seek more information on habitat in estuaries and 
freshwater as well as marine areas.

Physical and Biological Features Essential for Conservation

    As described in ESA section 3(5)(A)(i), we will assemble the best 
available information to identify those ``specific areas within the 
geographical area occupied by the species at the time it is listed . . 
. on which are found those physical or biological features . . (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection.'' Joint NMFS/FWS 
regulations for listing endangered and threatened species and 
designating critical habitat at section 50 CFR 424.12(b) state that the 
agency ``shall consider those physical and biological features that are 
essential to the conservation of a given species and that may require 
special management considerations or protection'' (also referred to as 
``Essential Features'' or ``Primary Constituent Elements''). Pursuant 
to the regulations, such requirements include, but are not limited to 
the following: (1) Space for individual and population growth, and for 
normal behavior; (2) food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) cover or shelter; (4) 
sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and generally (5) habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species. These regulations go on to 
emphasize that the agency shall focus on essential features within the 
specific areas considered for designation. These features ``may 
include, but are not limited to, the following: roost sites, nesting 
grounds, spawning sites, feeding sites, seasonal wetland or dryland, 
water quality or quantity, geological formation, vegetation type, tide, 
and specific soil types.''
    We seek information on the identification of these essential 
features for purposes of identifying critical habitat.

Special Management Considerations or Protection

    Coupled with the identification of essential features, during the 
information-gathering phase we seek input on whether the above 
essential features may require special

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management considerations or protection. For example, unrestricted 
passage and access between habitats within upper Cook Inlet may require 
management of this waterway for projects that have the potential to 
disrupt passage, such as dams or causeways. Similarly, essential prey 
species such as king salmon may require special management to ensure 
long-term viability and to prevent overharvest. We will document the 
special management considerations and protection associated with the 
essential features and relate these to the factors affecting the 
species and/or critical habitat during formal rulemaking (see 
``Schedule and Contents of Rulemaking'').

Areas Outside the Geographical Area Occupied by the Species

    Section 3(5)(A)(ii) of the ESA defines critical habitat to include 
specific areas outside the geographical area occupied by the species 
only if the Secretary determines them to be essential for the 
conservation of the species. Section 3(3) of the ESA defines 
conservation as ``the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary.'' NMFS' ESA regulations at 424.12(e) state that the agency 
``shall designate as critical habitat areas outside the geographical 
area presently occupied by a species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.'' We would thus include areas outside the occupied 
geographical area only if areas within the occupied geographical area 
were not adequate to support conservation. We seek information on the 
adequacy of the currently occupied habitat to support conservation of 
the Cook Inlet beluga DPS, and whether areas that are unoccupied might 
be ``essential for conservation.<gr-thn-eq>

Determining Economic and Other Relevant Impacts

    Section 4(b)(2) of the ESA requires that the Secretary, in deciding 
to designate critical habitat, consider economic impacts, impacts to 
national security, and any other relevant impacts of such designation. 
We seek information relating to any of these impacts.
    The ESA gives the Secretary discretion to exclude any area from 
critical habitat if the benefits of such exclusion outweigh the 
benefits of specifying the area as part of the critical habitat. During 
the information-gathering phase, we seek information regarding the 
benefits of excluding particular areas from the critical habitat 
designation and the benefits of including each such area as part of the 
critical habitat designation. We seek information that would allow us 
to monetize these effects to the extent practicable, as well as 
information on qualitative impacts to these effects. We also seek input 
on what approaches would allow us to determine if excluding a 
particular area from designation will result in the extinction of the 
species.

Determining Conservation Value

    We seek information on the conservation value of potential critical 
habitat, based on the quality and quantity of the essential feature(s). 
We also seek input on the best methods for evaluating the conservation 
value of potential critical habitat areas. We are interested in 
information relevant to monetizing the conservation value of an area, 
to the extent useful measurement can be made, and/or to ranking the 
conservation benefits in an ordinal manner, if full monetization is not 
practicable.

The Appropriate Geographic Scale for Weighing the Benefits of Exclusion 
and Benefits of Inclusion

    Cook Inlet is a vast region occupying a variety of habitat types 
and human presence. Much of it is undeveloped, while portions of the 
Inlet are adjacent to the most populated areas of the State. 
Consideration of areas for exclusion presents a problem of scale, 
wherein we wish to maintain the ecological perspective of important 
habitat for Cook Inlet beluga whales while allowing meaningful 
distinction between areas to be evaluated under section 4(b)(2).
    In some cases, it may be useful to consider habitat units at a 
finer scale, for example, along the Municipality of Anchorage's 
waterfront on lower Knik Arm. We seek input on the scale to be used in 
this analysis for the balancing test.

Information Solicited

    Past critical habitat designations have generated considerable 
public interest. Therefore, we believe it is important to engage the 
public early and often in the rulemaking process. This ANPR is a key 
first step, and we encourage all interested parties to submit comments 
regarding the issues raised in this notice.
    In accordance with agency regulations at 50 CFR 424.13, we will 
consult as appropriate with affected states, interested persons and 
organizations, other affected Federal agencies, and, in cooperation 
with the Secretary of State, with the country or countries in which the 
species concerned are normally found or whose citizens harvest such 
species from the high seas. Data reviewed may include, but are not 
limited to, scientific or commercial publications, administrative 
reports, maps or other graphic materials, information received from 
experts, and comments from interested parties. Specific data needs 
include:
    (1) Information on the past and current numbers and distribution of 
Cook Inlet beluga whales;
    (2) Information describing the habitat type and quality of marine, 
estuarine, and freshwater habitats for all Cook Inlet beluga whales;
    (3) Within areas occupied by Cook Inlet beluga whales, information 
regarding the physical and biological features that are essential to 
the conservation of this DPS;
    (4) Any special management considerations or protection currently 
associated with essential physical and biological features within areas 
occupied by Cook Inlet beluga whales, such as any land use management 
plan, a state statute, a municipal ordinance, or other binding local 
enactment;
    (5) Any specific areas within the range of Cook Inlet beluga whales 
that may not qualify for critical habitat designation because they lack 
essential physical or biological features or may not require special 
management consideration or protections;
    (6) Any specific areas outside the area occupied by Cook Inlet 
beluga whales that are essential for their conservation;
    (7) Any specific areas that should be excluded from critical 
habitat designation because the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat;
    (8) Any current or planned activities in the range of Cook Inlet 
beluga whales and their possible impacts on areas that may qualify as 
critical habitat;
    (9) Any economic or other relevant impacts that may result from 
designating critical habitat, regardless of whether those impacts are 
attributable co-extensively to other causes, in particular those 
impacts affecting small entities;
    (10) Other benefits of excluding or designating a specific area as 
critical habitat; and
    (11) Potential peer reviewers for proposed critical habitat 
designations, including persons with biological and economic expertise 
relevant to the designations.
    As described in a joint NMFS/FWS policy on ESA information 
standards

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published on July 1, 1994 (59 FR 34271), we will rely on the best and 
most comprehensive technical information available; gather and 
impartially evaluate information that disputes official positions; 
document evaluation of information; use, retain, and reference primary 
and original sources of information; and conduct management-level 
review of documents to verify and assure the quality of the science 
used to make the critical habitat designations. We will review all 
comments and information resulting from this ANPR prior to making any 
proposed designations and will include such documents in our public 
record. The public may review information submitted by contacting NMFS 
(see ADDRESSES and FOR FURTHER INFORMATION CONTACT) or via the internet 
at http://www.fakr.noaa.gov/.

    Dated: April 7, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-8519 Filed 4-13-09; 8:45 am]
BILLING CODE 3510-22-S