41668 Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations 

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. 

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 

(mi2) (41,207 square kilometers (km2)) 

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 

mi2 (3627 km2), 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/criticalhabitat-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 mi2 (6,630 km2) 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-killerwhales). 

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 noiserelated 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 mi2 (4,371.5 km2) of potential 

critical habitat, and the final exclusion 

area encompasses 1,400.4 mi2 (3627 

km2) 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 ESAlisted 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 northsouth 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°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. 


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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 


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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 motheroffspring 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. 


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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 


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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 


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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 thirdparty 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 


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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 northsouth 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, 


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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-navynorthwest-training-and-testing-nwtt2020). 

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 Pe ́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 


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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 


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(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 soundreliant 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 


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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 semienclosed 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 satellitetagged 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 durationof-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 durationof-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°23′10′′ N/ 

124°43′32′′ W), Tatoosh Island, 

Washington (48°23′30′′ N/124°44′12′′ 

W), and Bonilla Point, British Columbia 

(48°35′30′′ N/124°43′00′′ W), from the 

U.S. international border with Canada 

south to Cape Meares (45°29′12′′ N), 

between the 6.1–m and 50–m isobath 

contours. This area covers 1,437.9 mi2

(3,724.2 km2) 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°23′10′′ N/ 

124°43′32′′ W), Tatoosh Island, 

Washington (48°23′30′′ N/124°44′12′′ 

W), and Bonilla Point, British Columbia 

(48°35′30′′ N/124°43′00′′ W), from the 

U.S. international border with Canada 

south to Cape Meares (45°29′12′′ N), 

between the 50-m and 200-m isobath 

contours. This area covers 4,617.2 mi2

(11,958.6 km2), 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°29′12′′ N) south to 

the OR/CA border (42°00′00′′ N), 

between the 6.1-m and 200-m isobath 

contours. This area covers 4,962.6 mi2

(12,853.1 km2) and includes waters off 

Tillamook, Lincoln, Lane, Douglas, 

Coos, and Curry counties in Oregon. 

The primary essential feature of this 

area is passage. 


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Coastal Area 4—Northern California 

Coast Area: U.S. marine waters from the 

OR/CA border (42°00′00′′ N) south to 

Cape Mendocino, CA (40°26′19′′ N), 

between the 6.1–m and 200-m isobath 

contours. This area covers 1,606.8 mi2

(4,161.5 km2) 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°26′19′′ N) south to Pigeon Point, 

CA (37°11′00′′ N), between the 6.1-m 

and 200-m isobath contours. This area 

covers 3,976.2 mi2 (10,298.4 km2) 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°11′00′′ N) south to 

Point Sur, CA (36°18′00′′ N), between 

the 6.1-m and 200-m isobath contours. 

This area covers 709.7 mi2 (1,838.2 km2) 

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 

(mi2) * Activities 

1—Coastal Washington/Northern Oregon Inshore Area ........ 1,437.9 FISH, HAT, SPILL, MIL, VESS, DR, POLL, PP. 

2 —Coastal Washington/Northern Oregon Offshore Area ..... 4,617.2 FISH, HAT, SPILL, MIL, VESS, DR, POLL, PP. 

3—Central/Southern Oregon Coast Area ............................... 4,962.6 FISH, HAT, EN, SPILL, 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 Area .................................. 3,976.2 FISH, HAT, SPILL, 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 


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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 


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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 


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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 atsea 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 


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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, FederalTribal 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 costbenefit 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 


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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; 


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(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 onefourth 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 

mi2 (4,371.5 km2) 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, 


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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 

mi2 (3,627 km2) 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 mi2 (41,207 km2) 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 mi2 (6,630 

km2)), the total designation comprises 

approximately 18,470 mi2 (47,837 km2). 

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 


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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 nonFederal 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 casespecific. 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 


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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 


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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 inwater 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 


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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 highend 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 nonFederal 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 nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply. Nor would 

critical habitat shift the costs of the large 

entitlement programs listed above to 

state governments. 

(b) Due to the prohibition against 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 


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

■ 1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Revise § 226.206 to read as follows: 

§ 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°24′25′′ N/122°38′35′′ W). 

(ii) Puget Sound Area. All marine 

waters in Island County east and south 

of the Deception Pass Bridge (Highway 

20) (48°24′25′′ N/122°38′35′′ W), and 

east of a line connecting the Point 

Wilson Lighthouse (48°8′39′′ N/ 

122°45′12′′ W) and a point on Whidbey 

Island located at 48°12′30′′ N/122°44′26′′ 

W; all marine waters in Skagit County 

east of the Deception Pass Bridge 

(Highway 20) (48°24′25′′ N/122°38′35′′ 

W); all marine waters of Jefferson 

County east of a line connecting the 

Point Wilson Lighthouse (48°8′39′′ N/ 

122°45′12′′ W) and a point on Whidbey 

Island located at latitude 48°12′30′′ N/ 

122°44′26′′ W, and north of the Hood 

Canal Bridge (Highway 104) (47°51′36′′ 

N/122°37′23′′ W); all marine waters in 

eastern Kitsap County east of the Hood 

Canal Bridge (Highway 104) (47°51′36′′ 

N/122°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°23′10′′ N/124°43′32′′ 

W), Tatoosh Island, Washington 

(48°23′30′′ N/124°44′12′′ W), and Bonilla 

Point, British Columbia (48°35′30′′ N/ 

124°43′00′′ W); all marine waters in 

Jefferson and Island counties west of the 

Deception Pass Bridge (Highway 20) 

(48°24′25′′ N/122°38′35′′ W), and west of 

a line connecting the Point Wilson 

Lighthouse (48°8′39′′ N/122°45′12′′ W) 

and a point on Whidbey Island located 

at 48°12′30′′ N/122°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°23′10′′ N/ 

124°43′32′′ W), Tatoosh Island, 

Washington (48°23′′ N/124°44′12′′ W), 

and Bonilla Point, British Columbia 

(48°35′30′′ N/124°43′00′′ W), from the 

U.S. international border with Canada 

south to Cape Meares, Oregon 

(45°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°23′10′′ N/ 

124°43′32′′ W), Tatoosh Island, 

Washington (48°23′30′′ N/124°44′12′′ 

W), and Bonilla Point, British Columbia 

(48°35′30′′ N/124°43′00′′ W) south to 

Cape Meares, Oregon (45°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°29′12′′ N) south to 

the border between Oregon and 

California (42°00′00′′ N), between the 

6.1-m and 200-m isobath contours. This 


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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°00′00′′ N) south to Cape Mendocino, 

California (40°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°26′19′′ N) 

south to Pigeon Point, California 

(37°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°11′00′′ N) south to Point Sur, 

California (36°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 airto-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. 

BILLING CODE 3510–22–P 


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khammond on DSKJM1Z7X2PROD with RULES2ER02AU21.000</GPH>

Figure 1 to Paragraph ( d) - Existing and Revised Critical Habitat for Southern 

Resident Killer Whales - Overview 

Existing and Revised Critical Habitat for 

Southern Resident Killer Whales- Overview 

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41698 Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations 

[FR Doc. 2021–16094 Filed 7–30–21; 8:45 am] 

BILLING CODE 3510–22–C 


khammond on DSKJM1Z7X2PROD with RULES2ER02AU21.001</GPH>

Figure 2 to paragraph ( d) - Existing and Revised Critical Habitat for Southern 

Resident Killer Whales - Detail 

Existing and Revised Critical Habitat for 

Southern Resident Killer Whales - Detail 

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