[Federal Register Volume 86, Number 145 (Monday, August 2, 2021)]
[Rules and Regulations]
[Pages 41668-41698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16094]



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Vol. 86

Monday,

No. 145

August 2, 2021

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 226





Endangered and Threatened Wildlife and Plants; Revision of Critical 
Habitat for the Southern Resident Killer Whale Distinct Population 
Segment; Final Rule

Federal Register / Vol. 86 , No. 145 / Monday, August 2, 2021 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 210719-0149]
RIN 0648-BH95


Endangered and Threatened Wildlife and Plants; Revision of 
Critical Habitat for the Southern Resident Killer Whale Distinct 
Population Segment

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final rule to revise the critical habitat 
designation for the Southern Resident killer whale (Orcinus orca) 
distinct population segment (DPS) under the Endangered Species Act 
(ESA) by designating six additional coastal critical habitat areas 
along the U.S. West Coast. Specific newly designated areas along the 
U.S. West Coast include 15,910 square miles (mi\2\) (41,207 square 
kilometers (km\2\)) of marine waters between the 20-feet (ft) (6.1-
meter (m)) depth contour and the 656.2-ft (200-m) depth contour from 
the U.S. international border with Canada south to Point Sur, 
California. We have excluded one area, the Quinault Range Site 
(including a 10-km buffer around a portion of the site), comprising 
1,400.4 mi\2\ (3627 km\2\), from the critical habitat designation 
because we have determined that the benefits of exclusion outweigh the 
benefits of inclusion, and exclusion will not result in extinction of 
the species.

DATES: This rule is effective September 1, 2021.

ADDRESSES: The final rule, maps, and other supporting documents 
(Economic Report, ESA Section 4(b)(2) Report, and Biological Report) 
can be found on the NMFS website at https://www.fisheries.noaa.gov/action/critical-habitat-southern-resident-killer-whale.

FOR FURTHER INFORMATION CONTACT: Lynne Barre, NMFS West Coast Region, 
206-526-4745; or Lisa Manning, NMFS, Office of Protected Resources, 
301-427-8466.

SUPPLEMENTARY INFORMATION:

Background

    NMFS listed the Southern Resident killer whale DPS as endangered 
under the ESA in 2005 (70 FR 69903; November 18, 2005). In 2006, NMFS 
designated critical habitat for the Southern Resident killer whale DPS 
in inland waters of Washington State (71 FR 69054; November 29, 2006). 
The designated critical habitat consists of three areas: (1) The Summer 
Core Area in Haro Strait and waters around the San Juan Islands, (2) 
Puget Sound Area, and (3) the Strait of Juan de Fuca Area. Together, 
these areas comprise approximately 2,560 mi\2\ (6,630 km\2\) of marine 
habitat.
    The 2006 final rule designating critical habitat identified three 
habitat features essential to the conservation of the DPS: (1) Water 
quality to support growth and development; (2) prey species of 
sufficient quantity, quality, and availability to support individual 
growth, reproduction, and development, as well as overall population 
growth; and (3) passage conditions to allow for migration, resting, and 
foraging.
    On January 21, 2014, we received a petition from the Center for 
Biological Diversity (CBD) requesting revisions to the critical habitat 
designation for the Southern Resident killer whale DPS. CBD requested 
we revise critical habitat to include ``inhabited marine waters along 
the West Coast of the United States that constitute essential foraging 
and wintering areas,'' specifically the region between Cape Flattery, 
Washington, and Point Reyes, California, extending from the coast to a 
distance of 47.2 mi (76 km) offshore.
    On April 25, 2014, we announced in our 90-day finding that the 
petition presented substantial scientific information indicating that a 
revision to the current critical habitat designation may be warranted 
and requested public comments (79 FR 22933). Due to new information 
available regarding habitat use by Southern Resident killer whales, we 
decided a revision to critical habitat was warranted, and we announced 
our intention to proceed toward a proposed rule in the 12-month finding 
(80 FR 9682; February 24, 2015).
    CBD filed a complaint in August 2018 with the U. S. District Court 
for the Western District of Washington at Seattle seeking an order from 
the Court establishing deadlines for NMFS to revise the Southern 
Resident killer whale critical habitat designation. A court-approved 
settlement agreement was filed on April 17, 2019 (Center for Biological 
Diversity v. National Marine Fisheries Service, 2:18-cv-01201-RSM (W.D. 
Wash.)). The settlement agreement stipulated that NMFS must submit a 
proposed rule revising critical habitat to the Office of the Federal 
Register by September 6, 2019.
    Based on the recommendations provided in the Draft Biological 
Report, the Initial Regulatory Flexibility Analysis (IRFA) and ESA 
section 4(b)(2) analysis (which considers exclusions to critical 
habitat based on economic, national security and other relevant 
impacts), we published a proposed rule on September 19, 2019 (84 FR 
49214), to designate marine waters between the 20-ft (6.1-m) depth 
contour and the 656.2-ft (200-m) depth contour from the U.S. 
international border with Canada south to Point Sur, California, as 
Southern Resident killer whale critical habitat. In accordance with the 
definition of critical habitat under the ESA, this area contained 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protections. The proposed rule included background information on 
Southern Resident killer whale biology and habitat use. That background 
information is not included here but can be accessed by referring to 
the proposed rule (84 FR 49214; September 19, 2019) and supporting 
documents (at https://www.fisheries.noaa.gov/west-coast/endangered-species-conservation/critical-habitat-southern-resident-killer-whales).
    In the proposed rule, we described the physical or biological 
features essential to the conservation of Southern Resident killer 
whales as (1) water quality to support growth and development; (2) prey 
species of sufficient quantity, quality, and availability to support 
individual growth, reproduction, and development, as well as overall 
population growth; and (3) passage conditions to allow for migration, 
resting, and foraging. We requested public comments through December 
18, 2019, and held three public hearings. For a complete description of 
our proposed action, we refer the reader to the proposed rule (84 FR 
49214; September 19, 2019). The proposed rule and supporting documents 
included information on the natural history of Southern Resident killer 
whales, which has been updated in the Final Biological Report (NMFS 
2021a).

Statutory and Regulatory Background for Critical Habitat Designations

    The ESA defines critical habitat under section 3(5)(A) as the (1) 
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 essential to the conservation of the species and which may 
require special management considerations or protection; and (2) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the

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Secretary of Commerce (Secretary) that such areas are essential for the 
conservation of the species (16 U.S.C. 1532(5)(A)). Conservation is 
defined in section 3(3) of the ESA as to use, and the use of, all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary (16 U.S.C. 
1532(3)). Section 3(5)(C) of the ESA provides that, except in those 
circumstances determined by the Secretary, critical habitat shall not 
include the entire geographical area which can be occupied by the 
threatened or endangered species. Our regulations provide that critical 
habitat shall not be designated within foreign countries or in other 
areas outside U.S. jurisdiction (50 CFR 424.12(g)).
    Section 4(a)(3)(B) prohibits designating as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DOD) or designated for its use, that are subject to an 
Integrated Natural Resources Management Plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is designated.
    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. 
Pursuant to this section, the Secretary may exclude any area from 
critical habitat upon determining that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat. However, the Secretary may not exclude areas if this will 
result in the extinction of the species.
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that actions they fund, authorize, 
or carry out are not likely to destroy or adversely modify that habitat 
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section 
7(a)(2) requirement that Federal agencies ensure their actions are not 
likely to jeopardize the continued existence of ESA-listed species. 
Specifying the geographic location of critical habitat also facilitates 
implementation of section 7(a)(1) of the ESA by identifying areas where 
Federal agencies can focus their conservation programs and use their 
authorities to further the purposes of the ESA. Critical habitat 
requirements do not apply to citizens engaged in actions on private 
land that do not involve a Federal agency. However, designating 
critical habitat can help focus the efforts of other conservation 
partners (e.g., state and local governments, individuals, and non-
governmental organizations).

Summary of Changes From the Proposed Rule

    We evaluated the comments and information received from the public 
during the public comment period and at public hearings. Based on our 
consideration of these comments and information and our reconsideration 
of issues discussed in the proposed rule, the final rule and supporting 
documents include one substantive change to the exclusions for national 
security impacts, as well as inclusion of clarifications and new 
information and references in response to public comments. Below we 
briefly summarize these changes and clarifications, which are discussed 
in further detail in the relevant responses to comments and other 
sections of this final rule.
    After considering public comments received and the best scientific 
information available, the final rule reduces the extent of the 
excluded 10-km buffer around the Quinault Range Site (QRS) where the 
QRS overlaps with the Olympic Coast National Marine Sanctuary (OCNMS).
    In accordance with section 4(b)(2) of the ESA, our proposed rule 
excluded the QRS based on national security impacts. It also excluded a 
10-km buffer around the site, calculated by the Navy based on the full 
extent to which noise-related impacts on fish species are estimated to 
occur from the use of the largest explosives the Navy foresees testing 
within the QRS. We received numerous public comments opposing the 
exclusion and one comment pointing out that part of the QRS overlaps 
with the OCNMS.
    After considering these comments and requesting additional 
information from the Navy regarding planned activities in the OCNMS, we 
have reduced the extent of the 10-km buffer being excluded, where the 
QRS overlaps with the OCNMS. As detailed in the Section 4(b)(2) Report 
(NMFS 2021b), we found the benefits of designating critical habitat for 
Southern Resident killer whales within this portion of the buffer are 
not outweighed by national security impacts of including that portion. 
This change represents a reduction in the size of the area being 
excluded from critical habitat compared to the proposed rule. The 
proposed exclusion area encompassed approximately 1,687.9 mi\2\ 
(4,371.5 km\2\) of potential critical habitat, and the final exclusion 
area encompasses 1,400.4 mi\2\ (3627 km\2\) of potential critical 
habitat.
    In addition to the one substantive change in the final rule, we 
also updated our supporting documents with additional information and 
clarifications based on the public comments, including updates related 
to sound, inclusion of newly available references, and clarifications 
related to our economic analysis. A number of comments requested that 
we include sound as a fourth essential feature or more explicitly 
describe how communication space is encompassed within the prey and 
passage essential features. After carefully considering the studies 
cited by commenters seeking to include sound as a fourth essential 
feature, we are still not able to identify specific in-water sound 
levels or thresholds for communication, behavioral or displacement 
impacts on Southern Resident killer whales (as requested by CBD) so we 
consider effects of sound qualitatively (see further explanation in 
section `Physical and Biological Features Essential to Conservation' 
and in the Biological Report, NMFS 2021a, section V.B.4). Because 
potential impacts of sound are already addressed through qualitative 
section 7 analyses of the prey and passage features, as well as 
analyses of effects of sound on individual whales themselves, we have 
not included sound as a separate feature. However, in response to the 
concerns expressed in the comments, we have added more detail to the 
Final Biological Report (NMFS 2021a, sections V.B.2, V.B.3, and V.B.4) 
to clarify that the effects of anthropogenic noise on communication and 
social behavior are and will continue to be evaluated through the prey 
and passage essential features, as well as analyses of effects to 
individual whales. Activities producing sound that impact Southern 
Resident prey availability (including access to prey and impacts to 
communication for prey sharing) or safe and unrestricted passage 
(including passage necessary for social behavior) are considered 
activities that may require special management considerations under 
section 7 of the ESA. Finally, we also updated the Final Biological 
Report to include information on how this approach is compatible with 
the approaches used to address sound for other listed species: Cook 
Inlet beluga whale DPS, the Main Hawaiian Islands insular false killer 
whale DPS, and listed humpback whale

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DPSs. Also, see the response to comment 8 regarding sound.
    Multiple commenters provided information and citations for recent 
scientific studies not included in the proposed rule. In response, we 
have added to the Final Biological Report (NMFS 2021a) descriptions of 
and reference to multiple new studies that were published since the 
publication of the proposed critical habitat rule.
    The Final Economic Analysis (FEA) in the Final Economic Report (IEc 
2021) includes updates and clarifications from the draft version in 
response to public comments. Specifically, the analysis incorporates 
new information made available after development of the Draft Economic 
Analysis (DEA) on the Pacific Fishery Management Council (PFMC)'s ad-
hoc Southern Resident Killer Whale Working Group, and publication of 
its Final Draft Risk Assessment for Salmon Fishery Management Plan 
(FMP) Impacts to Southern Resident Killer Whales (PFMC 2020). In 
response to public comment, the Sacramento District has been added to 
the list of United States Army Corps of Engineers (USACE) districts 
that manage activities that may be affected by the expansion (section 
2.10, IEc 2021). The FEA (IEc 2021) also incorporates a Final 
Regulatory Flexibility Analysis (FRFA) and updates the timeframe and 
dollar year of the analysis to reflect the present schedule of the 
final rule. Therefore, differences in anticipated costs between the DEA 
and the FEA reflect an update to the timeframe of the analysis and the 
dollar year, as opposed to changes in the costs of consultation. No 
substantive changes were made between the IRFA and the Final Regulatory 
Flexibility Analysis (FRFA) as changes incorporated in the final rule 
do not affect the economic analysis and conclusions.

Summary of Comments and Responses

    We solicited comments on the proposed designations and exclusions 
as well as the documents supporting the proposed rulemaking. To 
facilitate public participation, the proposed rule was made available 
on our website and comments were accepted via standard mail and through 
the Federal eRulemaking portal. We also solicited public comments at 
three public hearings, which were held on November 4, 2019, in Santa 
Cruz, CA; November 5, 2019, in Newport, OR; and November 6, 2019, in 
Seattle, WA. The public comment period closed on December 18, 2019.
    We received 218 unique comments, including 180 in support, 22 
opposed, and 16 that provided information and/or requested changes to 
the rule without stating support or opposition. We have considered all 
public comments, and provide responses to all substantive issues raised 
by commenters that are relevant to the proposed revision of Southern 
Resident killer whale critical habitat. We have not responded to 
comments or concerns outside the scope of this rulemaking. Comments 
were received from a range of sources including: Global and local 
environmental non-profit groups, fishing industry associations, local 
and state government, state agencies, other Federal agencies (e.g., the 
Marine Mammal Commission, NOAA's National Ocean Service National Marine 
Sanctuaries Program, USACE), merchant shipping associations, trade 
associations, scientists and scientific groups, university students, 
elementary school students, educational groups, aquariums, legal 
groups, and individual citizens. The majority of individual concerned 
citizens were in support of the expanded critical habitat designation. 
The Marine Mammal Commission generally agreed with NMFS's 
determinations and supports the geographic boundaries we proposed.

Criteria for Designating Critical Habitat

    Comment 1: One commenter felt that the revised critical habitat was 
not prudent, stating that it would not result in any new conservation 
measures or protections and, therefore, would not provide benefits to 
the species. The commenter referred to 16 U.S.C. 1533(a)(3) to argue 
that NMFS must demonstrate that designation of critical habitat 
designation is prudent, and cited 50 CFR 424.12(a)(1)(ii) (subsequently 
revised in 2019) to argue that designation is not prudent when it 
``would not be beneficial to the species.''
    Response: The ESA requires that NMFS designate critical habitat to 
the maximum extent prudent and determinable (16 U.S.C. 1533(a)(3)). 
Contrary to the interpretation of the commenter, it does not require 
that NMFS demonstrate prudence as a condition for designating critical 
habitat.
    The proposed and final rules to revise critical habitat for 
Southern Resident killer whales follow previous ESA implementing 
regulations, as the most recent revisions to the implementing 
regulations, which became effective on September 26, 2019, only apply 
to classification and critical habitat rules for which a proposed rule 
was published after September 26, 2019 (see 84 FR 45020; August 27, 
2019). The proposed rule for the revision to Southern Resident killer 
whale critical habitat (84 FR 49214) was published on September 19, 
2019. With respect to critical habitat designations, the previous ESA 
implementing regulations at 50 CFR 424.12(a)(1)(ii) stated that a 
designation of critical habitat is not prudent when such a designation 
is not beneficial to the species. In determining if designation would 
not be beneficial, NMFS may consider, among other factors, whether the 
present or threatened destruction, modification, or curtailment of the 
habitat or range of a species is not a threat to the species, or if any 
areas meet the definition of critical habitat.
    In general, ``not prudent'' determinations are uncommon, because 
most species are listed under ESA, at least in part, due to impacts to 
their habitat or curtailment of their range (see 81 FR 7413; February 
11, 2016 response to Comment 61), and because there is an inherent 
benefit of critical habitat designation. Most ``not prudent'' findings 
are a result of a determination that designating habitat would increase 
harm or threats to the species, such as species highly prized for 
collection where identifying locations would render the species 
vulnerable to collection. Southern Residents killer whales were listed 
as endangered, in part, due to modification to their habitat from 
vessel traffic, contaminants, and changes to prey availability (see 70 
FR 69903; November 18, 2005). If areas do not meet the definition of 
critical habitat, it is also permissible to not designate critical 
habitat; however, specific areas within the geographical area occupied 
by Southern Resident killer whales that we are designating, do meet the 
definition of critical habitat (i.e., they contain the essential 
features and may require special management considerations or 
protection).
    The commenter's statement that the proposed critical habitat would 
not result in any new conservation measures or protections refers to 
our findings in the DEA (IEc 2019) that there are no particular 
projects or activities for which NMFS considers it likely that section 
7 consultation on coastal critical habitat for the killer whales would 
result in different conservation efforts than section 7 consultation 
without the revised critical habitat. However, this finding does not 
mean the critical habitat designation provides no benefits to the 
species. We find there are benefits and disagree with the commenter. 
First, although we do not consider additional conservation efforts from 
section 7 consultations to be likely, we cannot rule out that some 
modifications may result from section 7 consultations, and

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such potential modifications would provide conservation value to the 
species. Secondly, although the direct benefit that the statute 
provides is through section 7 consultation, designating critical 
habitat may carry additional benefits to the species beyond the 
protections from section 7(a)(2) consultation. Specifically, these 
additional benefits, outlined in the Final ESA Section 4(b)(2) Report 
(NMFS 2021b), include facilitating implementation of section 7(a)(1) of 
the ESA by identifying areas where Federal agencies can focus their 
conservation programs and use their authorities to further the purposes 
of the ESA. Furthermore, other additional benefits include the 
generation of more detailed information about the status of Southern 
Resident killer whales, increasing education and awareness of parties 
involved in section 7 consultations and the public, which can lead to 
activities that benefit the killer whales or their habitat.
    We continue to find that the expanded critical habitat is prudent.

Geographical Areas Occupied by the Species

    Comment 2: We received several comments regarding the proposal to 
designate critical habitat in waters deeper than 20 ft (6.1 m) based on 
extreme high water. Some commenters felt that we should include waters 
shallower than 20 ft (6.1 m) because nearshore areas support killer 
whale prey, making them essential to the conservation of Southern 
Resident killer whales. The importance of these habitats for salmon and 
forage fish was the predominant argument by commenters for including 
shallow waters as critical habitat for Southern Resident killer whales.
    Commenters generally acknowledged that many nearshore areas are 
outside the geographical area occupied by the species, but viewed them 
as essential for the conservation of the species because they provide 
critical habitat to the Southern Resident food chain, including 
juvenile salmon and their forage fish prey. Two commenters argued the 
unoccupied nearshore areas should be designated as critical habitat 
because they contain the essential feature of prey species (of 
sufficient quantity, quality and availability to support individual 
growth, reproduction and development, as well as overall population 
growth). One believed that limiting critical habitat to occupied areas 
is not adequate to ensure the conservation of the species, while 
another felt that designating these areas as critical habitat would 
help support salmon and killer whale resilience to climate change 
impacts. While most comments on this topic requested the inclusion of 
all nearshore areas in the critical habitat designation, a few 
requested the inclusion of just those nearshore, as well as estuarine, 
and freshwater areas associated with Chinook salmon rivers for stocks 
identified by NMFS and the Washington Department of Fish and Wildlife 
(WDFW) as priority stocks for Southern Resident killer whales.
    One commenter argued that killer whales do occupy the waters 
shallower than 20 ft in depth, citing observational data from shore-
based sightings of Southern Resident killer whales in the San Juan 
Islands foraging and socializing in shallow waters when transiting the 
area. The commenter argued that these waters are accessible to the 
killer whales at high tide, and that the shallow waters may constitute 
``active space'' around individual whales in which they can interact 
with each other and their prey. They argued that nearshore waters 
should be designated as critical habitat because activities taking 
place in nearshore waters could adversely modify adjacent deeper waters 
within the proposed critical habitat. Lastly, for the purposes of 
regulatory simplicity, one commenter sought to align the critical 
habitat boundary with the high water line regulatory boundary used by 
the USACE.
    Response: The final critical habitat designation is consistent with 
the proposed rule and does not include waters shallower than 20 ft (6.1 
m) based on mean high water. Similar to the critical habitat for inland 
waters, there are little to no data to support that the whales use the 
shallow areas regularly, or could physically access some areas, even 
during high tide conditions.
    The limited information providing new observations of Southern 
Resident killer whale use of shallow waters in the San Juan Islands we 
received is not sufficient to consider all shallow areas as occupied or 
essential to the conservation of Southern Resident killer whales. The 
observations provided represent rare occurrences and were located in 
inland waters rather than outer coastal waters. Also, based on data 
from four satellite-tagged Southern Resident killer whales, only less 
than 1 percent of the whales' outer coastal locations were in depths 
less than 6 m (Northwest Fisheries Science Center (NWFSC) unpubl. data, 
see the Biological Report, NMFS 2021a). Satellite-based locations are 
not exact, and we don't know the tidal conditions for these 
observations. We are not revising the inland waters critical habitat 
designation at this time, and neither the bathymetry of the San Juan 
Islands nearshore areas nor the unique observations of Southern 
Resident killer whales in these areas would be representative of outer 
coastal areas.
    Regulatory alignment with USACE or other management boundaries is 
not a basis for designating critical habitat in unoccupied areas. 
Additionally, extreme high water data for delineating boundaries within 
geographic information system (GIS) software along the coast was not 
readily available for many locations. Therefore, similar to the 
proposed rule, we continue to use the 20-ft (6.1-m) depth relative to 
mean high water as the eastern boundary of coastal critical habitat.
    Not designating waters shallower than 20 ft (6.1 m) (based on mean 
high water) as critical habitat does not preclude consultation on 
activities that occur in these shallow nearshore or inland freshwater 
areas. ESA section 7 requirements that Federal agencies ensure their 
actions are not likely to destroy or adversely modify critical habitat 
applies equally to actions occurring outside of designated critical 
habitat as to actions occurring within designated critical habitat. 
Furthermore, specific inland freshwater areas are designated as 
critical habitat for ESA-listed salmon runs (70 FR 52487; September 2, 
2005 and 70 FR 52629; September 2, 2005), including certain priority 
Chinook runs (NMFS and WDFW 2018), and are, therefore, subject to 
section 7 consultations.

Specific Areas

    Comment 3: Many commenters expressed support for the proposed 
geographic extent of the revised critical habitat in U.S. ocean waters 
from Cape Flattery, Washington, south to Point Sur, California. Two 
commenters felt that the coastwide designation of critical habitat was 
too broad, and sought to limit the spatial extent of the designation to 
areas of regular or consistent use. They disputed the southern and 
western boundaries and proposed alternative limitations to the 
boundaries of the specific areas, including by time and by the 
locations of primary essential features. Other commenters requested 
inclusion of additional areas because they felt the current proposed 
areas were not sufficient to conserve the whales.
    One commenter referred to 16 U.S.C. 1532(5)(C), noting ESA 
directives that critical habitat not include the entire geographical 
area which can be occupied by the listed species, except in special 
circumstances. They referred to

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the 1978 amendments to the ESA, stating that congressional intent was 
to curtail the practice of designating critical habitat throughout the 
entire range of a species. They contended that the proposed critical 
habitat revision for Southern Resident killer whales is overly 
expansive because it includes most of the geographic area occupied by 
the species.
    Two commenters felt that critical habitat for Southern Resident 
killer whales should only include those areas within the species' range 
that are occupied on a regularly occurring or consistent basis. They 
contested the western and southern boundaries on the basis that areas 
more than 150 m deep and south of Cape Falcon are not used frequently 
enough by the Southern Resident killer whales to justify the 
designation.
    Commenters expressed concerns that critical habitat designation 
would result in fisheries closures year-round to protect areas occupied 
by the Southern Resident killer whales only at certain times. They 
requested that the designation be temporally limited to specific 
periods when Southern Resident killer whales are present in the area, 
and that adverse modification only be considered for activities that 
affect the whales during the time that they occupy the areas.
    One commenter sought to limit the boundaries of the specific areas 
based on the spatial extent of each area's primary essential feature. 
The commenter maintained that because we identified a primary essential 
feature in each specific area, the designation of critical habitat 
should be limited to only those spaces within each specific area where 
the primary essential feature is found.
    Response: This critical habitat designation is consistent with our 
obligations under the ESA. We are not designating the entire 
geographical area that can be occupied by this species, nor are we 
designating all areas in which Southern Resident killer whales occur. 
In regards to designation of unoccupied habitat areas, we considered 
the best available information, and we are not aware of any unoccupied 
areas that meet conservation needs of Southern Residents or are 
essential for conservation (see also response to Comment 2 regarding 
depth and response to Comment 5 regarding Hood Canal for additional 
information on areas that commenters requested including). Therefore, 
we have not included any unoccupied areas in the critical habitat 
designation. Some Alaskan waters are considered to be within the 
geographic area occupied by Southern Resident killer whales (see 
``Distribution'' section in the Final Biological Report, NMFS 2021a), 
but we are not designating any areas in Alaska because there is only 
one sighting in this region and there is insufficient information about 
the whales' distribution, behavior, and habitat use in these areas. 
Also, there are limited sightings of Southern Resident killer whales at 
shallow depths, outside of the eastern, nearshore critical habitat 
boundaries or beyond the 200-m shelf isobath, outside of the western, 
offshore critical habitat boundaries (see Specific Areas within the 
Geographical Area Occupied by the Species and in NMFS 2021a), so the 
species is able to occupy some areas closer to or farther from shore 
than we are designating. Finally, Southern Resident killer whales can 
and do occupy Canadian waters. However, those areas are not included in 
the designation because they are outside of U.S. jurisdiction. 
Therefore, this revised critical habitat does not include all areas 
that can be occupied by Southern Resident killer whales.
    Joint NMFS-U.S. Fish and Wildlife Service (USFWS) implementing 
regulations clarify that the geographical area occupied by the species 
may include those areas used throughout all or part of the species' 
life cycle, even if not used on a regular basis (e.g. migratory 
corridors, seasonal habitats, and habitats used periodically, but not 
solely by vagrant individuals; 50 CFR 424.02). They also provide that 
we determine specific areas that contain the physical or biological 
features essential to the conservation of the species within the 
geographical area occupied by the species (50 CFR 424.12(b)(1)(iii)). 
In accordance with these regulations, the areas we are designating as 
critical habitat, including the waters beyond 150 m in depth and at the 
southern end of the range in California, are both occupied and contain 
physical or biological features that are essential to the conservation 
of the species.
    In our satellite tracking data, 7 percent of occurrences were 
beyond 150 m in depth (NMFS unpublished data, see the Biological 
Report, NMFS 2021a). These data indicate short duration but regular use 
of the area by the whales. We acknowledge that satellite-tagged whales 
swam within a narrower north-south corridor off the coast of California 
compared to the broader corridor when they were off the coasts of 
Washington or Oregon (Final Biological Report, NMFS 2021a, section 
VI.E.). However, using the 200 m depth contour consistently along the 
West Coast reflects the majority of the whale habitat use data and 
likely reflects the bathymetric conditions important to conservation 
including supporting life functions, such as foraging. In addition, 
establishing different contour lines as boundaries for different 
specific areas would make implementation unnecessarily complex. As in 
the proposed rule, we delineate the western boundary of critical 
habitat in coastal waters at the 200 m depth contour.
    With regards to the southern extent of critical habitat in 
California, we provided scientific data on Southern Resident sightings 
in this region in the Draft Biological Report (NMFS 2019a, section 
IV.A.). The sightings in Area 6 (southernmost coastal critical habitat 
area) around Monterey Bay have been periodic across multiple years 
(nearly annual from 2007-2011), indicating consistent use of the area 
from year to year (Hanson et al. 2017, Draft and Final Biological 
Reports, section VI.F.). Furthermore, given the effort it takes for the 
Southern Resident killer whales to get to this extreme end of their 
range, recurring use of the area suggests it has special value to the 
whales and that accessing the area is important to meet their needs. 
Therefore, the final rule is consistent with the proposed rule and 
delineates the southern boundary of critical habitat in coastal waters 
at Point Sur (36[deg]18'00'' N).
    Designation of critical habitat does not establish a refuge or 
sanctuary for the species or automatically close areas to specific 
activities, but rather it guides Federal agencies to consult with NMFS 
if their actions may affect critical habitat. In the case of commercial 
fisheries, as we explain in our responses to Comments 15-17 regarding 
Economic Impacts and in the FEA (IEc 2021), we consider it unlikely 
that the designation of critical habitat would result in different 
fishery management measures than would already be implemented for the 
protection of Southern Resident killer whales, endangered salmon, and 
other listed species.
    Critical habitat is designated by area, based on where features are 
present in occupied areas (50 CFR 424.12(b)), rather than time, so we 
cannot assign a season or other temporal boundary to the designation. 
However, we can consider the timing of the whales presence in an action 
area in our section 7 consultations. In these consultations, our 
analysis of a Federal action's effects on critical habitat will 
consider the timing of a Federal action and its overlap with time 
periods in which Southern Resident killer whales are likely to be in 
the area in order to determine how conservation value of the habitat 
would be impacted by the Federal action.

[[Page 41673]]

    In accordance with ESA section 3(5)(A), we delineated specific 
areas within the geographical area occupied by the species where the 
essential physical or biological features (PBFs) are found. Although we 
identify a primary essential feature in each specific area, all three 
PBFs are essential and present in all specific areas. Potential effects 
to all three habitat features are subject to evaluation through section 
7 consultations. As such, we are not reconsidering the boundaries of 
specific areas based only on the primary PBFs.
    Comment 4: One commenter noted that the proposed critical habitat 
includes areas of Juan de Fuca Canyon that are deeper than the 200 m 
depth contour, and felt that these areas should be excluded from the 
designation because they are outside of the depth band used to define 
critical habitat.
    Response: As detailed in the Draft and Final Biological Reports 
(NMFS 2019a, 2021a), the 656.2-ft (200-m) isobath was chosen as the 
western (offshore) boundary of the proposed critical habitat. The 
narrow Juan de Fuca canyon runs roughly southeast to northwest, 
bisecting the newly designated critical habitat. Here, the western 
boundary of the critical habitat aligns with the 200-m isobath to the 
north and south of the canyon, crossing the deeper mouth of the canyon. 
The canyon's complex bathymetry, with many islands and inlets where the 
seafloor is shallower than 200 m, makes strict adherence to a 200-m 
cutoff impractical. More importantly, as noted in the Draft and Final 
Biological Reports, the Strait of Juan de Fuca (including the deeper 
waters of the canyon) is a high use area for the Southern Resident 
killer whales. Portions of the canyon below 200 m in depth are included 
in the existing critical habitat designation for inland waters, making 
the new critical habitat consistent with the previous designation. 
Therefore, the entire area is included in the designated critical 
habitat.
    Comment 5: One commenter requested that we include Hood Canal in 
the critical habitat designation. The commenter acknowledged that 
Southern Resident killer whales have not been documented in Hood Canal 
since 1995, but argued that the canal could be considered either 
previously occupied habitat essential to recovery of the species or 
occupied habitat on the basis that whales alive at the time of listing 
had been documented in the canal. The commenter also contended that the 
currently occupied habitat is inadequate for conservation, making it 
necessary to protect and restore areas that were previously occupied 
but are now unoccupied areas (even those unoccupied at the time of 
listing). Also, the commenter felt that efforts to improve salmon 
abundance in the canal would improve the quality of the habitat and 
result in conservation benefits when or if Southern Resident killer 
whales re-enter the canal.
    Response: Similar comments were submitted in response to the 2006 
proposed rule to designate critical habitat for inland waters (71 FR 
34571; June 15, 2006). As described in the 2006 final rule's response 
to comments (71 FR 69054; November 29, 2006), at that time we 
considered the best available data and concluded that we lacked 
sufficient information to either consider Hood Canal as occupied at the 
time of listing, or to determine that additional unoccupied habitat in 
Hood Canal was essential for the conservation of the species. With 
respect to the proposed revision to the critical habitat, the commenter 
did not provide new information beyond what was previously available, 
and we have found no additional evidence to consider Hood Canal as 
either occupied at the time of listing or essential for the 
conservation of the species.
    Section 3(5)(A) of the ESA defines critical habitat as areas either 
occupied or not occupied by the species at the time that it is listed. 
For this revision to critical habitat we considered the best available 
information on killer whale distribution and, similar to our conclusion 
in 2006, we do not have sufficient data to consider Hood Canal as 
occupied by the species at the time of listing, nor are there available 
data supporting that this area is currently occupied by the species. In 
regards to designation of unoccupied habitat areas, we considered the 
best available information, and we are not aware of any unoccupied 
areas, including Hood Canal, that meet conservation needs of Southern 
Residents or are essential for their conservation. Therefore, we are 
not designating Hood Canal as either occupied or unoccupied critical 
habitat. If the whales do return to Hood Canal in response to 
increasing populations of prey species, we will continue to work with 
the local community to gather information and reevaluate the importance 
of Hood Canal as Southern Resident killer whale habitat.
    Comment 6: Two commenters opposed the designation of Southern 
Resident killer whale critical habitat in Southeast Alaska. Another 
commenter urged NMFS to continue gathering information about the 
Southern Resident killer whale's use of Alaskan waters to inform 
potential expansion of critical habitat in the future.
    Response: We did not propose and are not designating areas in 
Southeast Alaskan waters because of the limited information about the 
whales' distribution, behavior, and habitat use in these areas. NMFS 
continues to evaluate any reported sightings of killer whales in Alaska 
for matches to the Southern Resident killer whale DPS.

Unoccupied Areas

    Comment 7: One commenter requested that we consider further 
expanding the area designated as critical habitat to account for 
potential impacts from climate change. The commenter felt that we had 
not analyzed the best available science on potential climate change 
impacts before concluding that insufficient evidence exists to 
designate unoccupied areas as critical habitat.
    Response: Contrary to the commenter's claims, we thoroughly 
considered all available evidence regarding the potential impacts of 
climate change on Southern Resident killer whales and presented these 
findings in the Draft Biological Report (NMFS 2019a). Our guidance 
provides that ``when designating critical habitat, NMFS will consider 
proactive designation of unoccupied habitat when there is adequate data 
to support a reasonable inference that the habitat is essential for the 
conservation of the species because of the function(s) it is likely to 
serve as climate changes'' (NMFS 2016). At this time, there exists very 
little information regarding the potential impacts of climate change on 
the distribution and habitat use of Southern Resident killer whales 
over the longer-term, including whether or how the geographic areas 
occupied by the species might change. The commenter did not cite any 
additional research or information that would improve our understanding 
of unoccupied areas that would likely become essential for the 
conservation of the Southern Resident killer whales as climate changes. 
Thus, there remains insufficient evidence to identify unoccupied areas 
based on potential impacts from climate change. As noted in the 
Biological Report, it will be important to continue monitoring Southern 
Resident killer whales and their prey to evaluate responses to climate 
change and ensure appropriate habitat protections.
    We also note that we have the authority to revise critical habitat 
designations as appropriate and in light of new information, which 
provides a mechanism for addressing and incorporating changing 
understandings

[[Page 41674]]

of the species' use of new areas over time (16 U.S.C. 
1533(a)(3)(A)(ii)).

Essential Features

    Comment 8: A number of commenters, including those from the Marine 
Mammal Commission and the state of Washington, requested that we 
include sound as a fourth essential feature. These commenters pointed 
out that killer whales rely on sound to navigate, forage, mate, avoid 
predators, and communicate with one another, and emphasized the impacts 
of anthropogenic noise on the whales. Several commenters argued that 
there now exists sufficient information to support including sound as 
an essential feature, and suggested we consider new science that has 
emerged since the 2006 designation, and were concerned that considering 
sound via the prey and passage essential features does not sufficiently 
address communication space for social behavior, which they pointed out 
is fundamental to mother-offspring bonding, pod cohesion, and 
ultimately the health and recovery potential of the DPS. One commenter 
maintained that by excluding sound as an essential feature, we fail to 
determine whether sound may require special management considerations 
or protections. Others were concerned that military activities, 
specifically would not be adequately addressed. Several commenters 
emphasized that if sound is not included as an essential feature, then 
the rule should describe more explicitly how communication space is 
encompassed within the prey and passage essential features.
    Some commenters felt that we did not adequately justify the 
apparent inconsistency between the approach for Southern Resident 
killer whales and the approach we took in the critical habitat 
designations for two other ESA-listed odontocetes in U.S. waters: The 
Cook Inlet beluga whale DPS and the Main Hawaiian Islands insular false 
killer whale DPS, which include sound as a feature or a characteristic 
of a feature. Several of these commenters also mentioned Canada's 
inclusion of sound as an element of critical habitat for Southern 
Resident killer whales in Canadian waters. They felt the approaches 
were contradictory, and asked for clarification to reconcile the 
differences.
    One commenter stated their support for our determination in the 
proposed rule not to include sound as a fourth essential feature, 
noting the lack of data to support quantitative thresholds. The 
commenter felt that the effects of sound on the whales are more 
appropriately considered through the existing procedures for section 7 
consultations and Marine Mammal Protection Act (MMPA) incidental take 
authorizations.
    Response: As stated in the proposed rule, we considered the new 
information on killer whale responses to anthropogenic noise and the 
acoustic quality of habitats for whale populations that has become 
available since publication of the 2006 critical habitat designation 
for Southern Resident killer whales. Much of this new research was 
presented in the Draft Biological Report supporting the critical 
habitat proposal and we have incorporated additional publications 
submitted through the comment period or that have become available in 
the last year in the Final Biological Report (NMFS 2021a) supporting 
the final rule. Contrary to the concerns of some commenters, we did not 
ignore the new research, which enhances our ability to consider the 
effects of sound on the whales' habitat through the prey and passage 
essential features, as well as impacts of sound in our analyses of 
effects to individual whales through section 7 consultations. After 
carefully considering the studies cited by commenters seeking to 
include sound as a fourth essential feature, we are still not able to 
identify specific quantitative in-water sound levels or thresholds for 
communication, behavioral or displacement impacts on Southern Resident 
killer whales (as requested by CBD) and we consider effects of sound 
qualitatively (see further explanation in this comment response, in the 
section `Physical and Biological Features Essential to Conservation', 
and in the Biological Report, NMFS 2021a, section V.B.4). Because 
potential impacts of sound are already addressed through qualitative 
section 7 analyses of the prey and passage features, as well as 
analyses of effects of sound on individual whales themselves, we have 
not included sound as a separate feature. We will, however, consider 
results of ongoing and future studies and will review and reconsider 
this conclusion as our scientific understanding of the acoustic ecology 
of Southern Resident killer whales advances.
    We agree with commenters that communication space for social 
behavior is important for killer whales, and in the existing inland 
waters critical habitat, and as expected for the coastal areas 
designated in this final rule, we will continue to consider the effects 
of sound on these aspects of the Southern Resident killer whales' life 
history through the passage and prey essential features as well as in 
section 7 analyses considering the impacts of noise on the whales 
themselves. In response to the concerns expressed in the comments, 
however, we have added more detail to the Final Biological Report (NMFS 
2021a, sections V.B.2., V.B.3, and V.B.4) to clarify that the effects 
of anthropogenic noise on communication and social behavior are and 
will continue to be evaluated through the prey and passage essential 
features, as well as analyses of effects to individual whales. 
Specifically, indirect impacts of anthropogenic noise on communication 
and social behavior are addressed in section 7 consultations when we 
consider and address impacts of anthropogenic noise on the whales 
themselves, which would also take into consideration elements including 
communication and social behavior as they can relate to the health and 
fitness of individual whales. Specifically, effects of anthropogenic 
noise that result in ``take'' (including harm) to individual whales are 
currently addressed under section 7 of the ESA (pursuant to the 
standard for considering whether a proposed action would jeopardize the 
continued existence of the species). For example, the effects of 
military noise on Southern Resident killer whales and other marine 
mammals, including on their communication space, are addressed through 
ongoing NMFS permitting of U.S. Navy Northwest Training and Testing 
activities (85 FR 33914; June 2, 2020). In addition, if data indicate 
that anthropogenic noise from a particular Federal action is preventing 
or impeding access to prey or preventing or impeding successful feeding 
within designated critical habitat, then such effects could constitute 
an adverse effect on the prey essential feature and thus the designated 
critical habitat itself and for that reason would likely also be 
addressed under section 7 of the ESA (pursuant to the standard for 
considering whether an action poses destruction or adverse modification 
to critical habitat). Thus, the critical habitat and essential features 
as defined in this rule will provide a measure of protection from noise 
degradation to the extent that an action might cause such noise that 
would interfere with the whales' ability to use (e.g., move through for 
foraging, migrating, social behavior, or access prey) and successfully 
feed (including social communication for prey sharing) within the 
critical habitat. Furthermore, the critical habitat designations as 
finalized in this rule will result in the added requirement that 
Federal agencies explicitly analyze any relevant impacts of noise on 
Southern Resident prey species.

[[Page 41675]]

    There are several reasons why the approach to sound for Southern 
Resident killer whales is compatible with the approaches for the other 
two species, Cook Inlet beluga whale DPS and the Main Hawaiian Islands 
insular false killer whale (MHI IFKW) DPS, which include sound 
qualitatively as a feature or a characteristic of a feature. The MHI 
IFKW designation considered the effects of sound on navigation, 
communication, and foraging by including sound as a characteristic of 
the habitat feature. Similarly, we are able to analyze the equivalent 
effects for Southern Resident killer whales through the passage and 
prey features as these similarly address navigation for access to 
areas, communication for prey sharing, and movement for foraging 
(access to prey). For Cook Inlet beluga whale critical habitat, the 
sound feature focuses on identifying noise levels that do not lead to 
abandonment of the area, providing a level of protection that is 
equivalent to our consideration of acoustic barriers in the passage 
feature for Southern Resident killer whales (passage feature addresses 
access to areas). Therefore, descriptions of both sound essential 
features for false killer whales and beluga whales inform the 
qualitative assessment of habitat-related impacts from anthropogenic 
sound, specifically on passage, access to critical habitat, and use of 
critical habitat, similar to passage and prey features for Southern 
Residents killer whales that equally address access and use of critical 
habitat. Likewise, the critical habitat (Habitat of Special Importance) 
established by Canada in Canadian waters includes an acoustic 
environment feature that addresses the effects of anthropogenic 
underwater noise on life history functions, but all the life history 
functions that the feature includes are captured in the prey and 
passage features of critical habitat in U.S. waters, making the two 
approaches consistent in the level of protection they provide for the 
species. Finally, no qualitative sound-related feature has been 
identified for other whale species with larger ranges (like Southern 
Resident killer whales) such as humpback whales (84 FR 54354; October 
9, 2019), North Atlantic right whales (81 FR 4838, January 27, 2016), 
and north Pacific right whales (68 FR 19000, April 8, 2008).
    Consistent with the proposed rule, this final rule does not include 
sound as an essential feature for Southern Resident killer whale 
critical habitat. We will continue to consider the habitat-related 
effects of anthropogenic sound on the whales via the prey and passage 
essential features, as detailed above.
    Comment 9: Many commenters discussed the importance of prey 
availability for the recovery of Southern Resident killer whales, 
noting the value of the coastal critical habitat for supporting the 
whales' access to prey. One commenter felt that our description of the 
prey feature should provide greater specificity by specifying prey 
species and priority Chinook salmon runs that constitute essential 
features, and identifying quantitative thresholds for prey quantity, 
quality, and availability.
    Response: We agree with the commenters' view that prey availability 
is important to Southern Resident recovery, and we will continue to 
carry out section 7 consultations to evaluate potential jeopardy to 
killer whales from fisheries and other activities with a Federal nexus 
that may impact the whales' prey species. In addition, certain priority 
Chinook salmon runs consumed by Southern Resident killer whales are 
also ESA-listed, and we will continue to carry out section 7 
consultations on Federal activities that may jeopardize ESA-listed 
salmon. As stated in the proposed rule and supported by the subsequent 
Final Draft Risk Assessment for Salmon FMP Impacts to Southern Resident 
Killer Whales (PFMC 2020) and our recent Biological Opinions on 
Implementation of the PFMC Salmon FMP (NMFS 2020, NMFS 2021c), we 
continue to find that there is not sufficient information to establish 
a specific threshold level of prey abundance and accessibility for 
ensuring recovery of the whales. While we have used thresholds of low 
Chinook salmon abundance to describe high risk conditions for the 
whales, we have not been able to identify a quantitative threshold for 
a critical habitat prey feature. Even without such a threshold for 
critical habitat, however, the final rule and Final Biological Report 
highlight the rigorous scientific information available that supports 
our evaluation of prey availability as a feature. That supporting 
information also includes our current understanding of the different 
prey species important to the whales.
    There is extensive evidence that Southern Resident killer whales 
have a preference for Chinook salmon prey in inland waters in the 
summer and fall, as well as other species of salmonids at particular 
times and locations (Final Biological Report, NMFS 2021a). There is 
emerging scientific information supporting a similar preference for 
Chinook salmon in coastal waters as longer term studies have documented 
for inland waters, though the studies in coastal waters have also 
documented a wider range of prey species in the diet compared to the 
diet in inland waters. The coastal data, however, are limited (small 
sample size from limited areas and seasons compared to data for inland 
waters) and still emerging as research continues. Therefore, we have 
not specified prey species in the description of the prey feature at 
this time. However, we will continue to use the best available 
information on prey species in the diet of the whales and incorporate 
new information on prey as our understanding evolves, as we have in 
consultations on the inland waters critical habitat.
    Comment 10: One commenter disputed the proposed rule's analysis 
regarding the relationship between Chinook salmon abundance on the 
outer coast and the availability of prey for Southern Resident killer 
whales. The commenter felt that NMFS did not use the best available 
data in concluding that Chinook salmon abundance on the outer coast may 
pose a risk to the killer whales, citing several studies for additional 
consideration. The commenter emphasized the uncertainties that still 
exist in our understanding of the relationship between Southern 
Resident killer whales population dynamics and Chinook salmon. They 
noted the new information available in the Risk Assessment produced by 
the PFMC's Southern Resident Killer Whale Working Group, and requested 
that these findings be incorporated into the final rule.
    Response: The Draft Biological Report (NMFS 2019a) provided a 
comprehensive review of the scientific literature on prey availability 
as a potential threat to Southern Resident killer whales. The Draft 
Biological Report included studies noted by the commenter for 
consideration, and acknowledged the limitations and uncertainties of 
the currently available information. Since the publication of the 
proposed rule on August 27, 2019, new research has been published in 
the Final Draft Risk Assessment for Salmon FMP Impacts to Southern 
Resident Killer Whales (PFMC 2020) and our recent Biological Opinions 
on Implementation of the PFMC Salmon FMP (NMFS 2020, NMFS 2021c). The 
Final Biological Report (NMFS 2021a) and FEA (IEc 2021) have been 
updated to include these new analyses.
Special Management Considerations
    Comment 11: Several commenters mentioned the importance of 
addressing upstream threats to Southern Resident

[[Page 41676]]

killer whales' prey, such as sea lion predation, dams, land-based water 
pollution, and liquefied natural gas terminals. Some of these 
commenters felt the proposed rule did not go far enough to address 
these threats, while others felt NMFS should focus on addressing these 
threats instead of designating critical habitat. Alternative solutions 
proposed by commenters included increased hatchery production; salmon 
habitat management, protection, and restoration; dam removal; and sea 
lion predation management. Commenters emphasized the need to consider 
activities outside the critical habitat with downstream impacts that 
could adversely impact essential features of the critical habitat. One 
commenter requested that NMFS produce a map of areas outside the 
critical habitat where activities could trigger section 7 consultation.
    Response: NMFS leads and supports a wide range of activities that 
aim to recover Southern Resident killer whales and their prey, 
including efforts to address upstream threats highlighted by 
commenters. As one of many tools to support recovery efforts, 
designating critical habitat provides additional conservation 
protections for the whales and their habitat. ESA section 7 requires 
that Federal agencies ensure their actions are not likely to destroy or 
adversely modify critical habitat. This requirement applies to actions 
occurring both within and outside of designated critical habitat areas 
which can impact the features of the critical habitat. For example, 
consultation would be required on activities that occur in upstream 
freshwater locations if those actions may affect essential habitat 
features in designated critical habitat. However, as described in the 
DEA and FEA (section 1.3, IEc 2019, 2021), no distance threshold can be 
predetermined for how far upstream from the critical habitat 
consultation may occur. Therefore, it is not possible to produce a map 
of areas where certain activities would trigger section 7 consultation.
    Comment 12: Several commenters expressed concern about the impacts 
of vessel traffic on Southern Resident killer whales. One commenter 
requested that we consider including additional management measures for 
vessel traffic in the critical habitat final rule, and another 
requested that we not exclude the San Francisco Bay shipping lanes.
    Additionally, several commenters expressed concern about potential 
changes to vessel traffic management in response to the designation of 
critical habitat. They were concerned that the critical habitat 
designation could result in modifications to routing, voyage planning, 
and navigation restrictions that would adversely impact maritime 
shipping and towing industries.
    Response: The proposed rule identified vessel traffic as one of 
twelve types of human activities that have the potential to affect the 
habitat features essential to the conservation of Southern Resident 
killer whales. The Final Biological Report describes the potential 
impacts of vessel traffic on, and existing regulations and procedures 
in place to protect, the whales and their habitat. Vessel traffic has a 
Federal nexus through the shipping lanes established by the U.S. Coast 
Guard (USCG) under the Ports and Waterways Safety Act, and the USCG 
consults with NMFS to evaluate impacts on whales and their critical 
habitat for the regulatory codification of Traffic Separation Schemes 
(TSS).
    We did not propose to exclude and are not excluding the San 
Francisco Bay shipping lanes from critical habitat designation, nor do 
we anticipate that designation will result in changes to the San 
Francisco Bay TSS. As described in section 2.9 of the DEA and FEA (IEc 
2019, 2021), based on our experience with section 7 and informal 
consultations with USCG regarding codification of TSS, NMFS does not 
anticipate the expanded critical habitat will generate additional 
conservation efforts for killer whales associated with vessel traffic 
management beyond the existing need to avoid jeopardy to the whales.
    Comment 13: Two commenters stated that scientific research should 
be included in the economic analysis as an activity that may be 
affected by the critical habitat designation. One commenter stated that 
it was unclear if scientific research activities were considered in the 
economic analysis, and mentioned that basic marine research supported 
by the National Science Foundation (NSF) occurs within the proposed 
critical habitat (e.g., NSF Ocean Observatories Initiative). One 
commenter recommended that we list this category of activity as part of 
our summary of activities that may adversely modify the critical 
habitat or be affected by the designation as required by section 
4(b)(8) of the ESA.
    Response: The effects of certain scientific research activities on 
Southern Resident killer whale critical habitat and potential for 
changes in management of those activities following critical habitat 
expansion were considered within the discussion of other related 
activities in the DEA and are still considered in the FEA (IEc 2019, 
2021) These activities are directly related to other categories of 
activities that may affect critical habitat and are, therefore, grouped 
within those activities instead of as a separate category of activity. 
For example, seismic-based research is discussed in section 2.12 
Geologic Surveys (Including Seismic Surveys), and research related to 
renewable energy development is discussed in section 2.6. Alternative 
Energy Development. Fisheries-related scientific research is included 
under the category of Fisheries in section 2.3. Other types of 
scientific research were not identified as posing a specific threat to 
the essential features of Southern Resident killer whale critical 
habitat, but future consultations on these activities will need to 
include an analysis of potential effects on critical habitat. In all 
cases, NMFS has not identified any conservation efforts that will 
change management of any scientific research activity following the 
critical habitat expansion. The DEA and FEA do consider the 
administrative costs to NMFS, the action agency, and third parties 
relative to this activity associated with future section 7 
consultations. These costs are reported in Exhibit 3-9 in the 
categories of ``Fisheries'' (for fisheries-related research), 
``Renewable Energy Development'' (for wind and wave energy research), 
``Seismic Surveying'' (for seismic research), and ``Other'' (for other 
types of research).

Application of ESA Section 4(b)(2)

Economic Impacts
    Comment 14: A representative from the USACE Sacramento District 
commented that consultations in the Sacramento District will need to 
consider the effects of their permitted activities on Southern Resident 
killer whale critical habitat, and thus those activities may be 
affected by the critical habitat expansion. Additionally, costs 
associated with future section 7 consultations will be incurred by the 
District.
    Response: We thank the commenter for pointing out the oversight in 
the DEA's exclusion of the Sacramento District from the list of USACE 
Districts that manage and conduct activities potentially affected by 
the expansion of critical habitat for Southern Resident killer whales. 
We agree that because the range of the prey species, which is an 
essential feature of Southern Resident killer whale critical habitat, 
extends into the Sacramento District's area of authority, activities in 
that district may be affected. Consistent with the

[[Page 41677]]

comment, we agree that those costs identified in the report as 
potentially resulting from the critical habitat expansion relative to 
USACE projects may include projects in the Sacramento District. Because 
NMFS does not anticipate any changes to the management of USACE 
permitted or implemented activities, these costs are limited to the 
administrative costs to NMFS, the USACE, and third party permit 
applicants of participating in future section 7 consultations. Section 
2.10 of the FEA (IEc 2021) includes the Sacramento District in the list 
of USACE districts that manage activities that may be affected by the 
expansion (may have administrative costs associated with potential 
future consultations).
    Comment 15: Multiple commenters stated that the economic analysis 
did not adequately consider the potential costs of the proposed 
critical habitat designation on fisheries. One commenter noted that 
nearly all costs identified in the economic analysis are internal costs 
to NMFS instead of third-party costs to the fishing industry. 
Commenters acknowledged that NMFS considers additional conservation 
efforts as a result of critical habitat designation to be unlikely but 
noted that if this assumption proves false, there could be significant 
economic impacts to fisheries. The commenters suggested that the 
economic analysis should provide a full range of potential economic 
impacts to fisheries, including an analysis of potential fisheries 
closures. The commenters suggested that such analysis would better 
inform the fishing industry, as well as better allow NMFS to weigh 
potential costs versus benefits of the designation.
    Response: The DEA considered the potential for the expansion of 
critical habitat to result in additional conservation efforts, 
including fishery closures, for commercial and recreational fisheries 
(see section 2.3). At the time of DEA development, NMFS was not able to 
envision a scenario in which the expansion of critical habitat for 
Southern Resident killer whales would result in changes to management 
of salmon fisheries or fisheries with incidental catch of salmon. This 
conclusion was due to a number of factors including the ESA listing and 
consequent need for recovery of many salmon populations themselves, 
existing consideration of fishery impacts and prey availability 
relative to the potential for jeopardy to Southern Resident killer 
whales even absent critical habitat expansion, and experience over the 
past 15 years implementing the inland waters critical habitat for 
Southern Resident killer whales, which has not resulted in fishery 
management changes beyond those considered during ESA consultation on 
prey effects relative to jeopardy. Since that time, there has been 
substantial attention to Southern Resident killer whale conservation 
and recognition of the link between their recovery and salmon 
abundance, suggesting that numerous factors outside of the potential 
critical habitat expansion will continue to drive policy decisions 
related to management of salmon fisheries. As a result, NMFS is unable 
to envision a scenario in which the expanded designation of critical 
habitat will result in changes to fishery management. Given this, we 
have not quantified costs associated with hypothetical management 
actions that are not anticipated outcomes of this critical habitat 
rule. Quantified costs are thus limited to those administrative costs 
incurred as a result of section 7 consultation on fishery management 
plans.
    The administrative costs quantified in the DEA and FEA are not 
exclusive to NMFS. As shown in Exhibit 1-3 of the FEA, the analysis 
estimates administrative costs for each forecasted consultation to 
NMFS, a Federal action agency, and a third party (IEc 2021). A third 
party to consultation could be a private company (e.g., an applicant 
for a Federal permit), a local or state government, or some other 
entity. In the case of fisheries, administrative costs are incurred 
through the process of consultation on fishery management plans. 
Although private third parties such as individual fishermen are not 
generally involved in this process, administrative effort on the part 
of one or more third parties associated with participation in that 
process is included in the estimated costs of consultation.
    Comment 16: Numerous commenters stressed the need for the economic 
analysis to consider the value of and potential impacts to fisheries 
and associated communities in California, Oregon, and Washington. These 
commenters stated that the critical habitat designation could harm the 
livelihoods of fishermen and coastal communities all along the West 
Coast.
    Response: The FEA (IEc 2021) recognizes the economic value of 
fisheries to communities in Washington, Oregon, and California (IEc 
2021, section 2.3.1). However, the critical habitat designation is 
unlikely to result in additional conservation efforts due to baseline 
protections associated with the ESA-listing status of both the killer 
whales and salmon, i.e., due to the need to consider the potential for 
fisheries to jeopardize the species even without a critical habitat 
designation. As a result, we conclude that the rule will not have 
economic impacts on fishing activity beyond administrative costs 
associated with section 7 consultation on fishery management plans.
    Comment 17: One commenter expressed the opinion that the economic 
analysis does not account for certain types of economic costs of the 
designation to the fishing industry, including delays associated with 
consultation and litigation. The commenter describes that additional 
consultations and/or litigation associated with the final rule will 
result in costs to NMFS that have not been accounted for such as staff 
resources that are required to administer consultations and/or 
litigation associated with the final rule. Consultation requirements 
and litigation could result in costs to the industry, particularly if 
it results in other important actions being delayed because of this 
rule.
    Response: The administrative time and resources associated with 
NMFS' participation in consultations resulting from the critical 
habitat expansion, as well as participation of other Federal agencies 
and third parties to consultations, are explicitly included in the 
administrative costs quantified in the FEA (IEc 2021). It would be 
speculative to estimate costs associated with delays in management 
actions due to consultation requirements absent data that specifies the 
nature, extent, and duration of these types of delays, particularly in 
light of the fact that NMFS does not anticipate that the outcome of 
consultations would change as a result of the critical habitat 
expansion.
    While potential exists for third party lawsuits to result from 
critical habitat designation, the likelihood, timing, and outcome of 
such lawsuits are uncertain. While critical habitat designation may 
stimulate additional legal actions, data do not exist to reliably 
estimate impacts. That is, estimating the number, scope, and timing of 
potential legal challenges would require significant speculation. 
Furthermore, litigation risk exists regardless of the critical habitat 
designation given the existing protections already afforded the whales 
under the MMPA and ESA.
National Security Impacts
    Comment 18: Multiple commenters, including the Washington 
Department of Fish and Wildlife, expressed opposition to the proposed 
exclusions of the QRS off the coast of Washington and the associated 
10-km buffer around this area. Several commenters stated that the 
proposed exclusion was overly

[[Page 41678]]

broad and not adequately justified. Several commenters stated that 
planned activities, such as use of sonar and explosives, can impact the 
whales and their prey, and additional mitigation measures or 
restrictions on the Department of the Navy's (``Navy'') activities 
within the QRS should be implemented. One commenter noted that the QRS 
overlaps with the OCNMS, an area that requires a higher standard of 
resource protection. Several commenters noted that the QRS area was 
within a high use foraging and passage area for Southern Resident 
killer whales. Some commenters noted that the 10-km buffer overlaps and 
is adjacent to priority Chinook salmon rivers and expressed concern 
that the exclusion may impact their ability to access prey. Several 
commenters suggested not excluding from the critical habitat 
designation a north-south nearshore corridor for passage through the 
QRS. Commenters requested we reconsider the Navy's request for this 
exclusion given the importance of the area for Southern Resident killer 
whales.
    Acknowledging the requirement to balance military readiness needs 
when designating critical habitat, one commenter made several points in 
favor of the exclusion, noting the low number of training and testing 
events that the Navy expected to carry out within the QRS and that 
those activities would be subject to review under section 101(a)(5)(A) 
of the MMPA and section 7 of the ESA.
    Response: As discussed in the Draft and Final ESA Section 4(b)(2) 
Report (NMFS 2019b, 2021b), to weigh the national security impacts 
against conservation benefits of a potential critical habitat 
designation, we considered the size of the requested exclusion and the 
amount of overlap with the specific critical habitat area; the relative 
conservation value of the particular area for the Southern Resident 
killer whales; the importance of the site to the Navy mission and 
military readiness; the likelihood that the Navy's activities would 
destroy or adversely modify critical habitat, and the likelihood that 
NMFS would require project modifications to reduce or avoid these 
impacts; and, the likelihood that other Federal actions may occur in 
the site that would no longer be subject to the critical habitat 
provision if the particular area were excluded from the designation. In 
response to the public comments, we reconsidered these factors, 
information provided by the Navy, and also requested additional 
information from the Navy regarding their activities in the portion of 
the QRS that also falls within the OCNMS.
    In making our decision with respect to this particular area, we did 
so within the framework of our joint NMFS/USFWS policy on 
implementation of section 4(b)(2) (81 FR 7226, February 11, 2016) 
(``Section 4(b)(2) Policy''). Specifically, when a DOD agency requests 
an exclusion on the basis of national-security or homeland security 
impacts, it must provide a ``reasonably specific justification'' of a 
probable incremental impact on national security that would result from 
the designation of that specific area as critical habitat (81 FR 7226; 
February 11, 2016). Where the request is substantiated with such a 
reasonably specific justification, we give ``great weight'' to those 
concerns in analyzing the benefits of exclusion.
    The QRS and proposed 10-km buffer comprise about 39 percent of Area 
1 (Coastal Washington/Northern Oregon Inshore) and about 25 percent of 
Area 2 (Coastal Washington/Northern Oregon Offshore), and about 28 
percent of Areas 1 and 2 combined, but a very small portion of the 
total critical habitat designations for the Southern Resident killer 
whale (8.5 percent). The QRS and associated buffer also have a 
significant degree of overlap with the OCNMS, where certain activities 
are prohibited or not authorized, including oil, gas, or mineral 
exploration, development, or production; discharging or depositing any 
material or other matter; drilling into, dredging, or otherwise 
altering the seabed, with some exceptions (15 CFR 922.152). Because of 
these prohibitions, the likelihood of other Federal activities being 
proposed in this area of the QRS may be limited.
    In support of their request for exclusion of this particular area, 
the Navy pointed to the extensive range of planned activities, which 
are described in their Final Northwest Training and Testing (NWTT) 
Supplemental Environmental Impact Statement (SEIS) published on 
September 18, 2020, and stated that any additional, future 
modifications to these activities to minimize impacts on Southern 
Resident killer whale critical habitat would impact the Navy's ability 
to meet mission requirements. The Navy pointed to the use of 
explosives, in particular, as being likely to have adverse effects on 
killer whale prey, although not likely at the population level for 
salmon prey. In their initial request, dated December 5, 2018, the Navy 
stated that if additional mitigation requirements result in having to 
halt, reduce in scope, or geographically or seasonally constrain 
testing activities to prevent adverse effects to critical habitat, this 
would in turn impact its ability to test and field new systems and 
platforms. To avoid potential, additional, spatial restrictions on its 
activities within the QRS, the Navy also requested exclusion of an 
additional 10-km buffer around the QRS from the critical habitat 
designation. The Navy determined the size for this buffer using sound 
attenuation modeling to calculate the farthest distance at which fish 
would be expected to be injured from the largest explosive the Navy can 
reasonably foresee testing in the QRS; and, in subsequent 
communications, the Navy further clarified that the size of the buffer 
also incorporated uncertainty for updates in resource-related science, 
changes in oceanographic conditions that could reduce attenuation, and 
the evolution of military technologies that may behave differently in 
the environment.
    We continue to find that the Navy has provided a reasonably 
specific justification to support the requested exclusion of the QRS, 
and consistent with our Section 4(b)(2) Policy (81 FR 7226; February 
11, 2016), we gave great weight to these concerns when analyzing the 
benefits of exclusion. Our consideration of the multiple factors 
discussed, coupled with the potential delay in critical missions in 
order to complete adverse modification analyses, caused us to continue 
to find that the benefits of excluding the QRS due to national security 
impacts outweigh the benefits of designating this portion of Areas 1 
and 2 as critical habitat for the Southern Resident killer whales. 
However, we are modifying our proposed exclusion of the buffer area. 
Specifically, we are not excluding a portion of the 10 km buffer area 
around the northeast corner of the QRS, extending along the East side 
of the QRS, where it overlaps with the OCNMS. As detailed in the 
Section 4(b)(2) Report (NMFS 2021b), we concluded the benefits of 
designating critical habitat for Southern Resident killer whales within 
this portion of the buffer are not outweighed by national security 
impacts of including that portion at this time.
    We acknowledge the concerns raised by the commenters regarding 
potential impacts to the whales and their prey as a result of certain 
Navy activities, such as sonar and explosives. The Biological and 
Conference Opinion on the Navy's Northwest Training and Testing 
Activities, issued by NMFS on October 19, 2020, addresses activities 
within the QRS and analyzed the effects of the Navy's planned 
activities on Southern Resident killer whales as well as their prey. As 
discussed in that consultation,

[[Page 41679]]

the Navy has adopted certain mitigation measures within the QRS, 
including the portion of the QRS that overlaps with the OCNMS, to avoid 
or minimize adverse impacts on marine mammals and other marine 
resources in this area. Exclusion of the QRS area will not impact our 
ability to continue to work closely with the Navy through the section 7 
consultation process to minimize and mitigate impacts to the Southern 
Resident killer whales as a result of the Navy's testing and training 
activities (see 85 FR 72312; November 12, 2020, and https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-northwest-training-and-testing-nwtt-2020).

Critical Habitat Identification

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and our implementing regulations and the key 
information and criteria used to prepare this revision to the Southern 
Resident killer whale critical habitat designation. In accordance with 
section 4(b)(2) of the ESA and our implementing regulations (50 CFR 
424.12), this designation is based on the best scientific information 
available.
    We followed a five-step process in order to identify the specific 
areas eligible for critical habitat designation: (1) Determine the 
geographical area occupied by the species at the time of listing, (2) 
identify physical or biological habitat features essential to the 
conservation of the species, (3) delineate specific areas within the 
geographical area occupied by the species on which are found the 
physical or biological features, (4) determine whether the feature(s) 
in a specific area may require special management considerations or 
protection, and (5) determine whether any unoccupied areas are 
essential for conservation. Our evaluation and determinations are 
described in detail in the Final and Draft Biological Reports (NMFS 
2019a, NMFS 2021a) and are summarized below.
    Beyond the identification and description of the areas, the 
critical habitat designation process also includes additional steps: 
Identify whether any area may be precluded from designation because the 
area is subject to an INRMP that we have determined provides a benefit 
to the species; and consider the economic, national security, or any 
other relevant impacts of designating critical habitat and determine 
whether to exercise our discretion to exclude any particular areas. 
These steps are described in the Final ESA Section 4(b)(2) Report (NMFS 
2021b) and the FEA (IEc 2021) and are summarized in later sections of 
this rule.

Geographical Area Occupied by the Species

    The term ``geographical area occupied by the species'' is defined 
as an area that may generally be delineated around a species' 
occurrences as determined by the Secretary (i.e., range). Such areas 
may include those areas used throughout all or part of the species' 
life cycle, even if not used on a regular basis (e.g., migratory 
corridors, seasonal habitats, and habitats used periodically, but not 
solely by vagrant individuals) (50 CFR 424.02).
    Southern Resident killer whale summer inland habitat use was 
previously described in the 2006 critical habitat designation (71 FR 
69054, November 29, 2006). At that time, few data were available on 
Southern Resident distribution and habitat use of coastal and offshore 
areas in the Pacific Ocean. While it was known that the whales occupied 
these waters for a portion of the year, only 28 sightings of Southern 
Resident killer whales were available to describe their coastal range 
(Krahn et al. 2004, NMFS 2006). In the 2006 designation, these coastal 
areas were included in the identified geographical area occupied by the 
species, but the lack of data precluded the agency from designating 
specific areas within the coastal range as critical habitat.
    Since the 2006 designation, considerable effort has been made to 
better understand the range and movements of Southern Resident killer 
whales once they leave inland waters. Land- and vessel-based 
opportunistic and survey-based visual sightings, satellite tracking, 
and passive acoustic research conducted since 2006 have provided an 
updated estimate of the whales' coastal range that extends from the 
Monterey Bay area in California, north to Chatham Strait in Southeast 
Alaska. In addition, these data have provided a better understanding of 
the whales' use of these waters, allowing us to identify areas that 
meet the definition of critical habitat under the ESA.
    While the range of Southern Resident killer whales includes coastal 
and inland waters of British Columbia, Canada, we cannot designate 
critical habitat in areas outside of U.S. jurisdiction (50 CFR 
424.12(g)). The Government of Canada has designated critical habitat 
for Northern and Southern Resident killer whales in Canadian waters 
under its Species at Risk Act. In its 2008 recovery strategy and 2011 
amended recovery strategy, the Government of Canada identified the 
Canadian side of Haro and Juan de Fuca Straits, as well as Boundary 
Pass and adjoining areas in the Strait of Georgia as critical habitat 
for Southern Resident killer whales (Fisheries and Oceans Canada 2011). 
The Government of Canada recently designated a new critical habitat 
area for Northern and Southern Resident killer whales in ocean waters 
on the continental shelf off southwestern Vancouver Island, including 
Swiftsure and La P[eacute]rouse Banks (Fisheries and Oceans Canada 
2018).
    Some Alaskan waters are considered to be within the geographic area 
occupied by Southern Resident killer whales, but we are not expanding 
critical habitat there at this time because there is insufficient 
information about the whales' distribution, behavior, and habitat use 
in these areas. For example, there is only one sighting of Southern 
Resident killer whales in Southeast Alaska, in Chatham Strait in 2007. 
While we can infer that some of the essential habitat features, such as 
prey, are present to support the whales there, we do not have 
sufficient data to adequately describe Southern Resident use of habitat 
features in this area or identify specific areas with those features.

Physical and Biological Features Essential to Conservation

    The ESA does not specifically define physical or biological 
features. However, court decisions and joint NMFS and USFWS regulations 
at 50 CFR 424.02 (81 FR 7413; February 11, 2016) provide guidance on 
how physical or biological features are expressed. Physical and 
biological features support the life-history needs of the species, 
including but not limited to, water characteristics, soil type, 
geological features, sites, prey, vegetation, symbiotic species, or 
other features. A feature may be a single habitat characteristic, or a 
more complex combination of habitat characteristics. Features may 
include habitat characteristics that support ephemeral or dynamic 
habitat conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    Based on the best available scientific information regarding 
natural history and habitat needs, the following features were 
identified in the 2006 critical habitat designation as essential to the 
conservation of the species within inland waters of Washington: (1) 
Water

[[Page 41680]]

quality to support growth and development; (2) prey species of 
sufficient quantity, quality and availability to support individual 
growth, reproduction and development, as well as overall population 
growth; and (3) passage conditions to allow for migration, resting, and 
foraging. We identified the same three biological and physical features 
as essential for the conservation of Southern Resident killer whales 
within their coastal range, as described below.
    (1) Water quality to support growth and development. Water quality 
supports Southern Resident killer whales' ability to forage, grow, and 
reproduce free from disease and impairment. Southern Resident killer 
whales are highly susceptible to biomagnification of pollutants, such 
that chemical pollution is considered one of the prime impediments to 
their recovery (NMFS 2008). Water quality is essential to the whales' 
conservation, given the whales' present contamination levels, small 
population numbers, increased extinction risk caused by any additional 
mortalities, and geographic range (and range of their primary prey) 
that includes highly populated and industrialized areas. Water quality 
is especially important in high-use areas where foraging behaviors 
occur and contaminants can enter the food chain. The absence of 
contaminants or other agents of a type and/or amount that would inhibit 
reproduction, impair immune function, result in mortalities, or 
otherwise impede the growth and recovery of the Southern Resident 
population is a habitat feature essential for the species' recovery. 
Exposure to oil spills also poses additional direct threats as well as 
longer-term population level impacts. Therefore, the absence of these 
chemicals is essential to Southern Resident conservation and survival.
    (2) Prey species of sufficient quantity, quality and availability 
to support individual growth, reproduction and development, as well as 
overall population growth. Southern Resident killer whales need to 
maintain their energy balance all year long to support daily activities 
(foraging, traveling, resting, socializing) as well as gestation, 
lactation, and growth. Maintaining their energy balance and body 
condition is also important because when stored fat is metabolized, 
lipophilic contaminants may become more mobilized in the bloodstream, 
with potentially harmful health effects (Mongillo et al. 2016). 
Southern Resident killer whales are top predators that show a strong 
preference for salmonids in inland waters, particularly larger, older 
age class Chinook (age class of 3 years or older) (Ford & Ellis 2006, 
Hanson et al. 2010). Samples collected during observed feeding 
activities, as well as the timing and locations of killer whales' high-
use areas that coincide with Chinook salmon runs, suggest the whales' 
preference for Chinook salmon extends to outer coastal habitat use as 
well (Hanson et al. 2017, Shelton et al. 2018, Hanson et al. 2021). At 
some low Chinook abundance level, the prey available to the whales will 
not be sufficient to forage successfully leading to adverse effects on 
body condition or fecundity (NMFS 2020). Habitat conditions should 
support the successful growth, recruitment, and sustainability of 
abundant prey to support the individual growth, reproduction, and 
development of Southern Resident killer whales.
    Age, size, and caloric content all affect the quality of prey, as 
do contaminants and pollution. The availability of key prey is also 
essential to the whales' conservation. Availability of prey along the 
coast is likely limited at particular times of year due to the small 
run sizes of some important Chinook salmon stocks, as well as the 
distribution of preferred adult Chinook salmon that may be relatively 
spread out prior to their aggregation when returning to their natal 
rivers. Availability of Chinook salmon to the whales may also be 
impacted by sound from vessels or other sound sources if they raise 
average background noise within the animal's critical bandwidth to a 
level that is expected to chronically or regularly reduce echolocation 
space (Joy et al., 2019, Veirs et al. 2016), and by competition from 
other predators including other resident killer whales, pinnipeds, and 
fisheries (Chasco et al. 2017).
    (3) Passage conditions to allow for migration, resting, and 
foraging. Southern Resident killer whales are highly mobile, can cover 
large distances, and range over a variety of habitats, including inland 
waters and open ocean coastal areas from the Monterey Bay area in 
California north to Southeast Alaska. The whales' habitat utilization 
is dynamic. Analyses of Southern Resident killer whales' movement 
patterns on the outer coast from satellite tag data have revealed 
preferred depth bands and distances from shore that suggest potential 
travel corridors, and variations in travel speed or duration of 
occurrence that may indicate different behavioral states (Hanson et al. 
2017).
    Southern Resident killer whales require open waterways that are 
free from obstruction (e.g., physical, acoustic) to move within and 
migrate between important habitat areas throughout their range, find 
prey, communicate, and fulfill other life history requirements. As an 
example of an ``acoustic obstruction,'' killer whale occurrence in the 
Broughton Archipelago, Canada declined significantly when acoustic 
harassment devices were in use at a salmon farm, and returned to 
baseline levels once the devices were no longer used (Morton & Symonds 
2002), indicating the introduction of this chronic noise source into 
the environment acted as an acoustic barrier and/or deterrent to the 
whales' use of the area. The passage feature may be less likely to be 
impacted in coastal ocean waters compared to the more geographically 
constricted inland waters because the whales may be able to more easily 
navigate around potential obstructions in the open ocean, but these 
passage conditions are still a feature essential to the whales' 
conservation and which may require special management considerations or 
protection.
    We also considered whether to identify sound as a fourth essential 
feature. Southern Resident killer whales produce and detect sounds for 
communication, navigation, and foraging. An acoustic environment, or 
soundscape, in which the whales can detect and interpret sounds is 
critical for carrying out these basic life functions. In recognition of 
this, we previously considered identifying sound as a potential 
essential feature (69 FR 76673; December 22, 2004), but ultimately 
concluded that we lacked sufficient information to do so. CBD 
petitioned us to again consider identifying in-water sound as an 
essential feature of the currently designated critical habitat and any 
new designation.
    We considered the request and examined new information that has 
become available since publication of the 2006 critical habitat 
designation final rule, but similar to limitations in our knowledge in 
2006, at this time we are not able to identify specific in-water sound 
levels or thresholds for communication, behavioral or displacement 
impacts as specifically requested in the petition by CBD. More 
importantly, we are able to assess adverse habitat-related effects of 
anthropogenic sound by evaluating impacts to the prey and passage 
essential features of current critical habitat for Southern Resident 
killer whales, as well as to the whales themselves, and thus we do not 
consider it necessary to identify sound as a separate essential 
feature. The final rule is consistent with the proposed rule

[[Page 41681]]

(84 FR 49214, September 19, 2019) and does not include sound as an 
essential feature for Southern Resident killer whale critical habitat. 
We will continue to consider the habitat-related effects of 
anthropogenic sound on the whales via the prey and passage essential 
features, as detailed in this section. Under the ESA, we separately 
consider effects of anthropogenic sound on individual whales (which is 
scaled up to the listed species unit) and habitat-related impacts 
(which is scaled up to the critical habitat designation). For the 
former, NMFS has an established framework and thresholds for 
considering impacts to marine mammals' hearing (specifically temporary 
or permanent hearing loss), as outlined in our ``Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing'' 
(NMFS 2018), and NMFS is also working to refine our guidance on the 
effects of anthropogenic sound on marine mammal behavior. We will 
continue to evaluate and manage direct and indirect effects (including 
consideration of noise interference with whale communication and social 
behavior) of anthropogenic sound on individual animals and the 
population relative to the jeopardy standard in ESA section 7 analyses 
and through MMPA incidental take authorizations.
    Adverse habitat-related effects may stem from the introduction of a 
chronic noise source that degrades the value of habitat by interfering 
with the sound-reliant animal's ability to gain benefits from that 
habitat (i.e., altering the conservation value of the habitat). NMFS 
does not currently have a methodology to establish quantifiable 
thresholds for determining when chronic noise reaches a level such that 
it alters the conservation value in this way. However, we can, and do, 
consider these effects qualitatively.
    In our experience evaluating effects to Southern Resident killer 
whale critical habitat in inland waters, we are able to assess adverse 
habitat-related effects of anthropogenic sound by evaluating impacts to 
the prey and passage essential features of current critical habitat for 
Southern Resident killer whales, and thus we do not consider it 
necessary to identify sound as a separate essential feature. For 
example, we evaluate whether chronic anthropogenic sound might alter 
the conservation value of habitat by reducing the availability of the 
whales' prey in a particular foraging area by reducing the effective 
echolocation space for the whales to forage or communicate, or creating 
a barrier that restricts movements through or within an area necessary 
for migration, resting, social behavior, or foraging. Thus, the prey 
and passage essential features as defined in this rule will provide a 
measure of protection from noise degradation to the extent that an 
action might cause such noise that would interfere with the whales' 
ability to use (e.g., move through as in passage or access prey) and 
successfully feed within the critical habitat (prey feature, including 
social communication for prey sharing). We will use the same approach 
for evaluating these effects in coastal critical habitat, consistent 
with our existing practice in inland waters critical habitat.
    In response to public comments requesting that the final rule 
include sound as an essential feature and emphasizing the importance of 
communication space for social behavior and pod cohesion (see Comment 8 
and response), we revised the Biological Report to clarify that the 
effects of sound on communication and social behavior are considered in 
the passage and prey features (as well as effects of sound on 
individual whales themselves via section 7, outside of critical habitat 
designation, see sections V.B.2-4, Final Biological Report, NMFS 
2021a). Additionally, we will continue to consider and address impacts 
of anthropogenic noise on the whales themselves, which would also take 
into consideration elements including communication and social behavior 
as they can relate to the health and fitness of individual whales.

Specific Areas Within the Geographical Area Occupied by the Species

    The three specific areas within the geographic area (range) 
occupied by the species identified in the 2006 critical habitat 
designation are carried forward unchanged by the critical habitat 
revision. We refer to them here as Inland Waters Areas 1-3 to 
differentiate them from the six newly designated specific coastal areas 
(Coastal Areas 1-6). In the 2006 designation, a lack of data precluded 
us from determining whether any specific areas within the coastal range 
met the definition of critical habitat. Research and data collected 
since then have allowed us to better characterize the whales' habitat 
use (NMFS 2021a). These data are now sufficient to identify specific 
areas within the whales' coastal range.
    CBD requested that we identify critical habitat in areas of the 
Pacific Ocean between Cape Flattery, Washington, and Point Reyes, 
California, extending approximately 47 mi (76 km) offshore. This 
requested area was based mainly on the extent of the whales' movements 
from NMFS' satellite tag data: Tagged animals traveled as far south as 
Point Reyes and as far offshore as 47 mi. However, the petition stated 
that because NMFS was continuing to analyze data describing the 
Southern Resident killer whales' use of coastal and offshore waters, 
the petition requested we ``refine this proposal, as necessary, to 
include additional inhabited zones or to focus specifically on areas of 
concentrated use'' (CBD 2014). To delineate specific areas, we relied 
on the satellite tag data but also incorporated information on 
sightings, acoustic data, and prey sampling. As a result, our specific 
areas differ in their boundaries from the petitioner's request. For 
example, there are documented sightings of Southern Resident killer 
whales south of Point Reyes, so the boundary of the critical habitat is 
farther south than the petitioners requested.
    We identified six specific areas off the U.S. West Coast, 
delineated based on their habitat features, including variation in the 
primary feature, and variation in predominant habitat use (for example 
foraging versus traveling) by Southern Resident killer whales. They 
encompass most (but not all) of the whales' U.S. coastal range, and 
vary in size. The ESA and our regulations provide the agency discretion 
to determine the scale at which specific areas are identified (50 CFR 
424.12; 81 FR 7413; February 11, 2016). We selected the boundaries 
between areas to reflect the spatial scale of the whales' movements and 
behavioral changes (e.g., where tagged whales were primarily traveling 
versus observed foraging), as well as to align with some existing 
fishery management boundaries (e.g., Pigeon Point and Point Sur are 
geographic points used by the PFMC in salmon management; PFMC 2016). 
Each area contains all three essential features, but the primary 
feature varies by area and the primary feature of each area is noted 
below. Identifying six areas with varying primary features, instead of 
just one comprehensive critical habitat area containing all three 
features, will assist with section 7 consultations and analyses about 
how actions would affect the conservation value of an area based on the 
primary feature. In addition, identifying six areas rather than one 
also assisted in analyzing benefits and costs in the ESA Section 
4(b)(2) Report (NMFS 2021b). More information about each area, 
including descriptions of the whales' use of the area based on 
sighting, satellite tagging, and acoustic detection data, can be found 
in the Final Biological Report (NMFS 2021a). All

[[Page 41682]]

area sizes are based on best available spatial data at the time of the 
final rule.
    Beginning at the westernmost extent of the previously designated 
Strait of Juan de Fuca critical habitat area (Inland Waters Area 3), 
the new coastal areas span the U.S. West Coast from the U.S. 
international border with Canada south to Point Sur, California, which 
is just south of the southernmost sightings of Southern Resident killer 
whales in Monterey Bay. On January 27, 2008, Southern Resident killer 
whales were sighted off Cypress Point, Carmel Bay, just south of 
Monterey Bay, traveling south (N. Black, Monterey Bay Whale Watch, Orca 
Network sightings archives). Given uncertainty in the exact extent of 
the whales' southward movements, we elected to delineate the southern 
boundary of the specific area just south of the last sighting (by 
approximately 20 mi (32.2 km)) and align the boundary with the existing 
salmon management area boundary at Point Sur, California (PFMC 2016).
    The inshore (eastern) boundary of the areas is delineated by a 
continuous line along the coast at 20-ft (6.1-m) depth relative to mean 
high water. This continuous line crosses river mouths and entrances to 
semi-enclosed bays and estuaries at the 20 ft depth contour where 
available or crossing at significant barriers (e.g., jetties). Based on 
the available data, we defined the shoreward boundary of the specific 
areas as a line along the coast at 20 ft (6.1 m) in depth relative to 
the mean high water line. Southern resident killer whales rarely occur 
in waters shallower than 20 ft (6.1 m). For example, based on data from 
four satellite-tagged Southern Resident killer whales, less than 1 
percent of the whales' outer coastal locations were in depths less than 
6 m (approximately 20 ft) (NWFSC unpubl. Data, see the Biological 
Report, NMFS 2021a) (but locations based on satellite tags are not 
exact and tidal conditions are unknown for these observations). In 
addition, there are no data from sightings or satellite tags to 
indicate that Southern Resident killer whales enter river mouths or 
semi-enclosed bays and estuaries along the coast, although data 
indicate the whales do use the open embayment of Monterey Bay in 
California. Finally, the inward boundary is consistent with the inshore 
boundary of the 2006 critical habitat designation in inland waters 
(although the inshore boundary of the coastal critical habitat is 
delineated relative to the mean high water line instead of extreme high 
water, the inshore boundary in inland waters) and the proposed rule (84 
FR 49214, September 19, 2019).
    The offshore (western) boundary of the areas is the 656.2 ft (200 
m) depth contour, or isobath. This was selected because movement data 
from satellite-tagged Southern Resident killer whales indicate that 
most coastal locations were in water depths of 200 m or less (96.5 
percent) and within 21.1 mi (34 km) from shore (95 percent) (Hanson et 
al. 2017). Additionally, the limited information available on the 
distribution of salmon in offshore waters indicates Southern Resident 
killer whale prey (an essential feature of the habitat) is present in 
waters of 200 m or less. The two areas off the coast of Washington 
share the same northern and southern boundaries but are separated 
longitudinally at the 50-m isobath, such that Coastal Area 1 ranges 
from 6.1-50 m depth while Coastal Area 2 ranges from 50-200 m depth. 
The 50-m isobath was selected to distinguish the areas because the 
majority (42 of 52, or 76.4 percent) of prey samples from observed 
Southern Resident killer whale predation events in these two areas were 
collected in water depths of 50 m or less, and just over half of the 
satellite tag locations in these two areas (54 percent) were in water 
depths of 50 m or less (NWFSC unpubl. data; Hanson et al. 2021, see the 
Biological Report, NMFS 2021a).
    The latitudinal boundaries between the specific coastal areas were 
initially selected to coincide with some of the coastal salmon 
management area boundaries as defined in the Pacific Salmon FMP and 
used for the management of salmon harvest (Chinook and Coho 
specifically) (PFMC 2016). Although the areas of highest Southern 
Resident killer whale occurrence, as indicated by a duration-of-
occurrence model from satellite tag data (Hanson et al. 2017), did not 
precisely match the salmon management areas, they generally align with 
the available information on salmonid and other fish species that may 
be prey to Southern Resident killer whales. For example, the whales' 
highest use areas occurred in the North of Falcon fishery management 
area between Cape Falcon, Oregon and the Canadian border, and 
relatively high use occurred within the Klamath Management Zone. 
Similar to inland waters, we assume that Southern Resident killer 
whales respond to regional and seasonal abundance of salmon, 
particularly Chinook salmon runs. We then adjusted some of the 
boundaries to better reflect what we know about the whales' use of the 
areas (e.g., areas where foraging has been observed and/or prey samples 
collected, versus areas where whales are considered mainly to be 
traveling through). We selected Cape Meares, Oregon, as the southern 
boundary of Areas 1 and 2 instead of Cape Falcon just to the north, 
because the Cape Meares boundary encompassed all but one of the 
observed predation events and prey sample locations off the Washington 
and Oregon coasts. We selected Cape Mendocino, California, as the 
boundary between Areas 4 and 5 instead of Horse Mountain just to the 
south because the three predation events observed in California 
occurred off the Eel River just north of Cape Mendocino, and that 
boundary better demarcated the southern extent of a higher-use area 
based on the duration-of-occurrence model of satellite-tagged whale 
movements (NMFS 2021a).
    The six specific coastal areas are:
    Coastal Area 1--Coastal Washington/Northern Oregon Inshore Area: 
U.S. marine waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. 
international border with Canada south to Cape Meares (45[deg]29'12'' 
N), between the 6.1-m and 50-m isobath contours. This area covers 
1,437.9 mi\2\ (3,724.2 km\2\) and includes waters off Clallam, 
Jefferson, Grays Harbor, and Pacific counties in Washington and Clatsop 
and Tillamook counties in Oregon. The primary essential feature of this 
area is prey.
    Coastal Area 2--Coastal Washington/Northern Oregon Offshore Area: 
U.S. marine waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. 
international border with Canada south to Cape Meares (45[deg]29'12'' 
N), between the 50-m and 200-m isobath contours. This area covers 
4,617.2 mi\2\ (11,958.6 km\2\), and as with Area 1, includes waters off 
Clallam, Jefferson, Grays Harbor, and Pacific counties in Washington 
and Clatsop and Tillamook counties in Oregon. The primary essential 
feature of this area is prey.
    Coastal Area 3--Central/Southern Oregon Coast Area: U.S. marine 
waters from Cape Meares (45[deg]29'12'' N) south to the OR/CA border 
(42[deg]00'00'' N), between the 6.1-m and 200-m isobath contours. This 
area covers 4,962.6 mi\2\ (12,853.1 km\2\) and includes waters off 
Tillamook, Lincoln, Lane, Douglas, Coos, and Curry counties in Oregon. 
The primary essential feature of this area is passage.

[[Page 41683]]

    Coastal Area 4--Northern California Coast Area: U.S. marine waters 
from the OR/CA border (42[deg]00'00'' N) south to Cape Mendocino, CA 
(40[deg]26'19'' N), between the 6.1-m and 200-m isobath contours. This 
area covers 1,606.8 mi\2\ (4,161.5 km\2\) and includes waters off Del 
Norte and Humboldt counties in California. The primary essential 
feature of this area is prey.
    Coastal Specific Area 5--North Central California Coast Area: U.S. 
marine waters from Cape Mendocino, CA (40[deg]26'19'' N) south to 
Pigeon Point, CA (37[deg]11'00'' N), between the 6.1-m and 200-m 
isobath contours. This area covers 3,976.2 mi\2\ (10,298.4 km\2\) and 
includes waters off Humboldt, Mendocino, Sonoma, Marin, San Francisco, 
and San Mateo counties in California. The primary essential feature of 
this area is passage.
    Coastal Specific Area 6--Monterey Bay Area: U.S. marine waters from 
Pigeon Point, CA (37[deg]11'00'' N) south to Point Sur, CA 
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This 
area covers 709.7 mi\2\ (1,838.2 km\2\) and includes waters off San 
Mateo, Santa Cruz, and Monterey counties in California. The primary 
essential feature of this area is prey.

Need for Special Management Considerations or Protection

    Joint NMFS and USFWS regulations at 50 CFR 424.02 define special 
management considerations or protection to mean methods or procedures 
useful in protecting physical and biological features essential to the 
conservation of listed species.
    Human activities managed under a variety of legal mandates have the 
potential to affect the habitat features essential to the conservation 
of Southern Resident killer whales, including those that could increase 
water contamination and/or chemical exposure, decrease the quantity or 
quality of prey, or could inhibit safe, unrestricted passage between 
important habitat areas to find prey and fulfill other life history 
requirements. Examples of these types of activities include (but are 
not limited to): (1) Salmon fisheries and fisheries that take salmon as 
bycatch; (2) salmon hatcheries; (3) offshore aquaculture/mariculture; 
(4) alternative energy development; (5) oil spills and response; (6) 
military activities; (7) vessel traffic; (8) dredging and dredge 
material disposal; (9) oil and gas exploration and production; (10) 
mineral mining (including sand and gravel mining); (11) geologic 
surveys (including seismic surveys); and (12) activities occurring 
adjacent to or upstream of critical habitat that may affect essential 
features, that we refer to as ``upstream'' activities (including 
activities contributing to point-source water pollution, power plant 
operations, liquefied natural gas terminals, desalinization plants). We 
identified these activities based on our ESA section 7 consultation 
history since 2006 for existing Southern Resident killer whale critical 
habitat, along with additional information that has become available 
since the original designation. This is not an exhaustive or complete 
list of potential activities; rather, these activities are of primary 
concern because of their potential effects that we are aware of at this 
time and that should be considered in accordance with section 7 of the 
ESA when Federal agencies authorize, fund, or carry out these 
activities. The ESA section 7 requirement that Federal agencies ensure 
their actions are not likely to destroy or adversely modify critical 
habitat applies not only to actions occurring within designated 
critical habitat, but also to actions occurring outside of designated 
areas which may impact the features of the critical habitat. For 
example, consultation would be required on activities that occur in 
waters shallower than 20 ft (6.1 m) or in upstream freshwater locations 
if those actions are likely to adversely affect essential habitat 
features in designated critical habitat.
    Table 1 lists the activities that may affect the essential features 
in each of the six specific coastal areas such that the essential 
features may require special management or consideration. The Final 
Biological Report (NMFS 2021a) and FEA (IEc 2021) provide a more 
detailed description of the potential effects of these activities on 
the essential features.

 Table 1--Size of Each Specific Area and Activities That May Affect the
   Essential Features and Necessitate the Need for Special Management
     Considerations or Protection Within Each Area Are Listed. Some
 Activities Occur Upstream But May Affect Features in the Specific Area
------------------------------------------------------------------------
          Specific area            Size (mi\2\) *        Activities
------------------------------------------------------------------------
1--Coastal Washington/Northern            1,437.9  FISH, HAT, SPILL,
 Oregon Inshore Area.                               MIL, VESS, DR, POLL,
                                                    PP.
2 --Coastal Washington/Northern           4,617.2  FISH, HAT, SPILL,
 Oregon Offshore Area.                              MIL, VESS, DR, POLL,
                                                    PP.
3--Central/Southern Oregon Coast          4,962.6  FISH, HAT, EN, SPILL,
 Area.                                              MIL, VESS, DR, GEO,
                                                    POLL, PP, LNG.
4--Northern California Coast Area         1,606.8  FISH, HAT, SPILL,
                                                    MIL, VESS, DR, POLL,
                                                    PP.
5--North Central California Coast         3,976.2  FISH, HAT, SPILL,
 Area.                                              MIL, VESS, DR, MIN,
                                                    POLL, PP.
6--Monterey Bay Area.............           709.7  FISH, HAT, SPILL,
                                                    VESS, DR, POLL, PP,
                                                    DESAL.
------------------------------------------------------------------------
Activities: FISH = fisheries, HAT = hatcheries, EN = alternative energy
  projects, SPILL = oil spills and response, MIL = military activities,
  VES = vessel traffic, DR = dredging and dredge material disposal, MIN
  = mineral mining, GEO = geologic surveys, POLL = point-source water
  pollution, PP = power plants, LNG = LNG terminals, DESAL =
  desalinization plants.
* Revisions to area size from proposed are based on best available
  spatial data at the time of the final rule.

Unoccupied Areas
    The ESA section 3(5)(A)(ii) definition of critical habitat includes 
unoccupied areas, which are defined as specific areas outside the 
geographical area occupied by the species at the time it is listed if 
such areas are determined to be essential to the conservation of the 
species. At the present time, we have not identified additional 
specific areas outside the geographic area occupied by Southern 
Resident killer whales that may be essential for the conservation of 
the species. We considered potential future impacts that climate change 
might have on the geographical area occupied by the whales, 
particularly with respect to shifts in distribution of their salmon 
prey. In accordance with NMFS guidance on the treatment of climate 
change in NMFS ESA decisions (NMFS 2016), we determined that there is 
insufficient evidence to identify unoccupied areas that are essential 
to the conservation of Southern resident killer whales based on 
potential impacts from climate change.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    Section 4(a)(3)(B) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or

[[Page 41684]]

controlled by DOD, or designated for its use, that are subject to an 
INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary of Commerce determines in writing that such a plan 
provides a benefit to the species for which critical habitat is being 
designated.
    DOD (Army, Navy, and Air Force) helped us identify military lands 
that may overlap with areas under consideration for critical habitat. 
The Navy identified two military installations adjacent to these areas, 
both of which have INRMPs in place for land-based installation 
activities: Pacific Beach Annex, Naval Station Everett, Washington, and 
Naval Support Activity (NSA) Monterey, California. Based on our review 
of these plans, these two shore-based military areas covered by INRMPs 
do not overlap the critical habitat areas, and thus the critical 
habitat areas are not subject to the INRMPs or ineligible for 
designation (see section III.F of the Final ESA Section 4(b)(2) Report, 
NMFS 2021b).

Application of ESA Section 4(b)(2)

    The foregoing discussion describes those areas that are eligible 
for designation as critical habitat. Specific areas eligible for 
designation are not automatically designated as critical habitat. As 
described previously, section 4(b)(2) of the ESA requires that the 
Secretary consider the economic impact, impact on national security, 
and any other relevant impacts. The Secretary may exclude an area from 
designation if he determines the benefits of exclusion outweigh the 
benefits of designation based on the best available scientific and 
commercial data. The Secretary may not exclude an area from designation 
if exclusion of that area will result in the extinction of the species.
    The first step in conducting an ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of 
the ESA defines critical habitat as ``specific areas,'' while section 
4(b)(2) of the ESA requires the agency to consider certain factors 
before designating any ``particular area.'' The ESA and regulations 
provide the agency discretion to determine the scale at which specific 
areas (50 CFR 424.12) and impacts (50 CFR 424.19) are identified. For 
this revision to the designation of Southern Resident killer whale 
critical habitat, we identified six ``specific'' areas off the coasts 
of Washington, Oregon, and California, as described above. For our 
economic impact analysis, we defined the ``particular areas'' to be 
equivalent to the ``specific areas.'' This approach and scale allowed 
us to most effectively consider the conservation value of the different 
areas when balancing conservation benefit of designation against 
economic benefits of exclusion. Where we considered impacts on national 
security or impacts on tribes, we based the ``particular areas'' on 
land ownership or control (e.g., land controlled by the DOD within 
which national security impacts may exist, or Indian lands). This 
approach and scale allowed us to consider impacts and benefits 
associated with management by the military or land ownership and 
management by Indian tribes.

Identify and Determine Impacts of Designation

    The primary impact of a critical habitat designation stems from the 
requirement under section 7(a)(2) of the ESA that Federal agencies 
ensure that their actions are not likely to result in the destruction 
or adverse modification of critical habitat. Determining this impact is 
complicated by the fact that section 7(a)(2) contains the associated 
requirement that Federal agencies must also ensure their actions are 
not likely to jeopardize the species' (in this case the DPS') continued 
existence. The true impact of this designation is the extent to which 
Federal agencies modify their actions to ensure their actions are not 
likely to destroy or adversely modify the critical habitat of the DPS, 
beyond any modifications they would make because of the DPS' listing 
and the jeopardy provision, and the associated increase in consultation 
costs. Additional, indirect impacts of designation include state and 
local protections that may be triggered as a result of the designation.
    In determining the impacts of designation, consistent with our 
regulations (50 CFR 424.19) and policy (81 FR 7226; February 11, 2016), 
we focused on identifying the incremental impacts. To determine the 
incremental impacts of the revised designation, we examined what the 
state of the world would be with and without the addition of coastal 
critical habitat for Southern Resident killer whales. The ``without the 
coastal critical habitat'' scenario represents the baseline for the 
analysis. It includes process requirements and habitat protections 
already afforded Southern Resident killer whales under their Federal 
listing or under other Federal, state, and local regulations. The 
``with coastal critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of coastal 
critical habitat for Southern Resident killer whales. The primary 
potential impacts of critical habitat designation we identified were: 
(1) The economic costs associated with additional administrative effort 
of including a coastal critical habitat analysis in section 7 
consultations for Southern Resident killer whales, (2) impacts to 
national security, and (3) the possible harm to our working 
relationship with Indian tribes and possible overlap with tribal lands 
or impacts to tribal usual and accustomed (U&A) areas.

Economic Impacts

    The FEA (IEc 2021) prepared by Industrial Economics, Incorporated 
(IEc), sought to determine the impacts on economic activities due to 
the designation of the additional critical habitat, above and beyond--
or incremental to--those ``baseline'' impacts due to existing required 
or voluntary conservation efforts being undertaken due to other 
Federal, State, and local regulations or guidelines (IEc 2021). 
Incremental impacts may include the direct costs associated with 
additional effort for section 7 consultations (including consultations 
that otherwise would have been limited to jeopardy issues, reinitiated 
consultations, or new consultations occurring specifically because of 
the designation) as well as the direct costs associated with 
conservation efforts or project modifications that would not have been 
required under the jeopardy standard. Incremental impacts may also 
include indirect impacts resulting from reaction to the potential 
designation of critical habitat and triggering of additional 
requirements under State or local laws intended to protect sensitive 
habitat.
    To quantify the economic impact of designation, the FEA (IEc 2021) 
employed the following steps:
    (1) Identify the baseline of economic activity and the statutes and 
regulations that constrain that activity in the absence of the critical 
habitat designation in the additional areas;
    (2) Identify the types of activities that are likely to be affected 
by the critical habitat designation;
    (3) Project the projects and activities identified in Step 2 over 
space and time based on the best available information on planned 
projects, permitting schedules, or average annual levels of activity;
    (4) Estimate the costs of administrative effort and, where 
applicable, conservation efforts or project modifications recommended 
for the activity to comply with the ESA's critical habitat provisions;
    (5) Apply well-accepted discounting methods to calculate the 
present value cost in each year of the analysis and sum over time to 
calculate the total

[[Page 41685]]

present value and annualized impacts; and
    (6) Aggregate the costs at the particular area level. (Impacts are 
reported at the particular area level; particular areas for the 
analysis are the same as the six specific areas.)
    The first step in the analysis was to identify the baseline level 
of protection already afforded Southern Resident killer whales in the 
additional areas being proposed as critical habitat. The baseline for 
this analysis is the existing state of regulation prior to the revision 
of critical habitat, including the listing of the species under the ESA 
(and protections under ESA sections 7, 9, and 10); ESA protections for 
listed salmon given that salmon are included as part of the prey 
essential feature of critical habitat for the whales; protections due 
to other co-occurring ESA listings and critical habitat designations, 
such as those for the Southern DPS of North American green sturgeon (50 
CFR 226.219) and leatherback sea turtles (50 CFR 226.207); and other 
Federal, state and local laws and guidelines, such as the MMPA, Clean 
Water Act, and state environmental quality laws (IEc 2021).
    In step 2, the NMFS West Coast Region's record of section 7 
consultations and NMFS' experience and professional judgment in 
conducting section 7 consultations were used to identify Federal 
activities that occur within the areas being considered for Southern 
Resident killer whale critical habitat and that may affect the critical 
habitat features. Activities occurring adjacent to or upstream of those 
areas that may affect the water quality and prey availability essential 
features within the critical habitat areas were also identified. These 
activities included salmon fisheries and other fisheries that have 
incidental bycatch of salmon, salmon hatcheries, offshore aquaculture/
mariculture, alternative energy development, oil spills and response, 
military activities, vessel traffic, dredging and dredge material 
disposal, oil and gas exploration and production, geologic surveys 
(including seismic surveys), activities contributing to point-source 
water pollution, power plant operations, liquefied natural gas 
terminals, and desalinization plants. The FEA (IEc 2021) assumes that 
future occurrences of these activities within or affecting critical 
habitat for the whales will result in consultation. The identification 
of these activities and the associated threats are further discussed in 
the Final Biological Report (NMFS 2021a) and the FEA (IEc 2021).
    In steps 3 and 4, the incremental administrative costs of including 
analysis of Southern Resident killer whale coastal critical habitat in 
future section 7 consultations were estimated. The occurrence of the 
projects and activities identified in step 2 and the estimated number 
and type of consultations were projected over space and time using the 
best available information on planned projects, permitting schedules, 
or average annual level of activities from NMFS' consultation history 
for 2006-2016 and other information sources (e.g., USACE permit and 
project data, and interviews with Federal action agencies). The 
administrative costs of a given consultation vary depending on the type 
(i.e., informal, formal, programmatic) and specifics of the project, 
and it may not be possible to predict the level of effort required for 
each future consultation. The analysis accordingly employed estimated 
average incremental administrative costs per consultation, which were 
based on the expected amount of time spent considering adverse 
modification as part of future section 7 consultations.
    As described in Chapter 2 of the FEA (IEc 2021), there are no 
particular projects or activities for which NMFS considers it likely 
that section 7 consultation on coastal critical habitat for the killer 
whales would result in different conservation efforts than section 7 
consultation without coastal critical habitat. This analysis refers to 
``conservation efforts'' as a generic term for recommendations NMFS may 
make to modify projects or activities for the benefit of Southern 
Resident killer whales and/or their habitat, required actions to 
minimize impacts, or other efforts that action agencies or other 
entities may otherwise undertake to avoid adverse effects of projects 
or activities on Southern Resident killer whales and/or their habitat.
    We regularly consult on the types of activities relevant to this 
analysis to consider the potential for jeopardy to the listed killer 
whales, their listed prey, and other listed species with overlapping 
ranges, as well as to consider the potential for adverse modification 
to the critical habitat of other listed species, and we include 
conservation efforts accordingly. This includes considerations of 
critical habitat for other listed species which have similar essential 
features as Southern Resident killer whale critical habitat. For 
example, the Southern DPS of North American green sturgeon, for which 
the essential features within nearshore coastal marine critical habitat 
include, among others, a migratory corridor within marine habitat and 
water quality with acceptably low levels of contaminants. We anticipate 
that it is most likely that these baseline conservation efforts would 
involve measures that would avoid adverse modification of Southern 
Resident killer whale critical habitat because they directly or 
indirectly address impacts to the essential features of the whales' 
critical habitat (water quality, prey, and passage).
    In steps 5 and 6, well-accepted discounting methods were used to 
calculate the present value cost in each year of the analysis, summed 
over time to calculate the total present value and annualized impact, 
and then aggregated at the particular area level. As noted above, for 
the economic analysis, ``particular areas'' were defined to be 
equivalent to the six ``specific areas'' occupied by Southern Resident 
killer whales off the coasts of Washington, Oregon, and California. 
However, due to the difficulty in determining precise locations of 
future consultations occurring in Areas 1 and 2 off the coast of 
Washington (because assignment of the consultation to Area 1 or 2 would 
require specific information about the activity such as its latitude/
longitude or depth), the FEA (IEc 2021) presents economic impacts 
collectively for these two areas.
    Additionally, administrative costs of consultations on upstream 
activities were not assigned to a particular critical habitat area as 
there is no information available to inform the connection between the 
particular locations of upstream activities with the downstream effects 
on particular critical habitat areas. Accordingly, the incremental 
economic impacts associated with consultations on upstream activities 
do not reflect the economic impact of designating any given area, but 
rather the expanded critical habitat as a whole.
    The FEA (IEc 2021) estimates the total present value of the 
quantified incremental impacts to be approximately $710,000 over the 
next 10 years, assuming a 7 percent discount rate. Total annualized 
impacts are estimated to be $80,000. The increase in costs between the 
DEA (IEc 2019) that accompanied the proposed rule and the FEA (IEc 
2021) that supports this final rule reflects updates to the timeframe 
of the analysis and the dollar year, as opposed to changes in the costs 
of consultations. The evaluation of costs associated with each 
particular area is complicated by the fact that many activities and 
consultations span more than one area, and because costs to Areas 1 and 
2 could not be estimated separately. However, annualized impacts from 
projects occurring in only one area (or two in the case of Areas 1

[[Page 41686]]

and 2) ranged from a low of $1,300 for area 6 to $10,000 for Areas 1/2. 
Over 40 percent of estimated impacts occur upstream (or outside of) of 
critical habitat areas. The largest share of estimated present value 
economic impacts are associated with dredging and in-water construction 
and ``other'' activities (see IEc 2021 for more details).

National Security Impacts

    During preparations for the proposed revision to Southern Resident 
killer whale critical habitat, we provided DOD (Navy, Army, and Air 
Force) with information regarding the areas under consideration for 
Southern Resident killer whale critical habitat, and requested they 
identify any impacts to national security that might arise from the 
proposed designation of critical habitat. In addition, we considered 
information regarding potential national security impacts provided by 
the USCG (Department of Homeland Security) in their response to our 90-
day finding on the petition to revise critical habitat.
    The Army did not provide a response. The Air Force stated that it 
had not identified any significant concerns with the proposed revision 
of Southern Resident killer whale critical habitat to include coastal 
waters along the U.S. West Coast. The Navy stated that it conducts 
training and testing activities, collectively referred to as ``military 
readiness activities,'' within the coastal areas being considered for 
designation as critical habitat. Specifically, military readiness 
activities occur in the offshore Pacific Northwest Ocean Surface/
Subsurface Operating Area (OPAREA), Warning Area 237 (W-237), and the 
Olympic A and B Military Operation Areas (MOA), which are all 
considered at-sea components of the Northwest Training Range Complex 
(NWTRC), as well as in the QRS, which is a component of the Keyport 
Range Complex. The Navy refers to all the at-sea areas used for 
training and testing as the Northwest Training and Testing (NWTT) study 
area. The Navy believes there would be national security impacts where 
specific coastal areas 1 and 2 proposed for designation overlap with 
the QRS. The Navy requested exclusion of the QRS (including its 
associated surf zone off the coast of Pacific Beach, Washington) from 
the proposed critical habitat based on national security impacts 
arising from additional mitigation requirements that have the potential 
to impact the effectiveness of ongoing and future testing activities 
(NMFS 2021b). During the pre-publication inter-agency review process 
for the proposed rule (84 FR 49214, September 19, 2019), the Navy also 
requested exclusion of a 10-km (6.2-mi) buffer around the QRS. The Navy 
stated that they used site-specific oceanographic conditions and the 
best available science establishing fish injury thresholds (Popper et 
al. 2014) to determine that sound and energy levels from the largest 
explosives that could be used in the QRS may cause injuries to fish 
(i.e., prey species) out to 10 km beyond the boundary of the QRS. If 
the QRS alone were excluded (without the buffer), the largest 
explosives in the QRS may affect the prey feature within proposed 
critical habitat (in the buffer area). The Navy argued that there would 
be national security impacts if NMFS required additional mitigation 
that resulted in the Navy having to halt, reduce in scope, or 
geographically/seasonally constrain testing activities to prevent 
adverse effects or adverse modification of critical habitat.
    The USCG also provided information on potential impacts to national 
security and maritime safety. The USCG stated that expanded critical 
habitat might impair its ability to safely conduct defense readiness 
and additional missions if the designation results in restrictions to 
the ability of USCG maritime assets to transit, deploy, train, and/or 
conduct gunnery exercises within the critical habitat areas. These 
additional missions include emergency response, search and rescue, law 
enforcement, conservation activities, and training operations. With 
respect to gunnery exercises, it noted that USCG Section/Station/
Maritime Force Protection Unit boats are limited to going a maximum of 
10 to 50 mi (16-80.5 km) offshore depending on vessel type, and 
requiring them to go over 50 mi would be unsafe and provide unrealistic 
training/gunnery scenarios to effectively become proficient with 
meeting mission objectives. In general, USCG Sector/Station assets 
conduct gunnery exercises with small arms and ammunition, pistols, and 
up to .50 caliber machine guns. Major afloat cutters conduct exercises 
with small arms and ammunition, in addition to more sophisticated 
systems (i.e., 25 millimeter (mm), 57 mm, and 76 mm guns, close-in 
weapon systems), but rarely conduct exercises in the areas under 
consideration for critical habitat, with the exception of the NWTRC.
    Although we have not conducted a section 7 analysis on a particular 
proposed action and we are not predetermining any future ESA 
conclusions now, as a general matter, and based on the information 
currently available, we consider it unlikely that the USCG's routine 
operations in support of emergency response, homeland security, law 
enforcement, and conservation affect the essential features of Southern 
Resident killer whale critical habitat, and, as such, we do not expect 
designation of critical habitat will have a national security impact on 
these activities. Separately, we consider the USCG's concerns regarding 
potential national security impacts to their defense readiness 
activities to be generally overlapping with those of the Navy, given 
the similarities in some of the USCG's activities (i.e., gunnery 
exercises involving small- and large-caliber projectiles, similar to 
the Navy's surface-to-surface gunnery exercises) and area of operations 
(i.e., generally the NWTRC). The USCG does not use these types of 
explosives in their defense readiness activities, and thus we consider 
it unlikely that the USCG would have national security concerns beyond 
those conveyed by the Navy.
    As documented in our Final ESA Section 4(b)(2) Report (NMFS 2021b), 
we assessed several factors to evaluate the potential impacts of 
designating critical habitat within the QRS and a 10-km buffer around 
it, such as the size and percentage of the QRS and buffer that would be 
designated; the importance of the area to the Navy mission and military 
readiness; the likelihood that Navy activities would destroy or 
adversely modify critical habitat and that NMFS would require project 
modification to avoid adverse effects or modification of critical 
habitat, thus potentially negatively impacting the effectiveness of the 
Navy's training and testing activities); the level of protection 
provided to one or more essential features by existing DOD safeguards 
(e.g., management or protection already in place); and the likelihood 
that other Federal actions may occur in the site that would no longer 
be subject to the critical habitat provision if the particular area 
were excluded from the designation.

Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from other entities that interact with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian tribes and with respect 
to Indian lands, tribal trust resources, and the exercise of tribal 
rights. Pursuant to

[[Page 41687]]

these authorities, lands have been retained by Indian tribes or have 
been set aside for tribal use. These lands are managed by Indian tribes 
in accordance with tribal goals and objectives within the framework of 
applicable treaties and laws. Executive Order (E.O.) 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the responsibilities of the Federal Government in matters affecting 
tribal interests.
    There is a broad array of activities on Indian lands that may 
trigger ESA section 7 consultations. Indian lands are those defined in 
the Secretarial Order American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the ESA (June 5, 1997), including: (1) 
Lands held in trust by the United States for the benefit of any Indian 
tribe; (2) land held in trust by the United States for any Indian tribe 
or individual subject to restrictions by the United States against 
alienation; (3) fee lands, either within or outside the reservation 
boundaries, owned by the tribal government; and (4) fee lands within 
the reservation boundaries owned by individual Indians.
    In developing the proposed rule, we reviewed maps and did not 
identify any areas under consideration as coastal critical habitat that 
overlap with Indian lands, because the shoreward extent of the areas 
under consideration for designation is 20 ft (6.1 m) water depth. Based 
on this, we preliminarily found that there were no Indian lands subject 
to consideration for possible exclusion. However, our preliminary 
assessment indicated that the following federally recognized tribes (83 
FR 4235; January 30, 2018) have lands that may be in close proximity to 
areas under consideration for designation as critical habitat for 
Southern Resident killer whales, have usual and accustomed (U&A) 
fishing areas that overlap with critical habitat areas, or may 
otherwise be affected: Confederated Tribes of the Chehalis Reservation, 
Hoh Indian Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian 
Nation, and Shoalwater Bay Indian Tribe in Washington; Confederated 
Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Confederated Tribes 
of the Siletz Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae 
Heights Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, 
Karuk Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation, 
Wiyot Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California as a tribal 
entity that may be affected by critical habitat designation.
    We contacted each of these tribes to solicit comments regarding 
Indian lands that may overlap and may warrant exclusion from critical 
habitat for Southern Resident killer whales. We also sought information 
from these tribes concerning other tribal activities that may be 
affected in areas other than tribal lands (e.g., tribal fisheries in 
usual and accustomed coastal marine areas).
    We received responses from two tribes in Washington and California. 
The tribes were primarily concerned with the potential impact of the 
critical habitat designation on tribal fisheries, particularly within 
U&A fishing areas located in coastal marine waters. As described in the 
DEA and FEA (IEc 2019, 2021) while it is possible that the critical 
habitat designation could result in recommendations for changes in 
fishery management, we consider this unlikely, given the existing 
consideration of fisheries' impacts on Southern Resident killer whales 
and their prey (including ESA-listed salmon) in ESA section 7 
consultations in the jeopardy analysis and the implementation of 
management strategies and actions for the conservation and recovery of 
these species (IEc 2019, 2021). However, we will continue to coordinate 
and consult with potentially affected tribes throughout the rulemaking 
process.

Exclusion of Areas Under Section 4(b)(2) of the ESA

    As stated previously, the Secretary may exclude an area from 
designation if he determines the benefits of exclusion outweigh the 
benefits of designation based on the best available scientific and 
commercial data. This discretion is limited, however, in that the 
Secretary may not exclude an area from designation if exclusion will 
result in the extinction of the species (ESA section 4(b)(2)).
    We decided to exercise the discretion delegated to us by the 
Secretary to conduct an exclusion analysis and balance the benefits of 
designation against the benefits of exclusion. Benefits of critical 
habitat designation are those conservation benefits to the species, 
while benefits of exclusion result from avoiding the impacts of 
designation identified above. Below we describe the benefits of 
designation, then further consider and weigh the benefits of 
designation and exclusion based on economic and national security 
impacts. (As discussed above, we preliminarily found that there were no 
Indian lands subject to consideration for possible exclusion). We have 
broad discretion as to which factors to consider as benefits of 
designation and benefits of exclusion, and what weight to assign to 
each factor--nothing in the ESA, its implementing regulations, or our 
Policy Regarding Implementation of Section 4(b)(2) of the ESA 
(``4(b)(2) Policy'') limits this discretion (50 CFR 424.19; 81 FR 7226, 
February 11, 2016). We also relied on a qualitative cost-benefit 
analysis, as described in Office of Management and Budget (OMB) 
Circular A-4.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to ensure their 
actions are not likely to destroy or adversely modify designated 
critical habitat. This is in addition to the requirement that all 
Federal agencies ensure their actions are not likely to jeopardize the 
continued existence of the species. The revision to the critical 
habitat designation is also expected to provide benefits by informing 
the entities engaged in section 7 consultations and the general public 
about the status of Southern Resident killer whales, including the 
coastal areas and features (or habitat) important to whales' 
conservation.
    Other forms of benefits that may be attributed to the conservation 
and recovery of Southern Resident killer whales (although not 
specifically attributed to the designation of critical habitat), 
include use benefits (e.g., for wildlife viewing), non-use or passive 
use benefits (e.g., existence, option, and bequest values), and 
ancillary ecosystem service benefits (e.g., water quality improvements 
and enhanced habitat conditions for other marine and coastal species). 
Some species, including Southern Resident killer whales, also have 
significant spiritual and cultural value to particular communities, 
such as tribes. Such values are generally not expressed in monetary 
terms.
    These benefits are not directly comparable to the costs of 
designation for purposes of conducting the section 4(b)(2) analysis. 
Ideally, benefits and costs should be compared on equal terms in the 
same units. However, there is insufficient information regarding the 
extent of the benefits and the associated values to monetize all of 
these benefits. Because we could not quantify or monetize all of the 
benefits of revising the critical habitat designation for Southern 
Resident killer whale discussed above, we qualitatively described the 
conservation value of the areas to the DPS.
    As discussed in Appendix B of the Final ESA Section 4(b)(2) Report 
(NMFS 2021b), we considered categories of information to characterize 
Southern

[[Page 41688]]

Resident killer whales' relative use of the particular areas and the 
importance of physical and biological features in the areas. However, 
gaps in or limitations of existing data made an evaluation across all 
of the areas using any sort of quantitative scoring system challenging. 
For example, the proportion of prey samples collected from each area 
might be used to characterize the areas' relative importance for 
foraging, where a higher proportion of samples might indicate greater 
foraging or prey resources. However, nearly all (93 percent) of the 
prey samples were collected during field efforts directed by the 
locations of satellite-tagged whales, and satellite-tagged whales did 
not go into Area 6, so this metric would underestimate the conservation 
value of Area 6. (Predation has been observed but not sampled in Area 
6; Black et al. 2001). Any spatial bias in NMFS' and partners' ability 
to conduct on-water response in particular locations to collect prey 
samples would also limit the usefulness of this factor for comparing 
relative importance of the critical habitat areas. Another potential 
metric we considered was the proportion of confirmed opportunistic 
sightings of Southern Resident killer whales observed in the area, or 
number of sightings per unit area. However, while opportunistic 
sightings data provide information on when and where whales occur along 
the coast, they are less useful for informing a relative ranking of the 
whales' use of the specific areas due to their spatial bias (e.g., 
sightings may be influenced by locations of population centers or whale 
watching operations). Therefore, we determined that the most 
appropriate approach was to qualitatively assess the conservation value 
of each area using the available data, mindful of the spatial and 
temporal gaps and potential biases.
    Based on the available information on the whales' use of the areas 
(and considering gaps in information), and the physical and biological 
features essential to the whales' conservation, we considered the 
conservation value of each coastal area to be high. However, we 
considered the value of Areas 1 and 2 to be very high relative to the 
other coastal areas, given the whales' particularly high use of 
portions of the areas, as indicated by models of satellite tag data 
(they are the only coastal critical habitat areas with usage in some 
locations that is more than two and three standard deviations above the 
mean), acoustic data indicating higher rates of detections than would 
be expected based on monitoring effort (Hanson et al. 2013), the 
documented use by all three pods, year-round use of the areas, and 
observations of foraging with a substantial number of prey samples 
collected in portions of the areas.

Weighing Economic Impacts

    The FEA (IEc 2021) concluded that costs attributed to the revision 
of the Southern Resident killer whale critical habitat designation are 
largely administrative in nature and that a majority of those costs are 
borne by Federal agencies. Only a small cost of consultation (total 
annualized impacts of $9,000, discounted at 7 percent) are estimated to 
be borne by a small number (1-8) of non-Federal small entities 
(businesses or governments).
    In accordance with section 4(b)(2) of the ESA, its implementing 
regulations (50 CFR 424.19) and the 4(b)(2) Policy (81 FR 7226; 
February 11, 2016), in evaluating the exclusion of areas based on 
probable economic impacts, we considered the nature of those impacts 
and not a particular threshold level. Additionally, we considered the 
following factors:
    (1) Section 2 of the ESA provides that a purpose of the act is to 
provide a means whereby the ecosystems upon which endangered species 
and threatened species depend may be conserved.
    (2) In listing Southern Resident killer whales under the ESA, we 
concluded that the current and threatened destruction or adverse 
modification of the species' habitat is likely contributing to 
fluctuations in abundance and exacerbating the risk of extinction 
naturally faced by a small population (70 FR 69903, November 18, 2005). 
We identified contaminants, vessel traffic, and changes in prey 
availability as factors that have modified the whales' habitat and 
considered them to be threats to the species.
    (3) As described above, the six particular areas under 
consideration for critical habitat designation are all of high or very 
high conservation value.
    (4) The economic impacts to Federal agencies and non-Federal 
entities of designating each of the six particular areas are small (the 
largest annualized impacts are $10,000 in Areas 1 and 2 combined), as 
is the annualized economic impact of designating the entire area 
($80,000). The potential economic impacts borne by non-Federal entities 
of designating all six areas are even smaller (total annualized impacts 
of $9,000 over the next 10 years, discounted at 7 percent), with one to 
eight non-Federal entities expected to be affected. This reflects 
approximately six consultations per year that may involve non-Federal 
entities, for example, businesses engaged coastal and in-water 
construction activities, renewable energy developments, or seismic 
surveys.
    For these reasons, we conclude that the economic benefit of 
excluding any of the particular areas does not outweigh the 
conservation benefit of designation. Therefore, none of the areas are 
excluded based on economic impacts.

Weighing Impacts to National Security and Exclusion

    As described above, we consulted with the DOD regarding the 
activities taking place at sites managed by DOD and the potential 
impact of designating critical habitat at these sites. A reply from the 
Air Force (AF) stated: ``At this time the AF has not identified any 
significant concerns with the proposed addition of Southern Resident 
killer whale critical habitat to coastal waters along the U.S. West 
Coast as depicted on the provided map.'' The Navy stated that it 
believes there would be national security impacts where critical 
habitat coastal areas 1 and 2 overlap the QRS, including its associated 
surf zone off the coast of Pacific Beach, Washington, and a 10-km 
buffer around it, and requested exclusion of this particular area from 
critical habitat. The Navy provided information on testing activities 
proposed in the QRS beyond 2020 and into the foreseeable future, and 
identified national security concerns regarding potential impacts to 
their national mission and ongoing and future Navy testing activities 
if critical habitat were designated there or within a 10-km buffer 
around the QRS.
    We weighed the conservation benefits of designation to Southern 
Resident killer whales against the benefits of exclusion for the 
combined area of the QRS and a 10-km buffer around it. We considered 
various factors relevant to assessing the benefits of exclusion 
including:
    (1) The size of the DOD site, the percentage of the DOD site that 
would be designated (because only a portion of the DOD site is within 
critical habitat), and the percentage of the proposed specific area(s) 
that overlaps with the DOD site (because the DOD site overlaps with 
only a portion of the critical habitat area(s));
    (2) The importance of the area to the Navy's national mission 
(e.g., frequency/intensity of use, complexity of Navy actions within 
it, and significance and uniqueness of the site to the overall Navy 
mission);
    (3) The likelihood of an ESA section 7 consultation with the DOD in 
this site;

[[Page 41689]]

    (4) The likelihood that DOD activities would destroy or adversely 
modify critical habitat; based on the DOD's activities at the site, and 
that NMFS would require project modifications to reduce or avoid these 
impacts;
    (5) The level of protection provided to one or more essential 
feature by existing DOD safeguards (e.g., management or protection 
already in place); and
    (6) The likelihood that other Federal actions may occur in the site 
that would no longer be subject to the critical habitat provision if 
the particular area were excluded from the designation.
    Depending on available information, each of these factors may weigh 
either in favor of exclusion of the area or in favor of designation of 
the area. We give great weight to the national security and defense 
missions (81 FR 7226; February 11, 2016). We weighed this information 
against the benefits of designating the site, which was based on the 
conservation value rating for the specific area(s) overlapping the DOD 
site, as well as more specific information regarding Southern Resident 
killer whale use of the DOD site. As documented in the Draft ESA 
Section 4(b)(2) Report (NMFS 2019b), based on the great weight afforded 
military impacts, the unique training in support of military readiness 
that occurs within the QRS, and the potential delay in critical 
missions in order to complete adverse modification analyses, in the 
proposed rule (84 FR 49214, September 19, 2019) we found that the 
national security impacts tip the scale and outweigh the limited impact 
to conservation values in just over one-fourth of the identified 
critical habitat Areas 1 and 2 where those areas overlap with the QRS 
and a 10-km buffer around it. We determined that the benefit to 
national security of excluding this particular area outweighed the 
conservation benefit of designation, and exclusion of the area would 
not result in extinction of the species (DPS). Therefore, we proposed 
excluding the QRS and a 10-km buffer around it from the critical 
habitat designation. The total area proposed for exclusion was 1,687.9 
mi\2\ (4,371.5 km\2\) or 9.7 percent of potential coastal critical 
habitat.
    As described above, we received many public comments on the 
proposed rule (84 FR 49214, September 19, 2019) opposing the exclusion 
because it would allow the Navy to conduct activities such as sonar and 
testing of explosives in the excluded area without considering effects 
to critical habitat. Comments also noted that part of the QRS overlaps 
with the OCNMS.
    As discussed in the Final ESA Section 4(b)(2) Report (NMFS 2021b), 
to weigh the national security impacts against conservation benefits of 
a potential critical habitat designation, we considered the size of the 
requested exclusion and the amount of overlap with the specific 
critical habitat area; the relative conservation value of the specific 
area for the Southern Resident killer whale; the importance of the site 
to the Navy mission and military readiness; the likelihood that the 
Navy's activities would destroy or adversely modify critical habitat, 
and the likelihood that NMFS would require project modifications to 
reduce or avoid these impacts; and, the likelihood that other Federal 
actions may occur in the site that would no longer be subject to the 
critical habitat provision if the particular area were excluded from 
the designation. In response to the public comments, we reconsidered 
these factors, information provided by the Navy, and requested 
additional information from the Navy regarding its activities in the 
portion of the QRS that also falls within the OCNMS.
    The QRS and proposed 10-km buffer comprise about 39 percent of Area 
1 (Coastal Washington/Northern Oregon Inshore) and about 25 percent of 
Area 2 (Coastal Washington/Northern Oregon Offshore), and about 28 
percent of Areas 1 and 2 combined, but a very small portion of the 
total critical habitat designations for the Southern Resident killer 
whale (8.5 percent). The QRS and associated buffer also have a 
significant degree of overlap with the OCNMS, where certain activities 
are prohibited or not authorized, including oil, gas, or mineral 
exploration, development, or production; discharging or depositing any 
material or other matter; drilling into, dredging, or otherwise 
altering the seabed, with some exceptions (15 CFR 922.152). Because of 
these prohibitions, the likelihood of other Federal activities being 
proposed in this area of the QRS may be limited.
    In support of its request for exclusion of this particular area, 
the Navy pointed to the extensive range of planned activities, which 
are described in its Final Northwest Training and Testing (NWTT) 
Supplemental Environmental Impact Statement (SEIS) published on 
September 18, 2020, and stated that any additional, future 
modifications to these activities to minimize impacts on Southern 
Resident killer whale critical habitat would impact the Navy's ability 
to meet mission requirements. The Navy pointed to the use of 
explosives, in particular, as being likely to have adverse effects on 
killer whale prey, although not likely at the population level for 
salmon prey. In its initial request, dated December 5, 2018, the Navy 
stated that if additional mitigation requirements result in having to 
halt, reduce in scope, or geographically or seasonally constrain 
testing activities to prevent adverse effects to critical habitat, this 
would in turn impact their ability to test and field new systems and 
platforms. To avoid potential, additional, spatial restrictions on 
their activities within the QRS, the Navy also requested exclusion of 
an additional 10-km buffer around the QRS from the critical habitat 
designation. The Navy determined the size for this buffer using sound 
attenuation modeling to calculate the farthest distance at which fish 
would be expected to be injured from the largest explosive the Navy can 
reasonably foresee testing in the QRS; and, in subsequent 
communications, the Navy further clarified that the size of the buffer 
also incorporated uncertainty for updates in resource-related science, 
changes in oceanographic conditions that could reduce attenuation, and 
the evolution of military technologies that may behave differently in 
the environment. This buffer was then added to the QRS boundaries that 
overlapped with the Southern Resident killer whale critical habitat.
    We continue to find that the Navy has provided a reasonably 
specific justification to support the requested exclusion of the QRS, 
and consistent with our Section 4(b)(2) Policy (81 FR 7226, February 
11, 2016), we gave great weight to these concerns when analyzing the 
benefits of exclusion. Our consideration of the multiple factors 
discussed, coupled with the potential delay in critical missions in 
order to complete adverse modification analyses, caused us to continue 
to find that the benefits of excluding the QRS due to national security 
impacts outweigh the benefits of designating this portion of Areas 1 
and 2 as critical habitat for the Southern Resident killer whales. 
However, we are modifying our proposed exclusion of the buffer area. 
Specifically, we are not excluding a portion of the 10 km buffer area 
around the northeast corner of the QRS, extending along the East side 
of the QRS, where it overlaps with the OCNMS. As detailed in the 
Section 4(b)(2) Report (NMFS 2021b), we concluded the benefits of 
designating critical habitat for the Southern Resident killer whales 
within this portion of the buffer are not outweighed by national 
security impacts of including that portion at this time.
    The Navy does not currently use or currently plan to use explosives 
in the northeast corner of the QRS extending along the East side of the 
QRS, where it overlaps with the OCNMS; therefore,

[[Page 41690]]

potential impacts to the Southern Resident killer whale critical 
habitat are unlikely to extend into the OCNMS. The Navy provided 
additional information to NMFS clarifying the impact to national 
security should the full 10 km buffer around the QRS not be excluded 
from designation as critical habitat. The Navy noted that the current 
limitation on conducting underwater explosives in this portion of the 
QRS is based on mitigation measures the Navy proposed in its NWTT SEIS 
(September 2020) and associated ESA and MMPA compliance documentation, 
which preclude the use of all underwater explosives for training and 
testing within 50 nmi from shore, with the exception of mine 
countermeasures neutralization activities which occur in the QRS where 
it does not overlap with the OCNMS. The Navy concluded it was 
practicable to implement this restriction; however, all Navy mitigation 
measures allow for deviations (in consultation with NMFS) if driven by 
new and immediate national security requirements. Further, the Navy 
reviews its mitigation measures annually and can modify those 
mitigation measures as driven by evolving military readiness 
requirements, also in consultation with NMFS. The Navy stated that 
because techniques and tactics needed for national security can rapidly 
evolve, it is possible that modifications to current activities and the 
development of new technologies will require testing in areas that may 
not be currently utilized for underwater explosives.
    Furthermore, the portion of the buffer that extends beyond 10 km 
into the OCNMS, which we are not excluding, comprises an area of very 
high conservation value to the whales. As described in the Final ESA 
section 4(b)(2) Report, we considered the conservation value of Areas 1 
and 2 to be very high relative to the other coastal areas, given the 
whales' high use of portions of the areas particularly for foraging, 
the documented use by all three pods, and year-round use of the areas 
(NMFS 2021b). Not excluding this portion of the buffer also creates a 
corridor of critical habitat between the coastline and the eastern 
boundary of the QRS for most of the length of the QRS exclusion, which 
supports whale passage between critical habitat areas to the north and 
south of the QRS exclusion. Given the very high conservation value of 
this area for the whales, though there are national security impacts as 
described by the Navy, we found that the benefits of excluding this 
portion of the buffer due to national security impacts did not outweigh 
the conservation benefits of designating this area (e.g., see Appendix 
A Figure 4, Section 4(b)(2) Report, NMFS 2021b) as critical habitat for 
the Southern Resident killer whales. NMFS notes that should the Navy's 
requirements change in such a manner that materially affects how it 
will conduct activities within the QRS, the Navy will provide NMFS with 
an updated explanation of impacts to national security and NMFS will 
reconsider whether those impacts outweigh the benefits of retaining a 
portion of the 10 km buffer areas as critical habitat.
    With this reduction in extent of the 10 km buffer within OCNMS, the 
total area of exclusion in the final rule is 1,400.4 mi\2\ (3,627 
km\2\) or 8.1 percent of potential coastal critical habitat. This final 
excluded area comprises 24.4 percent and 22.7 percent of areas 1 and 2 
each, respectively, but generally not in portions of areas 1 and 2 that 
have the highest use by Southern Resident killer whales.

Final Revised Critical Habitat Designation

    We are designating approximately 15,910 mi\2\ (41,207 km\2\) of 
marine habitat within the area occupied by Southern Resident killer 
whales along the coasts of Washington, Oregon, and California. Combined 
with the currently designated critical habitat in inland waters of 
Washington (2,560 mi\2\ (6,630 km\2\)), the total designation comprises 
approximately 18,470 mi\2\ (47,837 km\2\). In both the currently 
designated and new critical habitat, areas with water less than 20 ft 
(6.1 m) deep are not included as critical habitat. As described in the 
preamble to the final rule designating critical habitat in inland 
waters (71 FR 69054; November 29, 2006), due to a lack of bathymetry 
data, we were not able to subtract the shallow areas from the estimate 
of the inland critical habitat area, so the estimated area of this 
portion of the critical habitat is an overestimate. However, high-
quality shoreline and bathymetry data were available for the outer 
coastal areas, so we were able to interpolate a 20-ft depth contour as 
the inshore boundary and include only the designated areas in the 
coastal area calculations. However, the coastal shoreline product we 
used to delineate the coastal areas, NOAA's Continually Updated 
Shoreline Product, uses mean high water as the vertical datum (the 
surface of zero elevation to which heights are referenced), so the 
inshore boundary of coastal critical habitat is 20 ft of water depth 
relative to mean high water and, therefore, our estimates of area are 
more accurate. This is in contrast to the inshore boundary for critical 
habitat in inland waters, which uses 20 ft water depth relative to 
extreme high water, which overestimates total area.
    The designated areas are occupied and contain physical or 
biological features that are essential to the conservation of the 
species and that may require special management considerations or 
protection. The Navy's QRS and a modified 10-km buffer around it is not 
included in the designation (and is not included in the area 
calculations above) because we determined the benefits to national 
security of exclusion (that is, avoiding the impact that would result 
from designation) outweigh the benefits of designation. We determined 
that the economic benefits of excluding any of the areas do not 
outweigh the benefits of designation. Therefore, we are not excluding 
any areas based on economic impacts. Section 4(b)(2) does not allow the 
agency to exclude areas if exclusion will result in extinction of the 
species. We are excluding only a small percentage of the whales' 
habitat (8.1 percent of coastal habitat; 7.0 percent of coastal and 
inland habitat combined) because of impacts to national security. The 
exclusion does represent a larger portion of the two specific critical 
habitat areas off the coast of Washington (around 23-24 percent of each 
of these two coastal areas), which are considered high-use and 
important foraging areas for Southern Resident killer whales. But, the 
highest use areas for foraging are just south of the QRS, and only a 
small portion of the highest use areas are within the 10-km buffer or 
the QRS. Given the small percentage of total coastal habitat and that 
most of the highest use by Southern Resident of Washington areas is not 
in the QRS, we conclude that the exclusion of these areas will not 
result in extinction of the Southern Resident killer whale DPS. No 
unoccupied areas are included in this designation.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure that any action authorized, funded or carried out by 
the agency (agency action) is not likely to jeopardize the continued 
existence of any threatened or endangered species or destroy or 
adversely modify designated critical habitat. When a species is listed 
or critical habitat is designated, Federal agencies must consult with 
us on any agency action that may affect the listed species or its 
critical habitat. During the consultation, we evaluate the agency

[[Page 41691]]

action to determine whether the action may adversely affect listed 
species or critical habitat and issue our findings in a biological 
opinion. If we conclude in the biological opinion that the agency 
action would likely result in the destruction or adverse modification 
of critical habitat, we would also recommend any reasonable and prudent 
alternatives to the action. Reasonable and prudent alternatives are 
defined in 50 CFR 402.02 as alternative actions identified during 
formal consultation that can be implemented in a manner consistent with 
the intended purpose of the action, that are consistent with the scope 
of the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that would avoid the 
destruction or adverse modification of critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of 
consultation with NMFS on actions for which formal consultation has 
been completed, if those actions may affect designated critical 
habitat. Activities subject to the ESA section 7 consultation process 
include activities on Federal lands, as well as activities requiring a 
permit or other authorization from a Federal agency (e.g., a section 
10(a)(1)(B) permit from NMFS), or some other Federal action, including 
funding (e.g., Federal Highway Administration (FHA) or Federal 
Emergency Management Agency (FEMA) funding). ESA section 7 consultation 
would not be required for Federal actions that do not affect listed 
species or critical habitat, and would not be required for actions on 
non-Federal and private lands that are not carried out, funded, or 
authorized by a Federal agency.

Activities That May Be Affected

    ESA section 4(b)(8) requires, to the maximum extent practicable, in 
any regulation to designate critical habitat, an evaluation and brief 
description of those activities (whether public or private) that may 
adversely modify such habitat or that may be affected by such 
designation. A wide variety of activities may affect Southern Resident 
killer whale critical habitat and may be subject to the ESA section 7 
consultation processes when carried out, funded, or authorized by a 
Federal agency. These include: (1) Salmon fisheries and other fisheries 
that have incidental bycatch of salmon; (2) salmon hatcheries; (3) 
offshore aquaculture/mariculture; (4) alternative energy development; 
(5) oil spills and response; (6) military activities; (7) vessel 
traffic; (8) dredging and dredge material disposal; (9) oil and gas 
exploration and production; (10) mineral mining (including sand and 
gravel mining); (11) geologic surveys (including seismic surveys); and 
(12) activities occurring adjacent to or upstream of critical habitat 
that may affect essential features, that we refer to as ``upstream'' 
activities (including activities contributing to point-source water 
pollution, power plant operations, liquefied natural gas terminals, 
desalinization plants). Section 7 consultations must be based on the 
best scientific and commercial information available when they are 
undertaken, and outcomes are case-specific. Inclusion (or exclusion) 
from this list, therefore, does not predetermine the occurrence or 
outcome of any consultation.
    Private or non-Federal entities may also be affected by this 
critical habitat designation if a Federal permit is required, Federal 
funding is received, or the entity is involved in or receives benefits 
from a Federal project. These activities would need to be evaluated 
with respect to their potential to destroy or adversely modify Southern 
Resident killer whale critical habitat. For ongoing activities, this 
designation of critical habitat may trigger reinitiation of past 
consultations. Although we cannot predetermine the outcome of section 7 
consultations, we do not anticipate at this time that the outcome of 
reinitiated consultations would likely require additional conservation 
efforts, because effects to Southern Resident killer whales and their 
prey species would in most instances have been assessed in the original 
consultation. We are committed to working closely with other Federal 
agencies to conduct any reinitiated consultations in an efficient and 
streamlined manner to the maximum extent possible and consistent with 
our statutory and regulatory requirements. Questions regarding whether 
specific activities would constitute destruction or adverse 
modification of critical habitat should be directed to NMFS (see 
ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Technical Changes to the Southern Resident Killer Whale Critical 
Habitat Regulations

    In addition to designating coastal critical habitat, we are making 
three technical changes to the existing Southern Resident killer whale 
critical habitat regulations in 50 CFR 226.206. First, the introductory 
paragraph of the existing regulations states that the textual 
descriptions of critical habitat are the definitive source for 
determining the critical habitat boundaries and the overview map is 
provided for general guidance purposes only. In 2012, NMFS and the 
USFWS revised the ESA implementing regulations to specify that the 
boundaries of critical habitat as mapped or otherwise described in the 
regulations will be the official delineation of the designation (77 FR 
25611; May 1, 2012). To comply with this revision, we are deleting the 
second and third sentences of the introductory paragraph of 50 CFR 
226.206, and replacing them with the following: The maps, clarified by 
the textual descriptions in this section, are the definitive source for 
determining the critical habitat boundaries.
    Second, the existing regulations specify primary constituent 
elements (PCE) essential for conservation of Southern Resident killer 
whales. In 2016, NMFS and the USFWS revised the ESA implementing 
regulations to remove the term PCE and replaced it with the statutory 
term ``physical or biological features'' (81 FR 7226; February 11, 
2016). These are also referred to as ``essential features.'' To comply 
with this revision, we are revising 50 CFR 226.206(c) by replacing the 
term PCE with the term ``essential features.''
    Third, we are moving the map(s) to the end of the section to 
accommodate the additional text necessary to describe the newly added 
critical habitat areas.

References Cited

    A complete list of all references cited in this final rule can be 
found on our website at www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html or 
the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041, and is available upon request 
from the NMFS West Coast Region office in Seattle, Washington (see 
ADDRESSES).

Classification

Executive Order 12630, Takings

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions

[[Page 41692]]

on constitutionally protected private property rights and avoid 
unnecessary takings of property. A taking of property includes actions 
that result in physical invasion or occupancy of private property, and 
regulations imposed on private property that substantially affect its 
value or use. In accordance with E.O. 12630, the final rule does not 
have significant takings implications. A takings implication assessment 
is not required. The designation of critical habitat affects only 
Federal agency actions (i.e., those actions authorized, funded, or 
carried out by Federal agencies). Therefore, the critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits. This designation would not increase or 
decrease the current restrictions on private property concerning take 
of Southern Resident killer whales, nor do we expect the final critical 
habitat designation to impose substantial additional burdens on land 
use or substantially affect property values. Additionally, a final 
critical habitat designation would not preclude the development of 
Habitat Conservation Plans and issuance of incidental take permits for 
non-Federal actions. Owners of areas included within the critical 
habitat designation would continue to have the opportunity to use their 
property in ways consistent with the survival of listed Southern 
Resident killer whales.

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
final rule is significant for purposes of E.O. 12866 review. The FEA 
(IEc 2021) and Final ESA Section 4(b)(2) Report (NMFS 2021b) have been 
prepared to support the exclusion process under section 4(b)(2) of the 
ESA and our consideration of alternatives to this rulemaking as 
required under E.O. 12866. To review these documents, see the ADDRESSES 
section above.

Executive Order 12988, Civil Justice Reform

    In accordance with E.O. 12988, we have determined that this rule 
does not unduly burden the judicial system and meets the requirements 
of sections 3(a) and 3(b)(2) of the E.O. We are designating critical 
habitat in accordance with the provisions of the ESA. This rule uses 
standard property descriptions and identifies the essential features 
within the designated areas to assist the public in understanding the 
habitat needs of Southern Resident killer whales.

Executive Order 13132, Federalism

    The E.O. on Federalism, Executive Order 13132, requires agencies to 
take into account any federalism impacts of regulations under 
development. It includes specific consultation directives for 
situations in which a regulation may preempt state law or impose 
substantial direct compliance costs on state and local governments 
(unless required by statute). Pursuant to E.O. 13132, we determined 
that this final rule does not have significant federalism effects and 
that a federalism assessment is not required. In keeping with 
Department of Commerce policies and consistent with ESA regulations at 
50 CFR 424.16(c)(1)(ii), we requested information for this rule from 
the appropriate state resources agencies in Washington, Oregon, and 
California. The designation may have some benefit to state and local 
resource agencies in that the rule more clearly defines the physical 
and biological features essential to the conservation of the species 
and the coastal areas in which those features are found. While this 
designation would not alter where and what non-federally sponsored 
activities may occur, it may assist local governments in long-range 
planning (rather than waiting for case-by-case ESA section 7 
consultations to occur).
    Where state and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests only on the Federal agency.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The long-standing and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and with respect 
to Indian lands, tribal trust resources, and the exercise of tribal 
rights. Pursuant to these authorities, lands have been retained by 
Indian Tribes or have been set aside for tribal use. These lands are 
managed by Indian Tribes in accordance with tribal goals and objectives 
within the framework of applicable treaties and laws. E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the responsibilities of the Federal Government in matters affecting 
tribal interests.
    There is a broad array of activities on Indian lands that may 
trigger ESA section 7 consultations. In developing this rule to revise 
Southern Resident killer whale critical habitat, we reviewed maps and 
did not identify any areas under consideration for critical habitat 
along the coast that overlap with Indian lands, because the shoreward 
extent of the areas under consideration for designation is 6.1 m (20 
ft) water depth. Based on this, we preliminarily found that there were 
no Indian lands subject to consideration for possible exclusion. 
However, as discussed above, our preliminary assessment indicated that 
some federally-recognized tribes (83 FR 4235; January 30, 2018) have 
lands that may be in close proximity to areas under consideration for 
designation as critical habitat for Southern Resident killer whales, 
have usual and accustomed fishing areas that overlap with critical 
habitat areas, or may otherwise be affected. These include: 
Confederated Tribes of the Chehalis Reservation, Hoh Indian Tribe, 
Makah Indian Tribe, Quileute Tribe, Quinault Indian Nation, and 
Shoalwater Bay Indian Tribe in Washington; Confederated Tribes of Coos, 
Lower Umpqua, and Siuslaw Indians, Confederated Tribes of the Siletz 
Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae Heights 
Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, Karuk 
Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation, Wiyot 
Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California as a tribal 
entity that may be affected by critical habitat designation.
    As discussed previously we contacted each of these tribes to 
solicit comments regarding Indian lands that may overlap and may 
warrant exclusion from critical habitat for Southern Resident killer 
whales. We also sought information from these tribes concerning other 
tribal activities that may be affected in areas other than tribal lands 
(e.g., tribal fisheries in usual and accustomed coastal marine areas). 
We will continue to consult with affected tribes regarding

[[Page 41693]]

the implementation of this critical habitat designation.

Executive Order 13211, Energy Supply, Distribution, and Use

    E.O. 13211 requires agencies to prepare a Statement of Energy 
Effects when undertaking a ``significant energy action.'' According to 
Executive Order 13211, ``significant energy action'' means any action 
by an agency that is expected to lead to the promulgation of a final 
rule or regulation that is a significant regulatory action under 
Executive Order 12866 and is likely to have a significant adverse 
effect on the supply, distribution, or use of energy. We have 
considered the potential impacts of this action on the supply, 
distribution, or use of energy and find the revision to the designation 
of critical habitat will not have impacts that exceed the thresholds 
identified in OMB's memorandum M-01-27, Guidance for Implementing E.O. 
13211 (See IEc 2021).

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We prepared a final 
regulatory flexibility analysis (FRFA), which is part of the FEA 
(Chapter 5, IEc 2021). This document is available upon request and 
online (see ADDRESSES). Results of the FRFA are summarized below.
    NMFS listed the Southern Resident killer whale Distinct Population 
Segment as endangered under the ESA on November 18, 2005 (70 FR 69903), 
and on November 29, 2006, issued a final rule designating critical 
habitat for the whales in inland waters of Washington (71 FR 69054). 
NMFS is now expanding the critical habitat designation by adding waters 
along the Pacific Coast between Cape Flattery, Washington, and Point 
Sur, California. The objective of the rule is to utilize the best 
scientific and commercial information available to expand critical 
habitat for the Southern Resident killer whale to best meet the 
conservation needs of the species in order to meet recovery goals. 
Section 4(a)(3)(A)(ii) of the ESA allows NMFS to revise designations to 
critical habitat as appropriate and is the legal basis for this rule. 
This final rule will not impose any recordkeeping or reporting 
requirements on small entities and will not duplicate, overlap, or 
conflict with any other laws or regulations.
    The expansion of critical habitat for the Southern Resident killer 
whales is expected to have a limited economic impact, on the order of 
$80,000 annualized over 10 years. The nature of these costs are 
administrative efforts to consider potential for adverse modification 
part of future ESA section 7 consultations. Primarily, consultations 
are between NMFS and Federal action agencies to evaluate the potential 
for projects and activities to result in adverse modification of 
critical habitat. Therefore, most incremental impacts are borne by NMFS 
and other Federal agencies and not by private entities or small 
governmental jurisdictions. However, some consultations may include 
third parties (e.g., project proponents or landowners) that may be 
small entities. These third parties may bear some portion of the 
administrative consultation costs.
    Of the activities for which future consultations are forecast and 
expected to result in incremental economic impacts due to the expanded 
critical habitat designation, only a subset involve third parties that 
may be small entities. Specifically, consultations on renewable energy 
development, dredging and in-water construction, and seismic surveying 
may involve small entities, including small businesses or governments. 
The analysis anticipates approximately six consultations on in-water 
and coastal construction activities per year, 0.5 consultations on 
renewable energy development, and 0.1 consultations on seismic surveys. 
While the activity forecast includes less than one consultation 
annually on renewable energy development and seismic surveying, the 
FRFA evaluates the impacts associated with one consultation on each of 
these activities to reflect a high-end estimate for a single year. 
Administrative costs of consultations on fisheries, military 
activities, and hatchery operations are unlikely to involve third 
parties beyond NMFS and the Federal action agency.
    Because consultations on fisheries activities are conducted on 
fishery management plans, rather than on individual fishing activities 
or permits, individual fishermen and fishing entities that would be 
considered small businesses are not parities to those consultations. As 
such, they would only incur costs if additional conservation efforts 
resulted from this critical habitat designation. NMFS was not able to 
envision a scenario in which the expansion of critical habitat for 
Southern Resident killer whales would result in changes to management 
of salmon fisheries and potential associated costs to small fishing 
businesses. This conclusion was due to a number of factors including 
strong existing baseline protections stemming from the ESA listing and 
consequent need for recovery of many salmon populations themselves, 
existing consideration of fishery impacts and prey availability 
relative to the potential for jeopardy to Southern Resident killer 
whales even absent critical habitat, as well as NMFS's experience over 
the past 15 years implementing the inland waters critical habitat for 
Southern Resident killer whales, which has not resulted in fishery 
management changes beyond those already considered as a result of ESA 
consultation on prey effects relative to jeopardy. Costs of this rule 
associated with fishing activities would be limited to administrative 
costs for future consultations, which are borne by NMFS as both the 
consulting and action agency, and do not include third parties.
    For the consultations that may involve third parties, it is not 
known whether the third parties bearing administrative costs are likely 
to be large or small entities. The analysis conservatively assumes all 
third parties involved in these consultations are small entities. The 
number of small entities bearing these incremental administrative costs 
in a given year is uncertain. To provide information on the range of 
potential entities affected and the potential costs borne by these 
entities, the analysis presents two scenarios reflecting the extremes:
    (1) Scenario 1 identifies the maximum number of future 
consultations involving small entities and assumes that each 
consultation involves one unique small entity. We estimate the maximum 
number of future consultations, and accordingly number of potentially 
affected entities, to be eight. This represents the total number of 
annual consultations that occur across all critical habitat units 
involved with in-water construction, renewable energy development, and 
seismic surveying. Scenario 1 accordingly provides a high-end estimate 
of the number of potentially affected small entities (assuming each 
consultation involves a unique third party and all third parties are 
small entities), and a low-end estimate of the potential effect in 
terms of the economic effects (i.e., percent of annual revenues) for 
each entity (total third party costs of the consultations are divided 
across the high-end number of small entities). This

[[Page 41694]]

scenario may overstate the number of small entities likely to be 
affected by the rule and may understate the potential impact per 
entity. Under Scenario 1, we estimate that eight small entities have 
the potential to bear an impact of $1,000 to $1,800 per entity.
    (2) Scenario 2 assumes all future costs to an industry are borne by 
a single small entity within that industry. This scenario may 
understate the number of small entities affected and overstate the per-
entity impacts. As such, this scenario arrives at a low-end estimate of 
potentially affected entities and a high-end estimate of potential 
economic cost effects. Under this scenario, one small entity in the in-
water construction industry would bear costs of $6,000.
    Because the analysis assumes a maximum of one consultation on both 
renewable energy development and seismic surveying in a single year, 
the cost estimates for these activities are identical under both 
scenarios ($1,200 for one small entity in the renewable energy 
development industry and $1,800 for one small entity in the seismic 
survey industry). However, for in-water construction and dredging, 
these scenarios reflect a range of potentially affected entities and 
associated revenue effects. The actual number of small in-water 
construction entities affected, and the per-entity revenue effects are 
likely to be somewhere in the middle. In other words, some subset 
greater than one and less than 6 of the in-water construction small 
entities may participate in the section 7 consultations and bear the 
associated impacts.
    Under both scenarios, potential costs borne by small entities are 
expected to be minor. Ultimately, up to eight small entities per year 
may bear costs associated with participation in consultation regarding 
the proposed expansion of critical habitat for Southern Resident killer 
whale. The total annualized administrative costs that may be borne by 
these small entities (businesses or governments) is $9,000 (discounted 
at 7 percent).
    The RFA, as amended by SBREFA, requires us to consider alternatives 
to the proposed regulation that will reduce the impacts to small 
entities. We considered an alternative of not expanding critical 
habitat for Southern Resident killer whales within their coastal range 
because it would impose none of the additional economic, national 
security, or other relevant impacts described in the FEA (IEc 2021) or 
the Final ESA Section 4(b)(2) Report. Under this alternative, Southern 
Resident killer whales would continue to receive protections provided 
under the ESA, the existing critical habitat, as well as other Federal, 
state, and local laws. We rejected this alternative because we 
determined that the expanded critical habitat is prudent and 
determinable, and the ESA requires critical habitat designation in that 
circumstance. We also considered alternatives in which we designated 
all six of the identified ``specific areas'' (i.e., no area excluded), 
or designated some subset of the ``specific areas'' (i.e., some 
``particular areas'' within the identified ``specific areas'' would be 
excluded). As described in our Final ESA Section 4(b)(2) Report, we 
considered the economic impacts, impacts to national security, and 
other relevant impacts that would result from designation, and weighed 
the benefits of designation against the benefits of exclusion. 
Ultimately, we selected an alternative in which one particular area was 
excluded from the designation, the Navy's Quinault Range Site off the 
coast of Washington and a 10-km buffer around a portion of it, because 
we considered impacts to national security outweighed the benefits of 
designating critical habitat there.

Coastal Zone Management Act

    Under section 307(c)(1)(A) of the Coastal Zone Management Act 
(CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each 
Federal activity within or outside the coastal zone that has reasonably 
foreseeable effects on any land or water use or natural resource of the 
coastal zone shall be carried out in a manner which is consistent to 
the maximum extent practicable with the enforceable policies of 
approved State coastal management programs. We have determined that 
this revision of the critical habitat designation for Southern Resident 
killer whales is consistent to the maximum extent practicable with the 
enforceable policies of the approved Coastal Zone Management Programs 
of Washington, Oregon, and California. This determination was submitted 
to the responsible agencies in the aforementioned states for review. 
The Washington Department of Ecology and California Coastal Commission 
responded to confirm consistency with their coastal management 
programs.

Paperwork Reduction Act

    The purpose of the Paperwork Reduction Act is to minimize the 
paperwork burden for individuals, small businesses, educational and 
nonprofit institutions, and other persons resulting from the collection 
of information by or for the Federal Government. This final rule does 
not contain any new or revised collection of information. This rule 
would not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (a) This final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
The designation of critical habitat does not impose an enforceable duty 
on non-Federal government entities or private parties. The only 
regulatory effect of a critical habitat designation is that Federal 
agencies must ensure that their actions are not likely to destroy or 
adversely modify critical habitat under ESA section 7. Non-Federal 
entities that receive funding, assistance, or permits from Federal 
agencies or otherwise require approval or authorization from a Federal 
agency for an action may be indirectly impacted by the designation of 
critical habitat, but the legally binding duty to avoid destruction or 
adverse modification of critical habitat rests squarely on the Federal 
agency. Furthermore, to the extent that non-Federal entities are 
indirectly impacted because they receive Federal assistance or 
participate in a voluntary Federal aid program, the Unfunded Mandates 
Reform Act would not apply. Nor would critical habitat shift the costs 
of the large entitlement programs listed above to state governments.
    (b) Due to the prohibition against take of Southern Resident killer 
whales both within and outside of the designated areas, we do not 
anticipate that this rule will significantly or uniquely affect small 
governments. As such, a Small Government Agency Plan is not required.

Information Quality Act and Peer Review

    Pursuant to the Information Quality Act (section 515 of Pub. L. 
106-554), this information product has undergone a pre-dissemination 
review by NMFS. The signed Pre-dissemination Review and Documentation 
Form is on file with the NMFS West Coast Regional Office in Seattle, 
Washington (see FOR FURTHER INFORMATION CONTACT).
    On December 16, 2004, OMB issued its Final Information Quality 
Bulletin for Peer Review (Bulletin). The Bulletin

[[Page 41695]]

was published in the Federal Register on January 14, 2005 (70 FR 2664), 
and went into effect on June 16, 2005. The primary purpose of the 
Bulletin is to improve the quality and credibility of scientific 
information disseminated by the Federal Government by requiring peer 
review of ``influential scientific information'' and ``highly 
influential scientific information'' prior to public dissemination. 
Influential scientific information is defined as information the agency 
reasonably can determine will have or does have a clear and substantial 
impact on important public policies or private sector decisions. The 
Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review. Stricter standards were 
established for the peer review of ``highly influential scientific 
assessments,'' defined as information whose dissemination could have a 
potential impact of more than $500 million in any one year on either 
the public or private sector or that the dissemination is novel, 
controversial, or precedent-setting, or has significant interagency 
interest. The Draft Biological Report (NMFS 2019a) and DEA (IEc 2019) 
supporting the proposed rule are considered influential scientific 
information and subject to peer review. These two reports were 
distributed to five independent reviewers for review before the 
publication date of the proposed rule, and peer review comments were 
incorporated prior to their dissemination in support of the proposed 
rulemaking. The peer reviewer comments were compiled into peer review 
reports that are available at the following website: https://www.cio.noaa.gov/services_programs/prplans/ID402.html.
    Final reports with updates based on comments were reviewed by NOAA 
NMFS Science Center experts.
    On April 24, 2019, OMB issued memorandum M-19-15 to reinforce, 
clarify, and interpret agency responsibilities under the Information 
Quality Act. The memorandum directs agencies to update their agency-
specific guidelines within 90 days to be consistent with certain 
parameters. NOAA has not yet issued revised guidance.

National Environmental Policy Act (NEPA)

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

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: July 22, 2021.
Carrie Robinson,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 226 is amended 
as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority: 16 U.S.C. 1533.

0
2. Revise Sec.  226.206 to read as follows:


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

    Critical habitat is designated for the Southern Resident killer 
whale as described in this section. The maps, clarified by the textual 
descriptions in this section, are the definitive source for determining 
the critical habitat boundaries.
    (a) Critical habitat boundaries. Critical habitat is designated to 
include all areas in paragraphs (a)(1) and (2) of this section.
    (1) Inland waters of Washington State. Critical habitat includes 
three specific marine areas of Puget Sound, Washington, within the 
following counties: Clallam, Jefferson, King, Kitsap, Island, Mason, 
Pierce, San Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical 
habitat includes all waters relative to a contiguous shoreline 
delimited by the line at a depth of 20 ft (6.1 m) relative to extreme 
high water in each of the following areas:
    (i) Summer Core Area. All U.S. marine waters in Whatcom and San 
Juan counties; and all marine waters in Skagit County west and north of 
the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W).
    (ii) Puget Sound Area. All marine waters in Island County east and 
south of the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W), and east of a line connecting the Point Wilson 
Lighthouse (48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey 
Island located at 48[deg]12'30'' N/122[deg]44'26'' W; all marine waters 
in Skagit County east of the Deception Pass Bridge (Highway 20) 
(48[deg]24'25'' N/122[deg]38'35'' W); all marine waters of Jefferson 
County east of a line connecting the Point Wilson Lighthouse 
(48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey Island 
located at latitude 48[deg]12'30'' N/122[deg]44'26'' W, and north of 
the Hood Canal Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23'' 
W); all marine waters in eastern Kitsap County east of the Hood Canal 
Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23'' W); all marine 
waters (excluding Hood Canal) in Mason County; and all marine waters in 
King, Pierce, Snohomish, and Thurston counties.
    (iii) Strait of Juan de Fuca Area. All U.S. marine waters in 
Clallam County east of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W); all marine waters in 
Jefferson and Island counties west of the Deception Pass Bridge 
(Highway 20) (48[deg]24'25'' N/122[deg]38'35'' W), and west of a line 
connecting the Point Wilson Lighthouse (48[deg]8'39'' N/122[deg]45'12'' 
W) and a point on Whidbey Island located at 48[deg]12'30'' N/
122[deg]44'26'' W.
    (2) Coastal marine waters along the U.S. West Coast. Critical 
habitat includes six specific marine areas along the coasts of 
Washington, Oregon, and California. Critical habitat includes all 
waters relative to a contiguous shoreline delimited by the line at a 
depth of 20 ft (6.1 m) relative to mean high water in each of the 
following areas:
    (i) Coastal Washington/Northern Oregon Inshore Area. U.S. marine 
waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'' N/124[deg]44'12'' W), and Bonilla Point, British Columbia 
(48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. international 
border with Canada south to Cape Meares, Oregon (45[deg]29'12'' N), 
between the 6.1-m and 50-m isobath contours. This includes waters off 
Clallam, Jefferson, Grays Harbor, and Pacific counties in Washington 
and Clatsop and Tillamook counties in Oregon.
    (ii) Coastal Washington/Northern Oregon Offshore Area. U.S. marine 
waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W) south to Cape Meares, 
Oregon (45[deg]29'12'' N), between the 50-m and 200-m isobath contours. 
This includes waters off Clallam, Jefferson, Grays Harbor, and Pacific 
counties in Washington and Clatsop and Tillamook counties in Oregon.
    (iii) Central/Southern Oregon Coast Area. U.S. marine waters from 
Cape Meares, Oregon (45[deg]29'12'' N) south to the border between 
Oregon and California (42[deg]00'00'' N), between the 6.1-m and 200-m 
isobath contours. This

[[Page 41696]]

includes waters off Tillamook, Lincoln, Lane, Douglas, Coos, and Curry 
counties in Oregon.
    (iv) Northern California Coast Area. U.S. marine waters from the 
border between Oregon and California (42[deg]00'00'' N) south to Cape 
Mendocino, California (40[deg]26'19'' N), between the 6.1-m and 200-m 
isobath contours. This includes waters off Del Norte and Humboldt 
counties in California.
    (v) North Central California Coast Area. U.S. marine waters from 
Cape Mendocino, California (40[deg]26'19'' N) south to Pigeon Point, 
California (37[deg]11'00'' N), between the 6.1-m and 200-m isobath 
contours. This includes waters off Humboldt, Mendocino, Sonoma, Marin, 
San Francisco, and San Mateo counties in California.
    (vi) Monterey Bay Area. U.S. marine waters from Pigeon Point, 
California (37[deg]11'00'' N) south to Point Sur, California 
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This 
includes waters off San Mateo, Santa Cruz, and Monterey counties in 
California.
    (b) Essential features. The essential features for the conservation 
of Southern Resident killer whales are the following:
    (1) Water quality to support growth and development;
    (2) Prey species of sufficient quantity, quality, and availability 
to support individual growth, reproduction, and development, as well as 
overall population growth; and
    (3) Passage conditions to allow for migration, resting, and 
foraging.
    (c) Sites owned or controlled by the Department of Defense. 
Critical habitat does not include the following particular areas owned 
or controlled by the Department of Defense, or designated for its use, 
in the State of Washington, including shoreline, nearshore areas around 
structures such as docks and piers, and marine areas where they overlap 
with the areas described in paragraph (a) of this section:
    (1) Naval Undersea Warfare Center, Keyport;
    (2) Naval Ordnance Center, Port Hadlock (Indian Island);
    (3) Naval Fuel Depot, Manchester;
    (4) Naval Air Station, Whidbey Island;
    (5) Naval Station, Everett;
    (6) Naval Hospital Bremerton;
    (7) Fort Lewis (Army);
    (8) Pier 23 (Army);
    (9) Puget Sound Naval Ship Yard;
    (10) Strait of Juan de Fuca naval air-to-surface weapon range, 
restricted area;
    (11) Strait of Juan de Fuca and Whidbey Island naval restricted 
areas;
    (12) Admiralty Inlet naval restricted area;
    (13) Port Gardner Naval Base restricted area;
    (14) Port Orchard Passage naval restricted area;
    (15) Sinclair Inlet naval restricted area;
    (16) Carr Inlet naval restricted area;
    (17) Port Townsend/Indian Island/Walan Point naval restricted area;
    (18) Crescent Harbor Explosive Ordnance Units Training Area; and
    (19) Quinault Range (including the surf zone at Pacific Beach) and 
a 10-km buffer around most of the Quinault Range, not including the 
portion of this buffer that extends beyond 10 km into the Olympic Coast 
National Marine Sanctuary (OCNMS).
    (d) Maps of Southern Resident killer whale critical habitat.
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[FR Doc. 2021-16094 Filed 7-30-21; 8:45 am]
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