[Federal Register Volume 66, Number 23 (Friday, February 2, 2001)]
[Rules and Regulations]
[Pages 8850-8884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1334]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Determination of 
Critical Habitat for the Alaska-Breeding Population of Steller's Eider; 
Final Rule

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF95


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Alaska-Breeding Population of 
the Steller's Eider

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Alaska-breeding population of the Steller's 
eider (Polysticta stelleri), a threatened species listed pursuant to 
the Endangered Species Act of 1973, as amended (Act). Critical habitat 
for the Alaska-breeding population of the Steller's eider includes 
breeding habitat on the Yukon-Kuskokwim Delta (Y-K Delta) and 4 units 
in the marine waters of southwest Alaska, including the Kuskokwim 
Shoals in northern Kuskokwim Bay, and Seal Islands, Nelson Lagoon, and 
Izembek Lagoon on the north side of the Alaska Peninsula. These areas 
total approximately 7,333 square kilometers (approximately 2,830 square 
miles (mi<SUP>2</SUP>); 733,300 hectares; 1,811,984 acres) and 1,363 km 
(852 miles (mi)) of shoreline.
    Section 4 of the Act requires us to consider economic and other 
impacts of specifying any particular area as critical habitat. We 
solicited data and comments from the public on all aspects of the 
proposed rule and economic analysis. Section 7 of the Act prohibits 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency.

DATES: The effective date of this rule is March 5, 2001.

FOR FURTHER INFORMATION CONTACT: Ted Swem, Northern Alaska Ecological 
Services, U.S. Fish and Wildlife Service, 101 12th Ave., Rm 110, 
Fairbanks, AK 99701 (telephone 907/456-0203; facsimile 907/456-0208).

SUPPLEMENTARY INFORMATION:

Background

    The Steller's eider was first described by Peter Simon Pallas in 
1769, and given the scientific name Anas stelleri Pallas. After seven 
name changes, it was grouped with other eiders as Somateria stelleri. 
It is now considered distinct from the other eiders, and is the only 
species in the genus Polysticta (American Ornithologists' Union 1983). 
This genus is grouped with the other sea ducks under the Tribe Mergini 
(eiders, scoters, mergansers, and allies), Subfamily Anatinae (ducks), 
and the Family Anatidae (swans, geese, and ducks).
    The Steller's eider is the smallest of four eider species; both 
sexes are approximately 45 centimeters (17-18 inches) long (Bellrose 
1980). The plumage of the breeding adult male is white, black, and 
chestnut. The head is white with black eye patches and light green 
tinging on the forehead, lores (space between bill and eye), and below 
the eye. The chin and throat are black, separated from a broad black 
collar around the lower neck by a white ring. The shoulders and back 
are also black and each tertial (inner wing) feather is bicolored 
longitudinally, with the inner half being white and the outer half 
being bluish-black, giving the back a striped appearance when the wing 
is folded. The speculum (patch of colored feathers on the wing) is dark 
blue and the breast and belly are chestnut shading to black 
posteriorly. A black spot is present on each side of the breast. The 
flanks, rump, and under-tail feathers are black, and the wedge-shaped 
tail is dark brown. Males in eclipse plumage (dull plumage assumed 
prior to molt) during late summer and fall are entirely mottled brown 
except the wings are like the adult breeding male's and the upper wing-
coverts are white. Females and juveniles are mottled brown year-round, 
and the female adult has a blue speculum bordered in white.

Geographic Range

    Three breeding populations of Steller's eiders are recognized, two 
in Arctic Russia and one in Alaska. The majority of Steller's eiders 
breed in Russia and are identified by separate breeding and wintering 
distributions (Nygard et al. 1995). The Russian Atlantic population 
nests west of the Khatanga River and winters in the Barents and Baltic 
seas. The Russian Pacific population nests east from the mouth of the 
Khatanga River and winters in the southern Bering Sea and northern 
Pacific Ocean, where it presumably intermixes with the Alaska-breeding 
population. Neither Russia-breeding population is listed as threatened 
or endangered; only Steller's eiders that nest in Alaska are listed as 
threatened under the Act.
    This rule for critical habitat addresses the Alaska-breeding 
population of Steller's eiders, the only population listed under the 
Act, but individuals from the Alaska-breeding population are visually 
indistinguishable from unlisted Russia-breeding Steller's eiders. 
During the autumn molt, winter, and spring migration staging periods, 
the listed Alaska-breeding population intermixes with the more numerous 
and unlisted Russian Pacific population in marine waters of southwest 
Alaska. During these times, it is unknown whether the Alaska-breeding 
population concentrates in distinct areas or disperses throughout the 
species' marine range.
    The historical breeding range of the Alaska-breeding population of 
Steller's eiders is not clear. The historical breeding range may have 
extended discontinuously from the eastern Aleutian Islands to the 
western and northern Alaska coasts, possibly as far east as the 
Canadian border. In more recent times, breeding occurred in two general 
areas, the Arctic Coastal Plain on the North Slope, and western Alaska, 
primarily on the Y-K Delta. Currently, Steller's eiders breed on the 
western Arctic Coastal Plain in northern Alaska, from approximately 
Point Lay east to Prudhoe Bay, and in extremely low numbers on the Y-K 
Delta.
    On the North Slope, anecdotal historical records indicate that the 
species occurred from Wainwright east, nearly to the Alaska-Canada 
border (Anderson 1913; Brooks 1915). There are very few nesting records 
from the eastern North Slope, however, so it is unknown if the species 
commonly nested there or not. Currently, the species predominantly 
breeds on the western North Slope, in the northern half of the National 
Petroleum Reserve--Alaska (NPR-A). The majority of sightings in the 
last decade have occurred east of the mouth of the Utukok River, west 
of the Colville River, and within 90 km (56 mi) of the coast. Within 
this extensive area, Steller's eiders generally breed at very low 
densities.
    The Steller's eider was considered a locally ``common'' breeder in 
the intertidal, central Y-K Delta by naturalists early in the 1900s 
(Murie 1924; Conover 1926; Gillham 1941; Brandt 1943), but the bird was 
reported to breed in only a few locations. By the 1960s or 70s, the 
species had become extremely rare on the Y-K Delta, and only six nests 
have been found in the 1990s (Flint and Herzog 1999). Given the paucity 
of early recorded observations, only subjective estimates can be made 
of the Steller's eider's historical abundance or distribution on the Y-
K Delta.
    A few Steller's eiders were reportedly found nesting in other 
locations in western Alaska, including the Aleutian Islands in the 
1870s and 80s (Gabrielson and Lincoln 1959), Alaska Peninsula in

[[Page 8851]]

the 1880s or 90s (Murie and Scheffer 1959), Seward Peninsula in the 
1870s (Portenko 1989), and on Saint Lawrence Island as recently as the 
1950s (Fay and Cade 1959). It is unknown how regularly these areas were 
used or whether the species ever nested in intervening areas.
    After breeding, Steller's eiders move to marine waters where they 
undergo a flightless molt for about 3 weeks. The majority are thought 
to molt in four areas along the Alaska Peninsula: Izembek Lagoon 
(Metzner 1993; Dau 1999a; Laubhan and Metzner 1999), Nelson Lagoon, 
Herendeen Bay, and Port Moller (Gill et al. 1981; Petersen 1981; Dau 
1999a). Additionally, smaller numbers are known or thought to molt in a 
number of other locations along the western Alaska coast, around 
islands in the Bering Sea, along the coast of Bristol Bay, and in 
smaller lagoons along the Alaska Peninsula (Swarth 1934; Dick and Dick 
1971; Petersen and Sigman 1977; Wilk et al. 1986; Dau 1987; Petersen et 
al. 1991; Day et al. 1995; Dau 1999a). Others molt in the Russian Far-
East, primarily near Kamchatka, but where these individuals nest is 
undetermined.
    Only rudimentary information on the marine distribution of Alaska-
breeding Steller's eiders is available. Recoveries of banded Steller's 
eiders suggest that the Alaska-breeding population intermixes with 
Russian-Pacific breeders in southwest Alaska during molt. Steller's 
eiders banded during molt at Izembek and Nelson lagoons have been found 
during the breeding season near Barrow (Jones 1965; Service, U.S. 
Geological Survey, and North Slope Borough, unpub. data) as well as in 
a number of locations in Russia (Jones 1965). More recently, satellite 
telemetry tracked post-breeding movements of three individuals that 
bred at Barrow in 2000. Two of the three apparently molted near the 
Kuskokwim Shoals and the third is believed to have molted at Seal 
Islands on the north side of the Alaska Peninsula (Service unpub. 
data.).
    In general, wintering Steller's eiders occupy shallow, near-shore 
marine waters in much of southwest and south coastal Alaska. They are 
found around islands and along the coast of the Bering Sea and north 
Pacific Ocean from the Aleutian Islands, along the Alaska Peninsula and 
Kodiak Archipelago, east to lower Cook Inlet. Along open coastline, 
Steller's eiders usually remain within about 400 meters (m) (400 yards 
(yd)) of shore normally in water less than 10 m (30 feet (ft)) deep (C. 
Dau, Service, pers. comm. 1999) but can be found well offshore in 
shallow bays and lagoons or near reefs (C. Dau, pers. comm. 1999; D. 
Zwiefelhofer, Service, pers. comm. 1999). An unknown number of 
Steller's eiders winter along the Russian and Japanese coasts. They 
have been reported from the Anadyr Gulf (Konyukhov 1990), Komandor 
(Commander) and Kuril islands in Russia (Kistchinski 1973; Palmer 
1976), and near Hokkaido Island in northern Japan (Brazil 1991).
    Prior to spring migration, thousands to tens of thousands of 
Steller's eiders stage at a series of locations along the north side of 
the Alaska Peninsula, including several areas used during molt and 
winter such as Port Heiden, Port Moller, Nelson Lagoon, and Izembek 
Lagoon (Larned et al. 1994; Larned 1998). From there, they cross 
Bristol Bay, and it is thought that virtually the entire Alaska-
wintering adult population spends days or weeks feeding and resting in 
northern Kuskokwim Bay and in smaller bays along its perimeter (W. 
Larned, Service, pers. comm. 1999). The number seen there varies among 
years, presumably due to variation in sea ice conditions that may slow 
northward migration in some years. An estimated 42,000 have 
concentrated in early May in Kuskokwim Bay when lingering sea ice has 
delayed northward migration (Larned et al. 1994). Steller's eiders also 
concentrate along the southwest coast of the Y-K Delta and southern 
coast of Nunivak Island during spring migration (Larned et al. 1994).
    Steller's eiders move north through the Bering Strait between mid-
May and early June (Bailey 1943; Kessel 1989). Subadults may remain in 
wintering areas or along the migration route during the summer breeding 
season, as they have been noted in Nelson Lagoon in July (M. Petersen, 
U.S. Geological Survey, pers. comm. 1999), around Nunivak Island from 
July to October (B. McCaffery, Service, pers. comm. 1999) and offshore 
and along the lagoons of St. Lawrence Island in summer (Fay 1961). 
Steller's eiders have been seen in lagoons along the northwest coast of 
Alaska in late July, and these also may be subadults (Day et al. 1995).
    Fall migration is protracted, with Steller's eiders moving south 
through the Bering Strait from late July through October (Kessel 1989), 
depending on age and sex of individuals and whether migration takes 
place before or after wing molt (Jones 1965). Fall migration routes are 
poorly understood, but groups have been seen passing near shore at 
Nunivak Island (Dau 1987) and Cape Romanzof (McCaffery and Harwood 
1997).

Population Status

    Determining population trends for Steller's eiders is difficult; 
however, the Steller's eider's breeding range in Alaska appears to have 
contracted, with the species disappearing from much of its historical 
range in western Alaska (Kertell 1991) and possibly a portion of its 
range on the North Slope. In areas where the species still occurs in 
Alaska, the frequency of occurrence (the proportion of years in which 
the species is present) and the frequency of breeding (the proportion 
of years in which the species attempts to nest) have both apparently 
declined in recent decades (Quakenbush et al. 1999).
    We do not know whether the species' breeding population on the 
North Slope is currently declining, stable, or improving. Although 
Steller's eiders are counted there during extensive aerial waterfowl 
and eider surveys, few are seen in most years because the species 
occurs at very low density and the surveys sample only a small 
proportion of the suitable breeding habitat. Based on observations at 
Barrow, we have found that breeding population size and breeding effort 
vary considerably among years, therefore, detecting statistically 
significant population trends and accurately estimating population size 
is difficult.
    Despite the difficulty in detecting statistically significant 
trends with North Slope aerial survey data, these data can be used to 
estimate breeding population size. Several dozen Steller's eiders are 
usually detected during aerial breeding-pair waterfowl surveys on the 
North Slope each year (Service unpub. data (a)). These surveys sample 
2-3 percent of the suitable waterfowl breeding habitat annually. When 
extrapolated to the entire study area, the number of sightings suggests 
that hundreds or low thousands (point estimates ranged from 534 to 
2,543 in 1989-1999) of Steller's eiders would be detected if the entire 
region were surveyed each year. Actual population size is probably 
higher, however, because these estimates are made with the assumption 
that all Steller's eiders within the sample area are detected. Based on 
knowledge of other waterfowl species, this is almost certainly not the 
case, but information is inadequate to estimate a species-specific 
visibility correction factor. Based on these observations, it seems 
reasonable to estimate that hundreds or thousands of Steller's eiders 
occur on the North Slope. Similar aerial surveys are conducted on the 
Y-K Delta, but no Steller's eiders have been detected in these surveys 
so population size and

[[Page 8852]]

trends cannot be estimated. Nonetheless, comparison of historical and 
recent observations indicate that a reduction in the species' abundance 
has occurred on the Y-K Delta (Kertell 1991).

Previous Federal Action

    In December 1990, James G. King of Juneau, Alaska, petitioned us to 
list the Steller's eider under the Act. In May 1992, we determined that 
listing was warranted but precluded by higher listing priorities 
elsewhere. In 1992, a status review of the species concluded that 
listing the Alaska-breeding population as threatened was warranted, 
although the available information did not support listing the species 
worldwide (57 FR 19852). A proposed rule to list the Alaska-breeding 
population of Steller's eiders as threatened was published in the 
Federal Register on July 14, 1994 (59 FR 35896). Appropriate Federal 
and State agencies; borough, city, and village governments; scientific 
and environmental organizations; and other interested parties were 
contacted and encouraged to comment. Shortly thereafter, a new Service 
policy (July 1, 1994; 59 FR 34270) was implemented requiring that 
listing proposals be reviewed by at least three independent 
specialists. The comment period was reopened in June 1995 to seek peer 
review, and appropriate parties were again contacted and encouraged to 
comment. A final determination on whether listing was warranted was 
further delayed by a national moratorium on listing (Public Law 104-6) 
implemented in April 1995, which prevented final determination on 
listing actions for the remainder of the fiscal year; that moratorium 
was later extended until April 1996.
    We received comments on listing Steller's eiders from a total of 
nine parties during the two comment periods. Of the comments, four 
supported listing, four were neutral, and one, the Alaska Department of 
Fish and Game, opposed listing. We also received peer review from five 
recognized experts on eider or sea duck population monitoring, 
modeling, or management; all five supported listing the Alaska-breeding 
population of Steller's eiders as threatened or endangered. Two 
environmental organizations (The Wilderness Society and Greenpeace) 
recommended designating critical habitat in current and historical 
breeding habitat, wintering habitat along the Alaska Peninsula, and 
other marine areas. The North Slope Borough supported listing but, 
although not specifically mentioning ``critical habitat,'' recommended 
against additional special protection near the village of Barrow. Of 
the five independent experts who provided peer review, four commented 
on critical habitat designation. One suggested studies of breeding 
ecology to identify critical habitat requirements, one recommended 
designating critical habitat near Barrow, one suggested ``absolute 
protection'' for Steller's eiders nesting anywhere in Alaska, and one 
mentioned that protecting ``coastal molting and wintering range'' was 
perhaps more important than breeding habitat.
    On June 11, 1997, we listed the Alaska-breeding population of 
Steller's eiders (62 FR 31748) as threatened. That decision included a 
determination that designation of critical habitat was not prudent at 
that time. Service regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent if designation would not 
be beneficial to the species. Section 7(a)(2) of the Act requires 
Federal agencies to ensure, in consultation with the Service, that 
activities they fund, authorize, or carry out are not likely to 
jeopardize the continued existence of listed species. At the time of 
our determination, we stated that critical habitat designation would 
provide no additional benefit to Steller's eiders because protection of 
the species' habitat would be ensured through section 7 consultations, 
the recovery process, and, as appropriate, through the section 10 
habitat conservation planning process.
    We initiated recovery planning for the Steller's eider in 1997. The 
Steller's Eider Recovery Team was formed, consisting of eleven members 
with a variety of expertise in Steller's eider biology, conservation 
biology, population biology, marine ecology, Native Alaskan culture, 
and wildlife management. The Recovery Team is developing a draft 
Steller's Eider Recovery Plan, and we expect the draft Recovery Plan to 
be available for review in 2001.
    In October 1998, The Wilderness Society and seven other national 
and regional environmental organization filed a lawsuit in Federal 
District Court objecting to the Department of the Interior decision to 
undertake oil and gas leasing in the National Petroleum Reserve-Alaska, 
Wilderness Society, et al. v. Babbitt, Civ. No. 98-02395 (D.D.C.). One 
of the Plaintiffs claims in this litigation is that the Service's 
failure to designated critical habitat (i.e., the ``not prudent'' 
determination) for spectacled and Steller's eiders was arbitrary and 
capricious and in violation of the Act. This claim is currently being 
litigated.
    In March 1999, the Southwest Center for Biological Diversity, 
Center for Biological Diversity, and Christians Caring for Creation 
filed a lawsuit in Federal District Court in the Northern District of 
California against the Secretary of the Department of the Interior for 
failure to designate critical habitat for five species in California 
and two in Alaska. These species include the Alameda whipsnake 
(Masticophis lateralis euryxanthus), the zayante band-winged 
grasshopper (Trimerotropis infantilis), the Morro shoulderband snail 
(Helmintholglypta walkeriana), the Arroyo southwestern toad (Bufo 
microscaphus californicus), the San Bernardino kangaroo rat (Dipodomys 
merriami parvus), the spectacled eider (Somateria fischeri), and the 
Steller's eider.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior, 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2F. Supp. 2d 
1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions and the availability of new information concerning 
the species' habitat needs, we recognized the value in reexamining the 
question of whether critical habitat for Steller's eider would be 
prudent. Accordingly, the Federal Government entered into a settlement 
agreement whereby we agreed to readdress the prudency of designating 
critical habitat for Steller's eider.
    After reviewing the best scientific and commercial data available, 
we proposed to withdraw the previous finding that the designation of 
critical habitat for the Steller's eider was not prudent. On March 13, 
1999 (65 FR 13262), we proposed to designate nine areas in northern, 
western, and southwestern Alaska as critical habitat for the Steller's 
eider. On April 19, 2000 (65 FR 20938) we extended the comment period 
until June 30, 2000. On July 5, 2000 (65 FR 41404) we extended the 
comment period until August 31, 2000. On July 31, 2000 (65 FR 46684) we 
published the notice to hold a public hearing. On August 24, 2000 (65 
FR 51577) we announced the availability of the draft economic analysis 
and extended the public comment period until September 24, 2000.
    We have made this final critical habitat determination based upon 
the best scientific and commercial information available. However, we

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recognize that we do not have complete information on the distribution 
of this species at all times of the year. If information becomes 
available indicating that additional or fewer areas are essential for 
the conservation of the species, or may need special management 
considerations and protections, we may reevaluate our critical habitat 
designation, including proposing additional critical habitat or 
proposing deletion or boundary refinement of existing critical habitat.

State of Knowledge of the Steller's Eider

    The Alaska-breeding population of the Steller's eider was listed as 
threatened in June, 1997 (62 FR 31748). At that time, we noted that 
there was considerable uncertainty about the historical distribution 
and abundance of Steller's eiders in Alaska. Although qualitative 
information suggested that the range of the species had contracted over 
the last century, there was inadequate quantitative information 
available to assess population size or trends. Thus, the decision to 
list the Alaska-breeding population was based primarily upon the near 
disappearance of Steller's eiders from the Y-K Delta and the indication 
that they may have abandoned the eastern North Slope.
    At the time of listing, the available information was also 
inadequate to identify the factor or factors causing the species' 
decline in Alaska. However, we concluded that destruction or 
modification of habitat did not appear to have played a major role in 
the decline in the Steller's eider as a nesting species in Alaska 
because--(1) only a very small proportion of the species' vast and 
remote habitat in Alaska had been modified by humans; (2) other 
waterfowl species continue to occur or nest in large numbers in the 
limited areas with human presence and impact; and (3) the only place 
where the Steller's eider is currently known to regularly nest in 
Alaska is near Barrow, where they nest near gas pipelines, roads, 
airports, and other forms of human disturbance and habitat 
modification. Possible factors that may have contributed to the 
species' decline were mentioned in the final listing rule (62 FR 
31748), including changes in the numbers or diet of predators, hunting 
(directly through shooting and/or indirectly through the ingestion of 
spent lead shot pellets in wetlands), and changes in the marine 
environment that could affect Steller's eider food or other resources. 
Although we speculated on possible factors causing decline, there was 
little or no information demonstrating that any had actually caused the 
species' decline or would limit recovery.
    In the three years since listing, research and survey efforts have 
begun to provide additional information on the species' ecology. Most 
recent information on the distribution of Steller's eiders on the North 
Slope is derived from two extensive, standardized aerial surveys that 
sample for waterfowl breeding pairs and eiders across much of the 
Arctic Coastal Plain. Although these surveys include a vast area, the 
sampling intensity is low (the waterfowl breeding pair and eider 
surveys sample approximately 2 and 4 percent of the Arctic Coastal 
Plain each year, respectively). Low sampling intensity, combined with a 
low density of Steller's eiders, results in very few Steller's eiders 
being detected by these surveys. In 1999 and 2000, intensive aerial 
surveys specifically targeting Steller's eiders with a sampling 
intensity of 50 percent were conducted in a block near Barrow, and in 
additional blocks near Admiralty Bay and Atqasuk in 1999 and 2000, 
respectively (Martin 2000a). These Steller's eider surveys provided 
considerable new information, including an indication that 200-500 
pairs of Steller's eiders may have occupied an area south of Barrow 
comprising approximately 2,700 km<SUP>2</SUP> (1,055 mi<SUP>2</SUP>) in 
both 1999 and 2000 (Martin 2000a). This finding contrasts with the 
waterfowl breeding pair and eider surveys, which provided inadequate 
information to estimate population size (and failed to detect any 
Steller's eiders in the survey overlap area in 2000). This important 
finding indicates that the population size and density of Steller's 
eiders may be considerably higher than that indicated by waterfowl 
breeding pair and eider surveys. No Steller's eiders were seen in the 
Admiralty Bay or Atqasuk blocks during the intensive Steller's eider 
surveys, although the species has been observed in these blocks during 
low-intensity waterfowl and eider surveys in other years. Given the 
tremendous annual variation in breeding population size and performance 
that is characteristic of the Steller's eider, it is premature to draw 
conclusions about the absence of Steller's eider observations in these 
blocks during a single survey year. However, the apparent striking 
difference in density between these survey blocks indicates the uneven 
distribution of the species and highlights the need for additional 
intensive surveys throughout other portions of the species' range on 
the North Slope.
    Another information gap that was noted at the time the Alaska-
breeding population of Steller's eiders was listed pertains to non-
breeding season distribution. There is considerable information on the 
use of Izembek and Nelson lagoons, and to a lesser extent other nearby 
areas on the Alaska Peninsula, during molt and winter. In these areas, 
repeated surveys have quantified the variation in use within and among 
years. In contrast, there is much less information from the majority of 
the species' vast marine range in Alaska. In some areas, surveys have 
only been conducted during fall and/or spring, have only been conducted 
a very few times, or have never been conducted (such as large portions 
of the Kodiak Archipelago). Thus, our understanding of distribution and 
how it varies within and among years is very inadequate for large 
portions of the species' non-breeding range. In February and March, 
2000, aerial shoreline surveys were conducted along thousands of 
kilometers of coastal southwestern Alaska in order to document the 
distribution of Steller's eiders (Larned 2000b). In general, these 
surveys found Steller's eiders occurring over a wide area in groups of 
dozens or hundreds, rather than larger concentrations of thousands. 
Exceptions were Izembek and Nelson lagoons, where 17,571 and 10,391 
Steller's eiders were found in March 2000, respectively (Larned 2000b). 
Further surveys are needed in marine areas in the future to better 
understand distribution and how it varies within and among years.
    Another aspect of non-breeding season distribution that is poorly 
understood pertains to the Alaska-breeding population. In general, our 
knowledge of the marine distribution and ecology of Steller's eiders 
pertains to the species as a whole, which is comprised of both the 
unlisted Russia-breeding population and the listed Alaska-breeding 
population. If the Alaska-breeding population selectively uses portions 
of the species' broader range, those areas are disproportionately 
essential for the listed population's recovery. However, the available 
information has been inadequate to evaluate whether the populations mix 
freely or are somewhat segregated in the marine environment. During 
2000, three adult Steller's eiders that bred near Barrow had satellite 
transmitters attached to follow movements after the breeding season. 
Two spent the molt period at the Kuskokwim Shoals in northern Kuskokwim 
Bay while the other spent this period at Seal Islands, a lagoon on the 
north side of the Alaska

[[Page 8854]]

Peninsula (Martin 2000b). Although the sample size is very small, these 
observations may suggest selective use of molting areas by members of 
the Alaska-breeding population because all three individuals molted in 
areas thought to support comparatively small molting populations 
(limited survey data showed that about 5,000 may molt near the 
Kuskokwim Shoals and 5,000-10,000 may molt at Seal Islands). Additional 
satellite telemetry is planned to acquire greater sample size and to 
follow birds through the winter; this will provide additional 
information on the specific areas used during molt and winter by the 
Alaska-breeding population.
    In summary, since listing we have initiated satellite telemetry 
efforts to delineate the marine distribution of the Alaska-breeding 
population of Steller's eiders. Additionally, because Steller's eiders 
are infrequently observed during standard aerial waterfowl surveys, we 
have increased intensive aerial survey efforts on the North Slope to 
better elucidate distribution and abundance. However, both of these 
efforts are preliminary and will require continued efforts to produce 
adequate information. Significant data gaps remain in our understanding 
of abundance and distribution on the North Slope, marine distribution 
during the non-breeding season (and how the distribution of the Alaska-
breeding population compares to that of the Russia-breeding 
population), factors causing decline and constraining recovery, and how 
the current status of the species compares to historical status. Each 
of these data gaps complicates the evaluation of critical habitat and 
determining which areas are essential for the species' recovery. We 
anticipate that development and completion of a Steller's Eider 
Recovery Plan will enhance our efforts to understand the roles of 
environmental, physiological, and behavioral factors in achieving 
recovery of this species.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude any area from critical habitat designation if the benefits of 
such exclusion outweigh the benefits of including such area as part of 
the critical habitat, provided the exclusion will not result in the 
extinction of the species (section 4(b)(2) of the Act).
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``* * * the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation does not afford any 
additional protections under the Act against such activities.
    Section 4 of the Act requires that we designate critical habitat at 
the time of listing and based on what we know at the time of the 
designation. When we designate critical habitat at the time of listing 
or under short court-ordered deadlines, we will often not have 
sufficient information to identify all areas of critical habitat. We 
are required, nevertheless, to make a decision and thus must base our 
designations on what, at the time of designation, we know to be 
critical habitat.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Within the geographic range occupied by the species critical habitat 
designations identify, to the extent known using the best scientific 
and commercial data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)) and may 
require special management considerations or protection.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential and that may 
require special management considerations or protection. Essential 
areas should already have the features and habitat characteristics that 
are necessary to sustain the species. It should be noted; however, that 
not all areas within the occupied geographic range of the species that 
contain the features and habitats that supports the species are 
essential and they may or may not require special management or 
protection. We will not speculate about what areas might be found to be 
essential if better information became available, or what areas may 
become essential over time. If the information available at the time of 
designation does not show that an area provides essential life cycle 
needs of the species, then the area should not be included in the 
critical habitat designation. Within the geographic area occupied by 
the species, we will not designate areas that do not now have the 
primary constituent elements , as defined at 50 CFR 424.12(b), that 
provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that decisions made by us represent the best scientific and 
commercial data available. It requires our biologists, to the extent 
consistent with the Act and with the use of the best scientific and 
commercial data available, to use

[[Page 8855]]

primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information should be 
the listing package for the species. Additional information may be 
obtained from a recovery plan, articles in peer-reviewed journals, 
conservation plans developed by states and counties, scientific status 
surveys and studies, and biological assessments or other unpublished 
materials (i.e., gray literature). Our peer review policy requires that 
we seek input from at least three scientists who are knowledgeable in 
subject matter relevant to each rule.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant or may not be required for recovery. 
Areas outside the critical habitat designation will continue to be 
subject to conservation actions that may be implemented under section 
7(a)(1) and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the section 9 take prohibition, as 
determined on the basis of the best available information at the time 
of the action. We specifically anticipate that federally funded or 
assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create a management plan, 
establish numerical population goals, prescribe specific management 
actions (inside or outside of critical habitat), set aside areas as 
preserves, or directly affect areas not designated as critical habitat. 
Specific management recommendations for critical habitat are most 
appropriately addressed in section 7 consultations for specific 
projects, or through recovery planning.
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas, both occupied and 
unoccupied, which contain or could contain the habitat features 
(primary constituent elements described below) that are essential for 
the conservation of that species. Designation of critical habitat 
alerts the public as well as land-managing agencies to the importance 
of these areas.
    Our decision to not designate critical habitat throughout all of 
our proposed critical habitat units does not imply that these non-
designated areas are unimportant to Steller's eiders. Projects with a 
Federal nexus that occur in these areas, or anywhere within the range 
of Steller's eiders, which may affect Steller's eiders must still 
undergo section 7 consultation. Our decision to not designate critical 
habitat in these areas does not reduce the consultation requirement for 
Federal agencies participating in, funding, permitting, or carrying out 
activities in these areas.

Methods

    In determining which areas are essential to the conservation of 
Steller's eiders and may require special management considerations or 
protection, we used the best scientific and commercial information 
available. Our information sources included data from banding, 
satellite telemetry, aerial surveys, ground plot surveys, ground-based 
biological investigations, maps, Geographic Information System data, 
traditional ecological knowledge, and site-specific species information 
and observations. We discussed our critical habitat proposal at 19 
public meetings and one public hearing. We convened a meeting of 
experts in the field of eider biology to provide us with information 
useful in setting criteria and boundaries for habitats essential to the 
conservation of the Steller's eider. Experts from whom we sought 
information included representatives of State and Federal agencies, the 
University of Alaska, a private consulting firm, and local government. 
We also sought peer review of the proposed rule from six recognized 
experts in eider or sea duck ecology; two submitted comments. 
Additionally, we considered 334 comments received during the open 
comment period, including written comments, oral comments received 
during meetings and one public hearing, and comments received by E-
mail, regular mail, facsimile, and telephone.
    We made a concerted effort to solicit traditional ecological 
knowledge regarding habitats that are important to Steller's eiders. We 
contacted representatives of regional governmental and non-profit 
Native organizations and asked them to recommend individuals who may 
have traditional ecological knowledge of eiders and their habitats and 
who may be willing to review the Steller's eider critical habitat 
proposal. We attempted to contact all individuals identified by the 
regional representatives, and provided those individuals who agreed to 
review the proposal with copies of the proposed rule and additional 
informational materials. Comments submitted by these and other 
individuals with traditional ecological knowledge, transmitted either 
in written form or orally during the course of public meetings, have 
been considered during the development of the final rule.
    We reviewed available information that pertains to the habitat 
requirements and preferences of this species. Comments received through 
the public review process provided us with valuable additional 
information to use in decision making, and in assessing the potential 
economic impact of designating critical habitat for the species.

Criteria Used To Identify Critical Habitat

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12 in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features that are essential to the conservation 
of the species and that may require special management considerations 
and protection. Such requirements include but are not limited to: space 
for individual and population growth, and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, 
rearing of offspring; and habitats that are protected from disturbance 
or are representative of the historic geographical and ecological 
distributions of a species. Primary constituent elements for each 
critical habitat unit are described below (see Determination).
    We considered qualitative criteria in the selection of specific 
areas or units for Steller's eider critical habitat. Such criteria 
focused on (1) identifying areas where Steller's eiders consistently 
occur at relatively high densities; (2) identifying areas where 
Steller's eiders are especially vulnerable to disturbance and 
contamination due to flightlessness; and (3) identifying areas 
essential to survival and recovery given our best available data.
    In defining critical habitat boundaries, we made an effort to avoid 
developed areas, such as towns and other similar lands, which do not 
contain the primary constituent elements of Steller's eider critical 
habitat. Existing man-made features and structures within the

[[Page 8856]]

boundaries of the mapped units, such as buildings, roads, pipelines, 
utility corridors, airports, other paved areas, and other developed 
areas do not contain one or more of the primary constituent elements 
and are therefore not critical habitat. Federal actions limited to 
those areas, therefore, would not trigger a section 7 consultation, 
unless they may affect the species and/or primary constituent elements 
in adjacent critical habitat. Additionally, some areas within the 
boundaries of the critical habitat units may not contain the primary 
constituent elements and therefore are not critical habitat. For 
example, waters greater than 9 m (30 ft) deep are not believed to be 
used by Steller's eiders and are not described as primary constituent 
elements. Regardless of the boundaries of the critical habitat units, 
all waters greater than 9 m (30 ft) deep are not critical habitat.

Critical Habitat Designation

    The designated critical habitat described below constitutes our 
best assessment of areas essential for the conservation of Steller's 
eiders and is based on the best scientific and commercial information 
available. The essential features found on the designated areas may 
require special management consideration or protection to ensure their 
contribution to the species' recovery. Our critical habitat designation 
of selected areas does not imply that areas not designated may not 
require special management considerations or protections.
    Area of designated critical habitat by land ownership is shown in 
Table 1.

                   Table 1.--Approximate Critical Habitat Area (ha \1\) by Unit and Ownership
----------------------------------------------------------------------------------------------------------------
                            Unit                                Federal       State        Native       Total
----------------------------------------------------------------------------------------------------------------
Yukon-Kuskokwim Delta.......................................      190,800            0       65,300      256,100
Kuskokwim Shoals............................................      287,600       93,700            0      381,300
Seal Islands................................................            0        6,300            0        6,300
Nelson Lagoon (incl. Port Moller and Herendeen Bay).........            0       53,300            0       53,300
Izembek Lagoon..............................................            0       36,300            0       36,300
                                                             ---------------------------------------------------
      Total.................................................      478,400      189,600       65,300     733,300
----------------------------------------------------------------------------------------------------------------
\1\ Units are hectares. To convert to km\2\, multiply hectares by 0.01; to convert to acres, multiply hectares
  by 2.471; to convert to mi\2\, multiply hectares by 0.00386.

Unit 1: Yukon-Kuskokwim Delta

    The Yukon-Kuskokwim Delta critical habitat unit includes the 
vegetated intertidal zone of the central delta from the Askinuk 
Mountains to northern Nelson Island. This unit is comprised of 15 
entire townships and 564 sections within 27 additional townships and 
encompasses 2,561 km<SUP>2</SUP> (256,100 ha) (980 mi<SUP>2</SUP>). 
This unit is one of only two known breeding sites for the Alaska-
breeding populations. The boundaries have been modified from those 
proposed to eliminate upland habitat not likely to be used by Steller's 
eiders, resulting in an 18 percent reduction in area for this unit. 
Primary constituent elements of Steller's eider critical habitat in 
this unit include all land within the vegetated intertidal zone, along 
with all open-water inclusions within that zone. The vegetated 
intertidal zone includes all lands inundated by tidally influenced 
water often enough to affect plant growth, habit, or community 
composition. Waters within this zone are usually brackish. Vegetative 
communities within this zone include, but are not limited to, low wet 
sedge tundra, grass marsh, dwarf shrub/graminoid (consisting of grasses 
and sedges) meadow, high and intermediate graminoid meadow, mixed high 
graminoid meadow/dwarf shrub uplands, and areas adjacent to open water, 
low wet sedge and grass marsh habitats. Within the indicated border, 
existing human development and areas not within the vegetated 
intertidal zone (e.g., barren mudflats and lands above the highest high 
tide line) are not considered critical habitat.
    Approximately 75 percent of the Yukon-Kuskokwim Delta Nesting Unit 
is located within the Yukon Delta National Wildlife Refuge, although a 
portion (up to 10 percent) is subject to selection by Native Village or 
Regional Corporations, under the terms of the Alaska Native Claims 
Settlement Act of 1971. The remainder of the proposed unit 
(approximately 25 percent) has been conveyed to Native Village or 
Regional Corporations.

Unit 2: Kuskokwim Shoals

    The Kuskokwim Shoals critical habitat unit is a subset of the 
proposed Kuskokwim Bay critical habitat unit. The final designated unit 
differs from the proposed unit in two ways: (1) the southern portion 
(one of two discontinuous portions of the proposed unit) has been 
eliminated; and (2) the boundaries of the northern portion of Kuskokwim 
Bay have been modified to reflect comments we received on the proposal 
and further analysis of eider distributional data (see Summary of 
Changes from Proposed Rule section, below). The Kuskokwim Shoals 
critical habitat unit includes a portion of northern Kuskokwim Bay from 
the mouth of the Kolavinarak River to near the village of Kwigillingok, 
extending 17-38 km (approximately 11-24 mi) offshore. This unit 
encompasses approximately 3,813 km<SUP>2</SUP> (1,472 mi<SUP>2</SUP>) 
of marine waters and about 184 km (115 mi) of shoreline (including the 
shoreline of barrier islands). This area is used by more than 5,000 
Steller's eiders during molt, including individuals known to be from 
the listed, Alaska-breeding population, and is thought to be extremely 
important during spring staging, when tens of thousands of Steller's 
eiders congregate there prior to moving northward as the sea ice breaks 
up and recedes. The primary constituent elements for the Kuskokwim 
Shoals Unit are marine waters up to 9 m (30 ft) deep and the underlying 
substrate, the associated invertebrate fauna in the water column, and 
the underlying marine benthic community.

Unit 3: Seal Islands

    The Seal Islands lagoon was originally proposed as a subunit of the 
North Side of the Alaska Peninsula unit but is now identified 
separately. It includes all waters enclosed within the Seal Islands 
lagoon and marine waters 400 m (\1/4\ mile) offshore of the islands and 
adjacent mainland between 159 deg. 12' W and 159 deg. 36' W. It 
encompasses 63 km<SUP>2</SUP> (24 mi<SUP>2</SUP>) and 104 km (65 mi) of 
shoreline. Thousands of Steller's eiders molt in the Seal Islands, 
including at least one individual known to be from the listed, Alaska-
breeding population, and significant numbers congregate there again in 
spring prior to migration. The primary constituent elements in the

[[Page 8857]]

Seal Islands include waters up to 9 m (30 ft) deep, the associated 
invertebrate fauna in the water column, the underlying marine benthic 
community, and where present, eelgrass beds and associated flora and 
fauna.

Unit 4: Nelson Lagoon

    The Nelson Lagoon critical habitat unit includes all of Nelson 
Lagoon (and a 400 m (\1/4\ mile) buffer offshore of the Kudobin Islands 
and the mainland west to 161 deg. 24' W) and portions of Port Moller 
and Herendeen Bay. This complex was originally proposed as a subunit of 
the North Side of the Alaska Peninsula unit but is now identified 
separately. The boundary has been changed where it crosses Port Moller 
and Herendeen Bay to reflect further data analysis and comments on the 
proposed units (see Rationale for the Final Designation section, 
below). This unit encompasses 533 km<SUP>2</SUP> (205 mi<SUP>2</SUP>) 
and 238 km (149 mi) of shoreline. This lagoon system is used by tens of 
thousands of Steller's eiders during molt, including individuals known 
to be from the listed, Alaska-breeding population. Tens of thousands 
also winter in this area during many winters, and numbers build again 
during spring, as up to 36,000 stage in the area prior to or early in 
spring migration. The primary constituent elements in Nelson Lagoon 
include waters up to 9 m (30 ft) deep, the associated invertebrate 
fauna in the water column, the underlying marine benthic community, and 
where present, eelgrass beds and associated flora and fauna.

Unit 5: Izembek Lagoon

    Izembek Lagoon was originally proposed as a subunit of the North 
Side of the Alaska Peninsula unit but is now identified separately. It 
includes all waters of Izembek Lagoon, Moffett Lagoon, Applegate Cove, 
and Norma Bay, and waters 400 m (\1/4\ mile) offshore of the Kudiakof 
Islands and adjacent mainland between 162 deg. 30' W and 163 deg. 15' 
W. It encompasses 363 km<SUP>2</SUP> (140 mi<SUP>2</SUP>) of marine 
waters and 297 km (186 mi) of shoreline. Like the Nelson Lagoon 
complex, this lagoon system is extremely important to Steller's eiders, 
being occupied during molt, winter, and spring staging by tens of 
thousands of individuals, including some known to be from the listed, 
Alaska-breeding population. The primary constituent elements in Izembek 
Lagoon include waters up to 9 m (30 ft) deep, the associated 
invertebrate fauna in the water column, the underlying marine benthic 
community, and where present, eelgrass beds and associated flora and 
fauna.

Rationale for the Final Designation

    We stated in our proposed rule: ``In the absence of clearly defined 
recovery objectives or criteria, determining which physical and 
biological features are essential for recovery is difficult. After 
considering these complicating factors, we believe it is essential to 
the recovery of the species to maintain the existing population on the 
North Slope and allow for recovery of the greatly depressed population 
on the Y-K Delta. Therefore, we believe that the following three 
components are essential for the conservation of the Alaska-breeding 
population of Steller's eiders:
    (1) The North Slope breeding subpopulation and its habitat must be 
maintained sufficiently to sustain healthy reproduction and allow for 
potential population growth;
    (2) The Y-K Delta subpopulation must be increased in abundance to 
decrease the Alaska-breeding population's vulnerability to extirpation; 
and
    (3) Molting, wintering, and spring staging habitat in the marine 
environment must be maintained to ensure adequate survival during the 
nonbreeding season.''
    We believe that those general statements about the conservation 
needs of the Steller's eider are accurate. However, in this final 
designation we have made a concerted effort to refine and translate 
those general statements into a critical habitat designation that will 
provide the greatest conservation benefit to the species possible. 
Therefore, this final rulemaking reflects significant changes to 
critical habitat areas from the proposed rulemaking. We have 
substantially reduced the area of some critical habitat units and 
completely eliminated others. We have not added area to existing 
critical habitat units or added new critical habitat units. The 
proposed rule was based on the best scientific and commercial 
information available when the proposed rule was developed. The 
settlement agreement mandated a short time line for our evaluation of 
critical habitat. Consequently, when we developed the proposed rule we 
included all areas that we thought might be essential to the 
conservation of the species, based on the best available commercial and 
scientific information.
    Following publication of the proposed rule we thoroughly evaluated 
all available information to more precisely identify those areas 
essential to the conservation of the species (see methods). Specific 
rationale for retention, modification, or exclusion of the proposed 
critical habitat in this final rulemaking is explained in detail below.

Proposed North Slope Unit

    The proposed North Slope Unit encompassed approximately 40,884 
km\2\ (15,785 mi\2\) on the Arctic Coastal Plain. The boundaries of the 
proposed unit were drawn to include about 96 percent of the breeding-
season observations of Steller's eiders made during aerial surveys and 
all intervening suitable wetland habitat. None of this proposed unit is 
designated as critical habitat at this time.
    We recognize the importance of breeding habitat to support recovery 
of the Alaska breeding population of the Steller's eider. In the 
proposed rule, we stated: ``The North Slope breeding subpopulation and 
its habitat must be maintained sufficiently to sustain healthy 
reproduction and allow for population growth.'' This need is 
exacerbated by the near extirpation of the species from the Y-K Delta, 
which likely has significantly reduced the species' distribution and 
abundance in Alaska. When we published our proposal to designate 
critical habitat we believed that the critical habitat designation 
should broadly identify those areas that we believe are essential to 
the conservation of the species. The comments we received in response 
to the proposal suggested that we should define critical habitat in a 
more specific and precise manner. Further, some of the commenters 
believed that our proposed designation was not consistent with the 
Act's definition of critical habitat (see Summary of Comments and 
Recommendations section). Therefore, we carefully reviewed the best 
available information to ensure that our approach and the designation 
itself provided the greatest benefit to the eider and met the 
requirements of the Act.
    It is very difficult to determine what area, or areas, of the North 
Slope is essential for the conservation for the species. Ideally, to 
define what is essential for recovery of the Alaska-breeding population 
of Steller's eider we would have information on the historical 
abundance and distribution. The lack of recovery objectives for the 
species also complicates making a determination as to what areas are 
essential for recovery. More importantly, we lack reliable scientific 
data about the habitat preferences of nesting females and females with 
broods. Therefore, we are currently unable to ascertain why females 
nest in some areas, but not in another that appear to be similar. 
However, we can use the actual distribution of a species as evidence of 
which areas have the

[[Page 8858]]

habitat features essential to the conservation of the species, even if 
we do not have sufficient information to describe precisely what 
discriminates those areas from other similar areas that lack the 
essential feature.
    For example, the regularity of use, combined with the density, 
number, or proportion of the population that occupies an area, may be 
indicative of an area's importance. Thus, we evaluated all available 
information on distribution to identify areas of concentration under 
the assumption that areas regularly used by dense aggregations, large 
numbers, or a high proportion of the population are likely to be more 
important to the species. In order to correctly interpret these data, 
we requested that eider experts review the available distributional 
information and provide their individual expert opinions on what is 
essential for recovery. Finally, we scrutinized all comments received 
during the public comment period for relevant information or opinion on 
this topic (we specifically invited comment on what areas are essential 
for recovery; see 65 FR 13273).
    Our best understanding of the bird's range on the North Slope comes 
from annual aerial waterfowl surveys that sample the Arctic Coastal 
Plain. These data show that observations of the species, although scant 
in number, are very widely distributed across the Arctic Coastal Plain 
west of the Colville River (Quakenbush et al. 1999; Martin 2000a). With 
the exception of near the village of Barrow, at the northernmost point 
of Alaska, there are no concentration areas where the number or density 
of Steller's eiders is notable on a regional scale. Similarly, with the 
exception of Barrow, there are no areas where Steller's eiders have 
been detected regularly, suggesting the species occurs intermittently 
over most of its North Slope range. A gradient in density of 
observations is detectable, however, with the highest density occurring 
near Barrow. Approximately 10 percent of the total observations 
occurred within a few miles of Barrow, an area that comprises 1 percent 
of the species' range on the North Slope. Density declines with 
distance from Barrow, with approximately 20 percent of the observations 
occurring within 5 percent of the range, 50 percent occurring within 
about 30 percent of the area, and 70 percent of the observations 
occurring within 57 percent of the species' current range. Thus, 
although Steller's eiders occur over a vast area on the North Slope, 
the available data suggest that the Barrow area is the core of the 
species' North Slope breeding distribution, with density generally 
decreasing as distance from Barrow to the south, east and west, 
increases.
    This conclusion, however, does not clearly identify what specific 
area or areas are essential for the species' conservation. Assuming 
that density correlates with importance for conservation, the area near 
Barrow is likely most important to the species, and the importance 
decreases with distance from this core area. We believe that this core 
area near Barrow, where density and regularity of breeding appear to be 
notably higher than elsewhere, is essential for the Steller's eider's 
conservation. However, this area encompasses only a small proportion of 
the species' range (about 1 percent) and numbers (about 10 percent) on 
the North Slope. Thus, it is likely that this area alone is inadequate 
to support recovery, and the area considered to be essential must 
include additional area. However, adding additional area results in 
including incrementally more locations where the species has been 
observed but those locations are separated by increasingly more 
intervening area where no Steller's eiders have ever been observed. 
During aerial surveys that sample the Arctic Coastal Plain, only 136 
records of Steller's eiders have been obtained over the entire 11-year 
aerial survey record, an average of about 12 observations per year. The 
combined area sampled over 11 years totaled about 933,000 km\2\, so on 
average, one Steller's eider was detected per 6,860 km\2\ surveyed. 
This average is lower further from Barrow; outside of the 30 percent of 
the species' range nearest to Barrow where about half of the 
observations have occurred, detections have averaged about one per 
10,000 km\2\ surveyed.
    The specificity with which we can designate critical habitat is 
constrained by the limited information currently available (see State 
of Knowledge of the Steller's Eider section). Nine Steller's eider 
experts provided six different opinions on what area is required to 
conserve the species, ranging from all of the species' currently known 
range to none (based on inadequate data), with four intermediate 
variations intended to capture different proportions of the recent 
sightings. Although we specifically invited comment on where boundaries 
delimiting this area should be drawn, few commenters provided 
information or opinion on this topic. Two commenters suggested that the 
species' entire range, as defined by all known historical and recent 
observations, is essential for recovery, while numerous others 
contended that our proposed critical habitat boundaries were 
inappropriate and went well beyond the Act's definition of critical 
habitat. Others suggested that the lack of recovery criteria and 
paucity of hard data preclude a science-based determination of what 
area is essential. Unfortunately, none of the information presented 
helped us in determining which specific areas were essential to the 
conservation of the Steller's eider because each was based on 
assumptions of eider biology that may or may not be confirmed in future 
scientific studies.
    Nonetheless, the Act requires us to identify areas to be designated 
as critical habitat based upon the best available information. However, 
the relative benefits to the species of such a designation must also be 
weighed in our decision as to where to designate critical habitat. 
Subsection 4(b)(2) of the Act allows us to exclude areas from critical 
habitat designation where the benefits of exclusion outweigh the 
benefits of designation, provided the exclusion will not result in the 
extinction of the species.
    The benefits of including lands in critical habitat are often 
relatively small. The principal benefit of any designated critical 
habitat is that activities that may affect it require consultation 
under section 7 of the Act. Such consultation would ensure that 
adequate protection is provided to avoid adverse modification of 
critical habitat. However, it is important to note that, as a result of 
the Alaska-breeding population of Steller's eider being listed as a 
threatened species, we already consult on activities on the North Slope 
that may affect the species. While these consultations do not 
specifically consider the issue of adverse modification of critical 
habitat, they address the very similar concept of jeopardy to the 
species. Under most circumstances, consultations under the jeopardy 
standard will reach the same result as consultations under the adverse 
modification standard. Implementing regulations (50 CFR Part 402) 
define ``jeopardize the continued existence of'' and ``destruction or 
adverse modification of'' in virtually identical terms. Jeopardize the 
continued existence of means to engage in an action ``that reasonably 
would be expected * * * to reduce appreciably the likelihood of both 
the survival and recovery of a listed species.'' Destruction or adverse 
modification means an ``alteration that appreciably diminishes the 
value of critical habitat for both the survival and recovery of a 
listed species.'' Common to both definitions is an appreciable 
detrimental effect on both survival and recovery of a listed species, 
in the case of critical

[[Page 8859]]

habitat by reducing the value of the habitat so designated. Thus, 
actions that result in an adverse modification determination are nearly 
always found to also jeopardize the species concerned, and the 
existence of a critical habitat designation does not materially affect 
the outcome of consultation. Additional measures to protect the habitat 
from adverse modification are not likely to be required.
    Since the Alaska-breeding population of the Steller's eider was 
listed in 1997, we have consulted with Federal agencies on a variety of 
actions to evaluate impacts to the species on the North Slope. In most 
cases, the consultations have determined that the actions would not 
adversely affect Alaska-breeding population of the Steller's eiders 
because the projects occurred during seasons when the eiders are absent 
and no permanent impact to habitat would result or because only a 
minimal amount of habitat would be affected or would occur in areas 
where the species occurs at low densities. In only a few cases have we 
determined that a proposed project included habitat alterations that 
might adversely affect Alaska-breeding population of Steller's eiders. 
Our biological opinions on these consultations provided reasonable and 
prudent measures designed to minimize the incidental take of the 
proposed projects on Alaska-breeding population of Steller's eiders. 
When applicable, the reasonable and prudent measures included 
provisions to minimize the proposed project's impact to habitat. 
Therefore, because of the species' abundant habitat on the North Slope 
and the protections provided though the current consultation process, 
we can envision no benefit that critical habitat designation would have 
imparted in the consultations conducted to date. Furthermore, we have 
considered the Steller's eider's conservation needs, and we believe 
that future section 7 consultations on any proposed action on the North 
Slope that would result in an adverse modification conclusion would 
also result in a jeopardy conclusion. Thus, the principal regulatory 
benefit from a critical designation for the listed population of 
Steller's eider on the North Slope is expected to be small.
    There are also educational benefits associated with designation as 
critical habitat, such as informing the public which areas are 
important for the long-term survival and conservation of the species. 
Critical habitat could also potentially foster a sense of ownership for 
the resource, encouraging concerned individuals to act as caretakers of 
important habitat. However, such benefits are largely negated by our 
inability to identify specific areas (other than the area around 
Barrow) on the North Slope that are essential to conservation of the 
species (i.e., providing meaningful educational information is 
dependent upon the ability to provide meaningful information on the 
conservation needs of the species). Furthermore, we have been working 
closely with North Slope residents for years in order to engender 
support for eider conservation. We have worked with the North Slope 
Borough on cooperative research, survey, and educational efforts for 
Steller's eiders since 1991, six years prior to the species' listing 
under the Act. We are currently engaged in several cooperative efforts 
to alleviate threats and develop a long-term conservation strategy to 
protect Steller's eider habitat. Because these efforts were under way 
before critical habitat designation was proposed (and before the 
species was listed, in some cases), we are certain that North Slope 
residents and their local governments are well aware of the species' 
plight and the need to address threats and protect important habitat. 
Likewise, most Federal projects on the North Slope are conducted, 
funded, or permitted by relatively few Federal agencies. As a result, 
the Federal agencies involved with activities on the North Slope are 
aware of the Alaska-breeding population of the Steller's eider's 
threatened status and the need to consult, and additional educational 
benefits would be very limited. For all these reasons, then, we believe 
that designation of critical habitat has little educational benefit on 
the North Slope.
    In contrast, the benefits of excluding the North Slope from 
critical habitat designation appear to be greater than the benefits of 
including it. We acknowledge that some portion of the proposed North 
Slope unit is essential to the recovery of the species. Moreover, we 
believe that these lands may require special management considerations 
and protections given the extent of oil and gas exploration and 
development has occurred in the area and may reasonably be anticipated 
in the future. However, to designate an area at this time, without a 
more reliable biological basis, would likely convey an inaccurate 
message about the size and location of the area needed for recovery. We 
believe that to designate a small area, such as that near Barrow, would 
exclude considerable habitat that will likely ultimately prove to be 
important to the species. Conversely, to designate a significantly 
larger area would undoubtedly result in the designation of considerable 
area where the species has never been observed and that may not contain 
essential habitat features. We believe there are strong implications 
regarding habitat importance that are associated with critical habitat 
designation. Delineating critical habitat on the North Slope at this 
time may mislead Federal agencies and others wishing to carry out 
activities on the North Slope about the areas that are truly essential 
to the recovery of the species. Although we have adequate information 
to delineate other areas as being essential for Steller's eiders at 
this time, we do not believe that we currently have adequate 
information to do so on the North Slope.
    One potential benefit of excluding an area from a critical habitat 
designation is that doing so can foster unique conservation efforts. 
The North Slope Borough (Borough) has taken a leadership role in such 
an effort for conserving Steller's eiders. The Borough invited the 
Service to join them in eider studies in 1991, six years before 
listing, and subsequently commented in support of listing at the time 
the species was proposed to be classified as threatened. The Borough 
has provided funds, logistic support (particularly housing and 
laboratory space) and personnel for studies at Barrow, without which 
most of the work accomplished to date would have been impossible. The 
Borough has served as an essential liaison to the local community, 
facilitating access to private lands otherwise closed to investigation, 
and involving local citizens in research and educational programs. The 
Borough has consistently believed that conservation within their 
jurisdiction could best be accomplished in the absence of a critical 
habitat designation, and refraining from designation in the Barrow area 
would be the best way to encourage the continuation and expansion of 
our mutual conservation efforts. The local-Federal partnership approach 
has resulted in considerable progress on conservation of Steller's 
eiders and their habitat, and provides substantial incentive for all 
parties to avoid altering the existing cooperative relationship.
    Compared with all other portions of the breeding range, the 
greatest potential for future take (from all sources) occurs in the 
immediate vicinity of Barrow, because of the relatively high density of 
Steller's eiders and intensity of human activity. With the support of 
the Borough, the Service has initiated a conservation planning effort 
for Barrow with the goal of maintaining or increasing the number of 
Steller's eider breeding pairs and their productivity. The plan is 
envisioned as a

[[Page 8860]]

comprehensive package that will combine elements of habitat 
preservation on private lands held by the village corporation, 
community-wide education and outreach, and research/monitoring. The 
success of this effort depends on the continued cooperation of the 
Borough and local landowners. We believe that not designating critical 
habitat in the Barrow region will foster unique conservation 
partnerships that are essential to the conservation of the species.
    In summary, at this time the benefits of including the North Slope 
in critical habitat for the Steller's eider include minor, if any, 
additional protection for the eider and would serve little or no 
educational functions. The benefits of excluding the North Slope from 
being designated as critical habitat for the Steller's eider include 
the preservation of a unique local-Federal partnership that we believe 
is essential to future conservation actions, and elimination of the 
negative effects that we believe would result from a designation based 
on the limited biological information currently available to us. We 
have determined that the benefits of exclusion of the North Slope from 
critical habitat designation outweigh the benefits of delineating 
critical habitat on the North Slope. Our conclusion with respect to 
this balancing is made in the context of designating other areas as 
critical habitat for the Steller's eider. Not only are we designating 
marine areas, in which Steller's eider populations are more 
concentrated and hence more vulnerable to a single adverse action, but 
we are also designating breeding habitat in the Y-K Delta. The 
differing facts relating to those areas lead to different results under 
the balancing required by section 4(b)(2). Furthermore, we have 
determined that excluding the North Slope will not result in the 
extinction of the species. Consequently, in accordance with subsection 
4(b)(2) of the Act, these lands have not been designated as critical 
habitat for the Steller's eider.
    We will continue to protect occupied breeding habitat on the North 
Slope as appropriate through section 7 consultations, the section 9 
prohibition on unauthorized take, and other mechanisms. We will expand 
our conservation efforts with the Native community, industry, local 
governments, and other agencies and organizations on the North Slope to 
address the recovery needs of the eider. Additionally, we will soon 
complete the development of a Steller's eider recovery plan which will 
include the identification and implementation of recovery actions. We 
will continue our efforts to document the distribution and abundance of 
Steller's eiders on the North Slope and research into the factors 
causing decline. We will continue our efforts to develop a visibility 
correction factor for the species, which will be integral to developing 
abundance estimates. Further, we will continue to investigate the 
breeding habitat needs of the Steller's eider on the North Slope and to 
improve our ability to delineate any areas essential to the 
conservation of the species. Our FY 2001 budget included $600,000 
earmarked by Congress to fund work by the Alaska Sea Life Center (ASLC) 
and the Service on recovery actions for the spectacled and Steller's 
eiders, including the development of better information upon which to 
base critical habitat delineations. We will work closely with the ASLC 
to identify the studies that would be most helpful. In particular, we 
will seek studies that would provide information that will help us to 
identify the habitat needs of both eider species, and we will seek the 
assistance of our partners in carrying out such studies.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these (or other) areas 
compared to the benefits of including them in the critical habitat 
designation, we may revise this final designation accordingly. 
Similarly, if new information indicates any of these areas should not 
be included in the critical habitat designation, we may revise this 
final critical habitat designation. If, consistent with available 
funding and program priorities, we elect to revise this designation, we 
will do so through a subsequent rulemaking.

Unit 1: Yukon-Kuskokwim Delta Nesting Unit (Proposed Unit 2)

    The proposed Yukon-Kuskokwim Delta Nesting Unit encompassed 
approximately 3,114 km\2\ (1,202 mi\2\) on the outer coastal zone of 
the central Y-K. The boundaries of the proposed unit were drawn to 
encompass historical (pre-1970s) and recent nest sites and intervening 
areas. The boundaries of the Yukon-Kuskokwim unit have been modified 
from those proposed to reflect further analysis of topography 
information from large scale (1:63,360 scale) maps, information from 
biologists with extensive field experience in the area, and the advice 
of eider experts. We excluded land that appeared to be over 7.6 m (25.0 
ft) in elevation, and areas that field biologists described as not 
suitable for eiders (e.g., an area outside of the vegetated intertidal 
zone). Field reconnaissance indicates that the plant communities found 
on areas above 7.6 m in elevation do not provide the habitat thought to 
be used by Steller's eiders in the Y-K Delta. Further, no known 
historical or recent nest sites occur in the proposed critical habitat 
that has been excluded from this final rule. Therefore, we believe that 
the excluded area is not essential to the conservation of the species. 
The proposed area not included in this final rule is 55,359 ha (136,792 
ac), a 17.7 percent reduction in total area.
    Definitive population trend information was lacking at the time 
this species was listed (62 FR 31748), but population decline was 
inferred from an apparent contraction of range, particularly in western 
Alaska. The recovery plan, including recovery goals, is still in 
preparation. It is reasonable, however, to predict that re-
establishment of a viable breeding population on the Y-K Delta will be 
an element of the plan, given that the decision to list the species was 
based, to a large extent, on its near-disappearance from the Y-K Delta. 
Increasing the abundance of the Y-K Delta subpopulation will likely 
decrease the listed, Alaska-breeding population's vulnerability to 
extirpation; therefore we consider the habitat contained within this 
unit essential to the conservation of the species.
    We believe that special management considerations and protections 
may be needed for the essential features (constituent elements) found 
within Unit 1, because lead shot present in the environment is 
affecting the quality of the species habitat and poses a continuing 
threat to the species.

Proposed Units 3-9: Marine Units

    The following units in Alaskan marine waters were proposed as 
critical habitat:

------------------------------------------------------------------------
                                                       Area    Shoreline
                        Unit                          (km\2\)     (km)
------------------------------------------------------------------------
Nunivak Island.....................................       205        612
Kuskokwim Bay......................................    12,848        730
Alaska Peninsula--North Side.......................     2,008      1,029
Eastern Aleutians..................................       892      2,397
Alaska Peninsula--South Side.......................     3,420      5,344
Kodiak Archipelago.................................     1,344      3,902
Kachemak Bay/Ninilchik.............................     1,142        444
------------------------------------------------------------------------

    The majority of the proposed marine units were eliminated from this 
final rule. The four units that are designated as critical habitat are 
subsets of the proposed Kuskokwim Bay and North Side of the Alaska 
Peninsula units. The designated units and their areas are:

[[Page 8861]]



------------------------------------------------------------------------
                                                       Area    Shoreline
                        Unit                          (km\2\)     (km)
------------------------------------------------------------------------
Kuskokwim Shoals...................................     3,813        184
Seal Islands.......................................        63        104
Nelson Lagoon (including portions of Port Moller          533        238
 and Herendeen Bay)................................
Izembek Lagoon.....................................       363        297
------------------------------------------------------------------------

    As noted previously, we will designate as critical habitat only 
those specific areas that are essential for the conservation of the 
species. As with the North Slope and Y-K Delta, lack of information on 
Steller's eiders greatly complicates designation in marine areas as 
well. One eider expert noted that the uncertainty surrounding Steller's 
eider marine ecology and distribution is at least an order of magnitude 
greater than that concerning breeding areas. In general, the best 
information on Steller's eider marine ecology comes from areas where 
the species aggregates in large numbers, such as Izembek and Nelson 
lagoons, and where repeated surveys have been conducted for many years. 
There is little or no information from other areas within the species' 
extensive marine range, where surveys have been sporadically or never 
conducted. Furthermore, Alaska-breeding Steller's eiders, which this 
critical habitat designation is intended to protect, are 
indistinguishable from the much more-numerous Russia-breeding Steller's 
eiders during the non-breeding season. Therefore, our understanding of 
distribution may be incorrect if the listed Alaska-breeding population 
tends to concentrate in one or more specific portions of the species' 
broader marine range.
    Despite the uncertainty surrounding Steller's eider marine 
distribution and ecology, there is one striking difference between 
breeding and non-breeding season distribution. During the breeding 
season, Steller's eiders occur at very low and relatively even 
densities whereas there is a tremendous density gradient in marine 
areas during the non-breeding season. Although the species occupies a 
huge range during the non-breeding season, most Steller's eider 
concentrate in a few areas, with tens of thousands occupying a few 
square miles in some cases. Thus, despite the difficulty in determining 
exactly what specific areas are essential for recovery, the gradient in 
density provides information useful in evaluating relative importance 
of various areas. Clearly, those areas where large concentrations occur 
are more important, and the birds more vulnerable because small-scale 
habitat impacts could potentially affect a significant proportion of 
the population. Therefore, we used the number of birds occurring in 
each area as an indicator of how important that area is to the species. 
This approach was recommended by the eider experts, who identified the 
density or number of birds occupying an area as a useful index of 
importance. Additionally, many commenters, including the Alaska 
Department of Fish and Game, National Audubon Society, and a number of 
local governments, suggested that those areas such as Izembek and 
Nelson lagoons used by large concentrations are clearly essential for 
the species' recovery, whereas there is insufficient information to 
reach conclusions about whether areas with small concentrations are 
essential. As a result, we established a numerical criterion to be used 
in rating relative importance, such that areas regularly used by >5,000 
Steller's eiders and occasionally used by >10,000 are considered to be 
essential for the species' recovery. Although this criterion excludes a 
number of areas used by hundreds or thousands of Steller's eiders, 
given the relative abundance of the Alaska- and Russia-breeding 
populations, it is likely that the vast majority of Steller's eiders 
throughout their marine range are not members of the listed population.
    There is also considerable uncertainty over whether the Alaska-
breeding population uses all portions of the species' broad range in 
Alaskan marine waters or concentrates in one or a few portions of that 
range. Until last year, 2000, the only available information on the 
Alaska-breeding population's marine distribution consisted of a few 
band recoveries showing that some individuals that nested near Barrow 
molted in Izembek or Nelson lagoons. These observations were not 
surprising given that surveys show that the vast majority of Steller's 
eiders molting in Alaskan waters do so in these lagoons (Jones 1965, 
Petersen 1981). Satellite telemetry provided new information last year 
when three individuals that bred on the North Slope were tracked during 
the molt period; two are believed to have molted near the Kuskokwim 
Shoals and one molted near the Seal Islands (Martin 2000b). Although 
the sample size is very small, these observations were somewhat 
surprising in that all three individuals molted in areas thought to 
support comparatively small molting populations (limited survey data 
showed that about 5,000 may molt near the Kuskokwim Shoals and 5,000-
10,000 may molt at Seal Islands). Thus, these observations suggest that 
the listed Alaska-breeding population may not mix randomly with the 
Russia-breeding population during the non-breeding season. As a result, 
we established a second criterion to be used such that only those areas 
known to be used by the listed Alaska-breeding population would be 
considered essential.
    Therefore, recognizing the limitations of our understanding of the 
listed population's use of marine waters in Alaska, we have designated 
as critical habitat those areas clearly demonstrated to be of 
importance to Alaska-breeding Steller's eiders by the currently 
available information. To this end, we designate as critical habitat 
those areas that meet the following two criteria: (1) They are 
regularly used by a significant concentration of Steller's eiders, 
defined as ~5,000 birds in most years and >10,000 in <gr-thn-eq>1 year; 
and (2) they are known to be used by individuals from the listed, 
Alaska-breeding population. Additionally, because these areas are used 
by significant numbers of Steller's eiders, we believe that special 
management considerations or protection may be needed to conserve the 
essential habitat features (constituent elements) found there. As a 
result of the dense aggregations occurring in these areas, a relatively 
small amount of habitat perturbation as might be caused by even a small 
oil spill could affect a significant number of Steller's eiders and 
possibly a significant proportion of the listed population. Therefore, 
we believe these areas meet the definition of critical habitat. The 
following four areas meet these criteria:

Unit 2: Kuskokwim Shoals

    The Kuskokwim Shoals Unit is a modified subunit of the proposed 
Kuskokwim Bay Unit (Unit 4). The proposed unit contained two disjunct 
sections, the north side of Kuskokwim Bay and south side of Kuskokwim 
Bay. The designated unit differs from the proposed unit in that the 
south side of Kuskokwim Bay portion has been deleted and the boundaries 
of the north side of Kuskokwim Bay have been refined.
    The Kuskokwim Shoals is known to be of importance to Steller's 
eiders during molt and for staging during spring migration. Use during 
molt is indicated by two surveys in 1996 and 2000 which found 5,439 and 
5,101 Steller's eiders in this area, respectively (although there were 
differences in methodologies and flight paths between the two surveys) 
(McCaffery 2000). Additionally, satellite telemetry showed that two of 
three breeding Steller's eiders outfitted with transmitters at

[[Page 8862]]

Barrow in 2000 molted in this area, suggesting that the listed 
population may selectively use this area, making its importance 
disproportionately greater than what is indicated by the number of 
birds molting there.
    A series of surveys has shown that large numbers of Steller's 
eiders stage near the Kuskokwim Shoals during spring migration, 
apparently foraging along the edge of the extensive shorefast ice that 
lingers into late April in this region. The maximum number of Steller's 
eiders detected in this area during aerial surveys conducted during six 
years between 1992 and 2000 varied from approximately 5,000 to 42,000 
(Larned et al. 1994; Larned 1994, 1997, 1998, 2000).
    The boundaries of the Kuskokwim Shoals unit have been modified from 
those for the northern portion of the proposed Kuskokwim Bay Unit to 
reflect additional analysis of aerial survey data, bathymetry 
information, and a comment from the Groundfish Forum, a commercial 
fishing association, which suggested that the proposed unit included 
waters deeper than those believed to be used by Steller's eiders. The 
Groundfish Forum pointed out that although we identified as suitable 
habitat waters <ls-thn-eq>10 m (30 feet deep), much of the western edge 
of the proposed unit exceeded this depth. Unfortunately, bathymetry 
data from this region are scant, making fine-scaled analysis of water 
depth impossible, so we more closely examined the available aerial 
survey data to evaluate whether the boundaries should be adjusted to 
more closely fit the area known to be used by Steller's eiders. As a 
result of this analysis, we modified the boundaries, eliminating 
considerable area on the offshore side of the proposed unit where no 
flocks of Steller's have been detected during aerial surveys.
    None of the southern portion of the proposed Kuskokwim Bay Unit is 
designated as critical habitat. Although between 4,126 and 6,271 
Steller's eiders have been counted there during spring staging surveys, 
the birds were widely separated in disjunct bays and shoreline 
segments, with no individual segment being used by >5,000 birds. 
Additionally, the second part of this criterion was not met in that in 
no years were >10,000 detected. Finally, the second criterion, 
documented use by the listed population, was not met. Therefore, we 
determine that the available information does not support designating 
this area as essential for the recovery of Alaska-breeding Steller's 
eiders at this time.

Unit 3: Seal Islands

    The Seal Islands Unit is one of several disjunct bays, lagoons, and 
nearshore areas included in the proposed North Side of the Alaska 
Peninsula Unit. The boundaries of the Seal Islands Unit are left 
unchanged from those described in the proposed rule.
    Steller's eiders concentrate in the Seal Islands lagoon in both 
spring and fall. Although the area has been inadequately surveyed for 
Steller's eiders, ``thousands'' are believed to molt in this lagoon 
(Dau 1999a). Emperor goose surveys, although designed and timed to 
optimally inventory other species, have detected an average of 5,661 
and maximum of 16,200 Steller's eiders in the lagoon during autumn 
(late September/early October) and an average of 1,349 and maximum of 
10,444 during spring (late April/early May). Additionally, between 
2,015 and 7,180 were counted in late April during Steller's eider 
spring migration surveys, further indicating the area's importance to a 
large number of Steller's eiders. Finally, satellite telemetry data 
showed that one of three Steller's eiders that bred near Barrow in 2000 
and were tracked with satellite telemetry molted in the Seal Islands 
lagoon. Thus, we conclude that the Seal Islands lagoon meets both 
criteria and should be considered essential for the conservation of 
Steller's eiders.

Unit 4: Nelson Lagoon Unit

    The Nelson Lagoon complex, which includes Nelson Lagoon, Herendeen 
Bay, and Port Moller is another subunit contained within the proposed 
North Side of the Alaska Peninsula Unit. The boundaries of the unit 
were modified from those proposed to eliminate portions of Herendeen 
Bay and Port Moller where Steller's eiders have not been detected in 
significant numbers during aerial surveys.
    Use of the Nelson Lagoon complex by huge numbers of Steller's 
eiders is well documented (Jones 1965, Petersen 1981). Repeated surveys 
during molt have counted an average of 39,567 (n=10 surveys) and a 
range of 29,690 to 57,988 (Dau 1999a). Dense aggregations also winter 
in the Nelson Lagoon complex, although ice cover may force them 
elsewhere during variable portions of colder winters. Numbers during 
winter averaged 20,487 with a range of 9,616 to 51,050 (n=17; Dau 
1999b). Large numbers can remain (or possibly rebuild) in late spring 
as well, as 12,000-27,000 have been counted there during Steller's 
eider spring migration surveys. In addition to the very large numbers 
using this lagoon complex annually, banding data have demonstrated that 
Steller's eiders molting in Nelson Lagoon include members of the 
Alaska-breeding population. Therefore, we determine that this area is 
essential for the conservation of Alaska-breeding Steller's eiders.
    Subsequent to publication of the proposed rule, we re-evaluated the 
available survey data to determine if modifying the proposed boundaries 
was warranted. We paid particular attention to the upper reaches of 
Herendeen Bay and Nelson Lagoon because our initial analysis conducted 
in preparation of the proposed rule raised questions about the use of 
these areas that we were unable to answer prior to publishing the 
proposal. Additionally, the Aleutians East Borough, in comments 
submitted during the public comment period, requested that we exclude 
from designation waters with 5 mi (8 km) of the community of Nelson 
Lagoon and the fish processing facility at Port Moller to minimize 
economic impacts to affected communities.
    Data collected during three aerial surveys in 1997-2000 contain GPS 
locational data that allow fine-resolution spatial analysis (previous 
surveys conducted in this area do not). These observations show that 
Steller's eiders occur in dense clusters throughout most of Nelson 
Lagoon, including the area surrounding the community of Nelson Lagoon. 
In these three surveys, 46 flocks with a total of 5,297 Steller's 
eiders were seen within 8 km (5 mi) of the community of Nelson Lagoon, 
and nine flocks with a total of 1,163 Steller's eiders (including one 
flock with 500) were observed within 1.6 km (1 mile) of the community. 
These observations indicate that the waters near the community are used 
by significant numbers of Steller's eiders, and we cannot conclude that 
this area does not contribute significantly to the overall importance 
of the lagoon complex to the species. As a result, we believe that the 
waters near the community of Nelson Lagoon are essential for the 
species' recovery. Furthermore, as explained in the Economic Analysis 
and Summary of Comments and Recommendations sections below, we do not 
believe that designation of critical habitat will have significant 
economic impacts or constrain community development at Nelson Lagoon or 
other communities. Therefore, there is no demonstrated basis for 
excluding these waters from critical habitat designation as a result of 
economic impacts.
    In contrast, further examination of Steller's eider survey data 
shows that

[[Page 8863]]

there are few observations of Steller's eiders in the northeast portion 
of Port Moller near the fish processing facility. Because our intent is 
to designate as critical habitat those areas where the species 
regularly occurs in significant numbers, we have modified the southern 
boundaries of the critical habitat unit in both Herendeen Bay and Port 
Moller to exclude portions of those lagoons where Steller's eiders are 
not regularly seen. Likewise, we have modified the boundary of the 
critical habitat unit to exclude the waters in northeast Port Moller 
where significant aggregations have not been documented. The new 
boundary runs from the eastern tip of Wolf Point on Walrus Island to 
the shoreline 5.5 km (3.4 mi) north of Harbor Point (at the tip of 
Moller Spit). Thus, the designated critical habitat includes the waters 
adjacent to Moller Spit, where aggregations have regularly been 
encountered, but excludes the northeast portion of the lagoon of Port 
Moller, including the fish processing facility at Port Moller (the 
processing facility is approximately 2 km (1.25 mi) outside the 
boundary of the critical habitat unit). An appropriately scaled map 
showing the boundaries of designated critical habitat in this area can 
be acquired by contacting the U.S. Fish and Wildlife Service, Anchorage 
Field Office, 605 West 4th Avenue, Room G-61, Anchorage, AK 99501 
(telephone 907/271-2787 or toll-free 800/272-4174; facsimile 907/271-
2786).

Unit 5: Izembek Lagoon

    As with the previous two units, the Izembek Lagoon Unit is a 
subunit of the proposed North Side of the Alaska Peninsula Unit. The 
boundaries of the Izembek Lagoon Unit are left unchanged from those 
described in the proposed rule.
    Izembek Lagoon is used by dense aggregations of Steller's eiders 
during molt, winter, and spring. Tens of thousands molt there each 
year, with 27 censuses between 1975-1996 averaging 23,300 birds (range 
6,570-79,970; Dau 1999a). Tens of thousands also remain through winter 
in most years, although distribution and numbers are affected by ice 
cover and vary from year to year (Dau 1999). Numbers may build again 
during spring, as up to 79,000 have been counted during goose surveys 
in late April/early May (Dau 1999b). In addition to dense aggregations 
of Steller's eiders regularly occurring at Izembek, band recoveries 
show that the birds molting there include members of the Alaska-
breeding population. Therefore, we determine that Izembek Lagoon meets 
both criteria and is considered essential for the conservation of the 
Steller's eider.
    The remaining units that we proposed as critical habitat, which 
include Nunivak Island, the Eastern Aleutians, South Side of the Alaska 
Peninsula, Kachemak Bay/Ninilchik, and Kodiak Archipelago, do not meet 
the definition of critical habitat based on the criteria that we 
believe best identify the areas essential for the conservation of 
Alaska-breeding Steller's eiders. Although in some cases thousands of 
Steller's eiders have been counted in these areas, none of the areas 
regularly contain >5,000 individuals. The single exception, Port 
Heiden, is apparently used by thousands of Steller's eiders (an average 
cannot be calculated with the currently available data), but use by 
individuals from the Alaska-breeding population has not been 
documented. Therefore, we determine that the available information does 
not demonstrate that any of these areas are essential for the recovery 
of the Alaska-breeding population of the Steller's eider.

Summary of Critical Habitat Designation

    We have designated critical habitat for Steller's eiders in one 
terrestrial and four marine areas: Y-K Delta, Kuskokwim Shoals, Seal 
Islands, Nelson Lagoon (including Nelson Lagoon and portions of Port 
Moller and Herendeen Bay), and Izembek Lagoon. We believe all of these 
areas meet the definition of critical habitat in that they contain 
physical or biological elements essential for the conservation of the 
species and may require special management considerations or 
protection. Designation of these areas will highlight the conservation 
needs of the species, and perhaps increase the degree to which Federal 
agencies fulfill their responsibilities under section 7(a)(1) of the 
Act.
    In accordance with the regulations implementing the listing 
provisions of the Act (50 CFR 424.12(h)), we have not proposed any 
areas outside the jurisdiction of the United States (e.g., within 
Russian waters).
    In addition to the areas that we have designated as critical 
habitat, other areas currently used by Steller's eiders include the 
North Slope and marine waters in western, southwestern, and 
southcoastal Alaska. In addition, there may be other areas used by this 
species that are unknown to us. The best available information did not 
suggest that there is any currently unoccupied habitat that is 
essential to the conservation of the species; therefore, no unoccupied 
critical habitat was designated.
    The areas we have designated as critical habitat are those areas 
that the best available commercial and scientific information indicates 
are essential to the conservation of Steller's eiders. Should 
additional information on the value of any area to Steller's eiders 
become available, we will consider that information in future decisions 
to designate critical habitat.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
states, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
402. Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory. After a species is listed or critical 
habitat is designated, section 7(a)(2) requires Federal agencies to 
ensure that actions they authorize, fund, or carry out are not likely 
to jeopardize the continued existence of such a species or to destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency (action agency) must enter into consultation with us. 
Through this consultation we would ensure that the permitted actions do 
not destroy or adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse

[[Page 8864]]

modification of critical habitat, we also provide reasonable and 
prudent alternatives to the project, if any are identifiable. 
Reasonable and prudent alternatives are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, which are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, which are economically and 
technologically feasible, and that the Director believes would avoid 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on ongoing actions for which formal consultation 
has been completed if those actions may affect designated critical 
habitat.
    Activities on Federal lands that may affect the Steller's eider or 
its critical habitat will require section 7 consultation. Activities on 
private or state lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers (Army Corps) under 
section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., from the Federal Highway Administration, 
Federal Aviation Administration, or Federal Emergency Management 
Agency) will also continue to be subject to the section 7 consultation 
process. Federal actions not affecting listed species or critical 
habitat and actions on non-Federal lands that are not federally funded 
or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may adversely modify such 
habitat or that may be affected by such designation. Activities that 
may result in the destruction or adverse modification of critical 
habitat include those that alter the primary constituent elements to an 
extent that the value of critical habitat for both the survival and 
recovery of the Steller's eider is appreciably reduced. We note that 
such activities may also jeopardize the continued existence of the 
species. Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly adversely affect critical 
habitat include, but are not limited to:
    (1) Draining, filling, or contaminating wetlands and associated 
surface waters;
    (2) Filling, dredging, or pipeline construction in marine waters;
    (3) Commercial fisheries that harvest or damage the benthic or 
planktonic flora or fauna in marine waters;
    (4) Spilling or discharging petroleum or other hazardous 
substances; or
    (5) Discharge of sediment or toxic substances into freshwater 
systems that drain into adjacent nearshore marine waters.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of both the survival and 
recovery of a listed species. Actions likely to result in the 
destruction or adverse modification of critical habitat are those that 
would appreciably reduce the value of critical habitat for both the 
survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to result in the destruction or 
adverse modification of critical habitat would almost always result in 
jeopardy to the species concerned, particularly when the area of the 
proposed action is occupied by the species concerned. In those cases, 
critical habitat provides little additional protection to a species, 
and the ramifications of its designation are few or none. However, if 
occupied habitat becomes unoccupied in the future, there is a potential 
benefit from critical habitat in such areas.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps under section 404 of the Clean Water Act and/or 
section 10 of the Rivers and Harbors Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Regulation of commercial fisheries by the National Marine 
Fisheries Service;
    (4) Law enforcement in United States Coastal Waters by the U.S. 
Coast Guard;
    (5) Road construction and maintenance by the Federal Highway 
Administration;
    (6) Regulation of airport improvement activities by the Federal 
Aviation Administration jurisdiction;
    (7) Military training and maneuvers on applicable DOD lands;
    (8) Regulation of subsistence harvest activities on Federal lands 
by the U.S. Fish and Wildlife Service;
    (9) Regulation of mining and oil development activities by the 
Minerals Management Service;
    (10) Regulation of home construction and alteration by the Federal 
Housing Authority;
    (11) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (12) Construction of communication sites licensed by the Federal 
Communications Commission;
    (13) Wastewater discharge from communities and oil development 
facilities permitted by the Environmental Protection Agency; and
    (14) Other activities funded by the U. S. Environmental Protection 
Agency, Department of Energy, or any other Federal agency.
    All areas designated as critical habitat are within the 
geographical area occupied by the species and contain physical and 
biological features that are likely to be used by Steller's eiders 
during portions of the year. Thus, we consider all critical habitat to 
be occupied by the species. Federal agencies already consult with us on 
activities in areas currently occupied by the species or if the species 
may be affected by the action to ensure that their actions do not 
jeopardize the continued existence of the species. Thus, we do not 
anticipate additional regulatory protection will result from critical 
habitat designation.
    We recognize that designation of critical habitat may not include 
all of the habitat areas that may eventually be determined to be 
necessary for the recovery of the species. For these reasons, all 
should understand that

[[Page 8865]]

critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Summary of Comments and Recommendations

    Our critical habitat proposal was published in the Federal Register 
on March 13, 2000 (65 FR 13262). The proposal requested all interested 
parties to submit comments on the specifics of the proposal including 
information, policy, and proposed critical habitat boundaries as 
provided in the proposed rule. In particular, we sought comments on: 
(1) the reasons why an area should or should not be designated as 
critical habitat; (2) information on the abundance and distribution of 
Steller's eiders and their habitat; (3) what areas are essential for 
the conservation of the species and which areas may require special 
management protection or consideration; (4) current or planned 
activities in proposed critical habitat and their possible impacts on 
proposed critical habitat; and (5) any foreseeable economic or other 
impacts resulting from the proposed designation of critical habitat. 
The comment period was initially open from March 13, 2000, until May 
12, 2000. The comment period was extended on April 19, 2000 (65 FR 
20938), July 5, 2000 (65 FR 41404), and August 24, 2000 (65 FR 51577), 
finally closing on September 25, 2000. We extended the comment period 
on these three occasions to accommodate Alaska Natives, who spend 
considerable time away from their homes engaged in subsistence 
activities. Additionally, we requested comment on the Economic Analysis 
after notifying the public of its availability on August 24, 2000 (65 
FR 51577). This comment period ran concurrently with the last 30 days 
of the comment period on the proposed rule, also closing on September 
25, 2000. The resulting comment period lasted from March 13, 2000, to 
September 25, 2000 (197 days).
    We solicited comments from all interested parties, and we 
particularly sought comments concerning Steller's eider distribution 
and range, whether critical habitat should be designated, and 
activities that might impact Steller's eiders. Notice of the proposed 
rule was sent to appropriate State agencies, borough and local 
governments, Federal agencies, Alaska Native corporations and 
organizations, scientific and environmental organizations, commercial 
fishing and oil industry representatives, and other interested parties. 
In addition, we invited public comment through the publication of 
notices in the following newspapers: Juneau Empire (March 24-27, 2000), 
Fairbanks Daily News-Miner (March 24-26, 2000), Anchorage Daily News 
(March 24-26, 2000), Arctic Sounder (March 23, 2000), Bristol Bay Times 
(March 23, 2000), Dutch Harbor Fisherman (March 23, 2000), and Tundra 
Drums (March 23, 2000).
    We also conducted a series of public meetings to discuss the 
proposal to designate critical habitat for Steller's eiders, and one 
public hearing at which public testimony was accepted (65 FR 46684). 
Meetings to discuss critical habitat designation were held with agency, 
industry, Native and environmental organization representatives at our 
Region 7 Regional Office, Anchorage, AK, on February 1 and 2, 2000; 
with the Association of Village Council Presidents staff in Bethel on 
February 7, 2000; the public and local government representatives in 
Barrow on February 16, 2000; Waterfowl Conservation Committee in Bethel 
AK from February 22-24, 2000; the public in Toksook Bay on February 25, 
2000; the public in Chevak on March 1, 2000; and at the Alaska Forum on 
the Environment in Anchorage on February 9, 2000. Although these 
meetings were conducted prior to publication of the proposal to 
designate critical habitat, the concept of critical habitat, the 
likelihood of proposed critical habitat for Steller's eiders, and the 
process for designation was discussed to encourage public involvement 
and comment after the opening of the comment period. After the proposal 
was published, meetings were held with the Nome Eskimo Community IRA 
Council in Nome on May 5, 2000; the public in Sand Point on September 
18, 2000; and the local tribal council in Sand Point on September 19, 
2000. A series of public informational meetings was held in North Slope 
villages: Nuiqsut on August 21, 2000; Wainwright on August 23, 2000; 
Point Lay on August 24, 2000; and Atqasuk on August 25, 2000. A public 
hearing, at which public testimony was recorded, was held at Barrow on 
August 28, 2000 (65 FR 46684). Notices announcing these North Slope 
meetings and the public hearing were published in advance in the 
Fairbanks Daily News-Miner (July 30, August 2 and 4, 2000), Anchorage 
Daily News (July 30, August 1 and 2, 2000), and Arctic Sounder (August 
3, 10, and 17, 2000). Additionally, the Service met with eider experts 
at the Campbell Creek Science Center in Anchorage, AK on September 21-
22, 2000. After the close of the comment period, public interest 
continued and further informational meetings (at which public comment 
was not sought or accepted) were held with the Kodiak/Aleutians 
Regional Advisory Council on September 27, 2000; and the Bristol Bay 
Regional Advisory Council at Naknek, Alaska on October 13, 2000.
    We also requested six experts on eider biology to peer review the 
proposed critical habitat designation; two submitted comments, which 
have been taken into consideration in developing this final rule.
    We received a total of 334 oral and written comments on the 
proposed critical habitat designation. Fifteen individuals or parties 
submitted oral testimony at the public hearing at Barrow; seven of 
these submitted a written record of their comments. We also recorded 
issues raised by participants at public meetings; these issues were 
recorded but we did not record the number of individuals raising the 
same issue. Comments were received from: representatives of ten Federal 
agencies and one Federally elected official, the State of Alaska and 
three elected state officials or bodies; five Borough governments; 13 
local governments; 25 Native organizations; and 276 individuals, 
private companies, or non-Native organizations. Forty commenters 
expressed support for designating critical habitat; 277 opposed 
designation; and 17 provided information but no position on 
designation. We reviewed all comments received for substantive issues 
and new information on Steller's eiders and critical habitat.
    Comments pertaining to the designation of critical habitat were 
grouped into 4 general issues with 56 specific comments relating to 
critical habitat designation and the economic analysis. The issues, 
comments, and our

[[Page 8866]]

responses are presented in the following summary.

Issue 1: Biological Justification and Methodology

    Comment 1: Many respondents had comments concerning habitat as a 
factor in the species conservation. These included comments that 
habitat is not limiting the species' population size; habitat loss is 
not a threat to the species; loss of breeding habitat did not cause the 
species' decline and is not limiting recovery; and critical habitat is 
not needed for survival and recovery.
    Our response: The information available when Steller's eiders were 
listed in 1997 did not show that habitat loss or degradation was a 
threat to the species. However, it has not yet been proven that habitat 
deterioration has not contributed to the decline of the Steller's eider 
in Alaska. Recent research has shown that ingestion of spent lead shot 
is affecting adult survival in another threatened species, the 
spectacled eider (Somateria fischeri), on the Y-K Delta. Although it 
has not been demonstrated that this has contributed to decline of the 
Steller's eider on the Y-K Delta, there is insufficient information to 
discount the role of this form of habitat degradation in the species' 
decline at this time. Moreover, we do not know to what extent other 
contaminants, predation, and increased human disturbance are degrading 
the quality of eider habitats.
    An examination of threats that are limiting a species survival and 
recovery and to what degree those threats are limiting, are key 
components of our decision of whether a species warrants listing as 
threatened or endangered. For the Steller's eider, that determination 
was made in 1997 when the species was listed. After we decide that a 
species warrants listing, the Act directs us to identify and designate 
critical habitat. For those areas within the current range of the 
species, critical habitat can be any area that contains physical or 
biological features that are essential to the conservation of the 
species and that may require special management consideration or 
protection. For areas outside the current range of the species, 
critical habitat can be any area that is considered essential for the 
conservation of the species; we need not consider whether special 
management consideration or protection is needed. Our evaluation of the 
available information shows that the areas we have designated are 
essential to the species and may require special management 
consideration or protection.
    As for whether critical habitat is needed for survival and 
recovery, the Act obligates us to designate, to the maximum extent 
prudent, those areas that meet the definition of critical habitat. It 
does not require us to determine that the act of designating land as 
critical habitat is a necessary step in ensuring the survival or 
achieving recovery of the species.
    Comment 2: Many respondents stated that no new data are available 
to justify a reversal of the original determination that designating 
critical habitat was not prudent, or to support designation of critical 
habitat as proposed; the reasons for the species' decline are unknown.
    Our response: As discussed above (see ``State of Knowledge of the 
Steller's Eider), we have gathered additional information since the 
listing of this species in 1997. As a result of this new information, 
we now have a better idea of which habitats are essential to Steller's 
eider conservation. Additionally, several of our past determinations 
that critical habitat designation would not be prudent have been 
overturned by courts in recent years (e.g., Natural Resources Defense 
Council v. U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 
1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2nd 1280 
(D. Hawaii 1998)). Although this information is not biological in 
nature, we reassessed the potential benefits of critical habitat 
designation in light of these decisions.
    We believe that new biological information and recent court rulings 
support our conclusion that the designation of critical habitat is 
prudent. Should credible, new information suggest that our designation 
of critical habitat should be modified, we will reevaluate our analysis 
and, if appropriate, propose to modify this critical habitat 
designation. In reaching our current decision, we have considered the 
best scientific and commercial information available to us at this 
time, as required by the Act.
    We agree that the reasons for the species' decline are largely 
unknown (see Proposed Designation of Critical Habitat for the Steller's 
Eider; 65 FR 13268) However, nothing in the Act or its implementing 
regulations limit critical habitat designation to species or situations 
where the factors causing decline are fully understood. This form of 
uncertainty, therefore, does not constitute adequate justification for 
not designating critical habitat.
    Comment 3: Several respondents stated that we need to base our 
decisions on objective studies based on science.
    Our response: We believe that all of the studies that we used as a 
basis for our decisions were scientifically sound and objective. One of 
the challenges that faced us was that the biology, historical usage 
patterns, distribution, and population trend information is not 
complete for Steller's eider, thus we attempted to use the best 
available scientific and commercial information and reasoned 
professional judgment to make our critical habitat determinations. As a 
result of the extended public comment period and extensive number of 
comments received in both written and oral form, we also attempted to 
integrate information provided by the public into this final rule. The 
respondents were not specific in saying which documents or studies they 
felt were non-objective or unscientific. All of the studies that we 
used in our decision-making process are part of our administrative 
record and available for public review.
    Comment 4: A few respondents stated that there were insufficient 
data to describe primary constituent elements.
    Our response: We disagree. In accordance with the regulations, 
primary constituent elements may include, but are not limited to, the 
following: roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dryland, water quality or quantity, host species or 
plant pollinator, geologic formation, vegetation type, tide, and 
specific soil types (50 CFR 424.12). In addition, the regulations state 
that we are to make our determinations based upon the best scientific 
data available (50 CFR 424.12). We believe that we have described the 
primary constituent elements of the different habitats used by this 
species using the best scientific data available. Additional data may 
have allowed us to describe primary constituent elements in more 
detail, but the lack of this additional data does not preclude us from 
describing the primary constituent elements using the information that 
we have.
    Comment 5: Several commenters noted that critical habitat 
designation could hamper recovery by suggesting that threats to the 
bird are located in one place when they are actually located elsewhere.
    Our response: As we have previously stated, we recognize that 
designation of critical habitat may not include all of the habitat 
areas that may eventually be determined to be necessary for the 
recovery of the species. Therefore, it is very important to understand 
that critical habitat designations do not signal that habitat outside 
the designation is unimportant or may not

[[Page 8867]]

be required for recovery. However, even given that limitation, we do 
not believe that our final critical habitat designation will hamper the 
recovery of the Steller's eider.
    Comment 6: One respondent stated that our proposals did not 
encompass enough of the species' range to ensure recovery, and that 
areas proposed may actually be population sinks.
    Our response: The proposed rule included nearly the entire current 
range of the Steller's eider (excluding migratory corridors). We do not 
believe that areas outside of the proposed borders would have 
contributed markedly to the species' survival and recovery. Our final 
rule excludes large portions of the proposal. However, this is not 
meant to imply that habitat outside the designation is unimportant or 
may not be required for recovery.
    With the exception of near Barrow, we have very little information 
on Steller's eider productivity with which to evaluate whether areas 
are population sinks (areas where mortality exceeds production, but 
where populations are maintained through immigration from other areas). 
Even at Barrow, where the species occurs at a comparatively higher 
density than elsewhere on the North Slope and a road network and other 
facilities make them easier to study, the data are inadequate to 
evaluate reproductive performance and survival at this time. 
Unquestionably, this will be one area of interest and research as a 
recovery plan for the species is developed and implemented.
    Comment 7: One commenter suggested that critical habitat should 
include additional areas beyond those proposed, including the North 
Slope east of the Colville River, portions of Saint Lawrence Island, 
Nelson Island, Nunivak Island, the Alaska Peninsula, inland Y-K Delta, 
St. Michael, and the Seward Peninsula. Marine areas that should be 
designated include waters near the Pribilof Islands, south side of the 
Kenai Peninsula, and Prince William Sound.
    Our response: Although there are records of Steller's eiders 
occurring and/or nesting in each of the areas mentioned in this 
comment, records are widely separated spatially and temporally. On the 
North Slope, there are a combined total of three nest records from east 
of the Colville River; there is one nest record from Saint Lawrence 
Island; one account from 1924 saying the ``species nests'' on Nelson 
Island; no nest records from Nunivak Island; one from the Alaska 
Peninsula (in 1872); none from inland Y-K Delta; none from St Michael; 
and one from the Seward Peninsula (in 1879) (Quakenbush et al. 1999). 
The species also occurs irregularly or in very low numbers in the 
marine areas mentioned: Steller's eiders are not detected during most 
sea duck surveys near the Pribilof Islands (A. Sowls, Service, pers. 
comm. 1999); 0-11 per year have been seen on the south side of the 
Kenai Peninsula (with none seen in 9 of 12 years); and 0-68 per year 
have been seen (with none in 10 of 20 years) in Prince William Sound 
(Service 1998). Although we acknowledge that the species may occur (or 
may have historically occurred) in each of these areas, the patterns of 
low and irregular use are inadequate to conclude that these areas are 
essential for the conservation of the Alaska-breeding population of the 
Steller's eider.
    Comment 8: One respondent stated that commercial fishing operations 
were not responsible for the decline in eider populations, and 
therefore critical habitat should not restrict commercial fishing.
    Our response: We are not aware of data indicating that commercial 
fisheries are or are not responsible for declines in eider populations. 
We note that, with respect to commercial fisheries, possible ways in 
which eiders or their habitat may be affected now or in the future 
include: (1) large numbers of small fuel and oil spills, including the 
practice of discharging oily bilge water; (2) fundamental changes in 
the marine ecosystem brought about by harvest or overharvest of fish 
and shellfish; (3) vessel strikes in which eiders collide with fishing 
vessels using bright lights during inclement weather; (4) the 
alteration of the benthic environment by trawling gear. Again, we do 
not mean to imply that the commercial fishing industry is currently 
affecting the species in these ways. We currently lack the information 
we need to determine whether fisheries are affecting Steller's eiders. 
Further analysis of potential effects of the fishing industry on 
Steller's eiders will be considered in future section 7 consultations 
with the National Marine Fisheries Service on fisheries management 
issues.
    Comment 9: A few respondents note that eiders are tolerant of 
development, implying that designation of critical habitat in these 
areas is unnecessary.
    Our response: We agree that Steller's eiders occur in developed 
areas. Steller's eiders regularly nest on the outskirts of the village 
of the Barrow. Additionally, large numbers occur in or near marine 
harbors in southwestern Alaska during the non-nesting season. However, 
the presence of a species near developed areas is not proof that 
development does not adversely affect that species. Development may 
affect species in a number of ways, such as altering distribution or 
decreasing productivity or survival rates. At this time, the effects of 
development on Steller's eiders are unknown.
    Comment 10: Four local governments stated that the ``broad brush'' 
proposed designation of critical habitat goes well beyond the limited 
criteria set forth for identifying critical habitat. For example, the 
Service proposed to define critical habitat in marine units as waters 
up to 30 feet in depth with a substrate that supports either eel grass 
beds or invertebrate fauna to allow feeding by the birds, yet the 
proposed critical habitat included significant waters that far exceed 
that definition.
    Our response: The proposed marine critical habitat units do contain 
considerable marine waters that exceed 30 feet in depth or that provide 
substrate unsuitable to support benthic forage for Steller's eiders. 
The scale at which the critical habitat determinations are made limit 
our ability to finely map only those areas that are 30 feet in depth or 
less. Moreover, information available on water depth is not wholly 
comprehensive in its coverage, and the seafloor is not uniform in 
contour. However, within the boundaries of described critical habitat 
units, only that area that contains the primary constituent elements 
(waters <ls-thn-eq> 30 feet in depth) is critical habitat. Therefore, 
all waters > 30 ft (9m) in depth are not critical habitat, even though 
they may be within the broader boundaries of a critical habitat unit. 
We note, however, that because the area designated as critical habitat 
is greatly reduced from that proposed, the vast majority of marine 
waters of concern to these commenters have been deleted from this final 
rule.
    Comment 11: The Kodiak Island Borough commented that the entire 
coastline of the Kodiak Archipelago was included in the proposed 
critical habitat despite considerable variation in habitat type and 
quality.
    Our response: The proposed Kodiak/Afognak Island Unit was removed 
from this final rule. It is likely that the habitat heterogeneity 
referred to by the Kodiak Island Borough in part explains the lack of 
identified large aggregations of Steller's eiders near the archipelago.
    Comment 12: Two respondents (the Aleutians East Borough and City of 
Unalaska) expressed concern that the amount of marine waters proposed 
as critical habitat is overly broad. To designate such a large area 
must be based upon the assumption that the

[[Page 8868]]

Alaska-breeding population occurs separately from the Russia-breeding 
population, in one as yet undefined location. To designate the entire 
range of the species in Alaska because the Alaska-breeding population 
may concentrate in a subset of this range is overly protective.
    Our response: The threatened Alaska-breeding population is thought 
to occur during the non-breeding season in southwestern Alaskan marine 
waters, as does the unlisted Russia-breeding population. Because 
individuals from the two populations are visually indistinguishable, it 
is largely unknown whether the less-numerous Alaska-breeding population 
disperses throughout the range of the more-numerous Russia-breeding 
population or concentrates in one or more distinct areas within this 
broad region. This greatly complicates identifying which areas are 
essential for the conservation of the listed, Alaska-breeding 
population.
    The uncertainty over the distribution of the Alaska-breeding 
population is the primary factor causing us to greatly reduce the area 
designated as critical habitat from that proposed. As explained in the 
Rationale for the Final Designation section, we restricted our 
designation to areas where very large aggregations of Steller's eiders 
regularly occur. We note that in these areas banding or telemetry data 
show that the individuals from the listed population occur. We believe 
the criteria we established for evaluating the significance of habitat 
utilized by the species are appropriate and helped to identify those 
areas known to be essential to the listed population.
    Comment 13: Several local governments in southwest Alaska asked 
that the Service not designate critical habitat within 5 miles of 
established communities in order to alleviate economic impacts and to 
allow community development to proceed unaffected by critical habitat.
    Our response: Because many of the areas proposed as critical 
habitat for Steller's eiders have not been designated as such in this 
final rule, only two communities or developed sites are within or 
proximal to critical habitat. The community of Nelson Lagoon and a 
seasonally operated fish processing facility at Port Moller were within 
the boundaries of the proposed Nelson Lagoon Critical Habitat Unit. The 
boundaries of the Nelson Lagoon Critical Habitat Unit were modified to 
reflect more detailed spatial analysis of Steller's eider observation 
data conducted subsequent to publication of the proposed rule. Because 
few Steller's eiders have been observed in northeast Port Moller, the 
boundary has been modified and the fish processing facility is now 
approximately 2 km (1.25 mi) outside the northeastern boundary. 
However, the waters near the community of Nelson Lagoon are used by 
significant numbers of Steller's eiders, and we conclude that they 
contribute significantly to the overall importance of the lagoon 
complex to the species. As a result, we believe that the waters near 
the community of Nelson Lagoon are essential for the species' recovery. 
Furthermore, we do not believe that the designation of critical habitat 
will have significant economic impacts or constrain community 
development at Nelson Lagoon or other communities (see more detailed 
explanation in Summary of Comments and Recommendations, Issue 3: 
Economic Issues, below, and in the Economic Analysis section, below). 
Therefore, there is no demonstrated basis for excluding the area within 
5 mi (or any other distance) of the community of Nelson Lagoon.

Issue 2. Policy and Regulations

    Comment 14: Three commenters (including the House Resource 
Committee of the Alaska State Legislature, the Aleutians East Borough, 
and the City of Unalaska) stated that critical habitat designation is 
not needed for much of the area proposed because it is contained within 
National Wildlife Refuges, State Game Refuges, or State Critical 
Habitat Areas.
    Our response: We appreciate that there are many areas in the State 
of Alaska and across the country that have been established as Federal 
or State conservation areas and that these areas play a critical role 
in conserving our Nation's wildlife legacy. Additionally, we value the 
relationship that exists between the Service and the State of Alaska 
that benefits the rich wildlife heritage of Alaska. The designation of 
critical habitat on Federal or State conservation units does not 
suggest that these areas and their managing agencies are not protecting 
wildlife and their habitats. The designation of critical habitat 
reinforces that these areas are essential to the conservation of the 
listed species and highlights to the public the importance of these 
areas. If such an area contains habitat known to be essential to the 
conservation of the species and may require special management 
consideration, we will designate the area as critical habitat.
    Comment 15: A few commenters contended that critical habitat should 
not be designated until a recovery plan for the species is developed 
and/or recovery goals are established. Others argued that critical 
habitat should be designated only if called for by a recovery plan.
    Our response: Section 4(a)(3) of the Act requires that critical 
habitat be designated when species are listed, which occurs before, and 
in fact initiates, recovery plan development. While having a recovery 
plan in place would be extremely helpful in identifying areas that are 
essential for the conservation of Steller's eiders, it is not required 
under the Act. As recovery planning for the Steller's eider proceeds, 
if new information suggests that designated critical habitat units be 
modified or eliminated, we will initiate appropriate actions. Likewise, 
if additional areas are found to be essential to the conservation of 
the species we will consider designating them as critical habitat.
    Comment 16: Many respondents stated that they thought critical 
habitat would create a need for section 7 consultations on projects 
with a federal nexus, and that consultation would be costly, cause 
permitting delays, potentially preclude some development, or cause 
widespread unemployment.
    Our response: The designation of critical habitat for the Steller's 
eider does not impose any additional requirements or conditions on 
property owners or the public beyond those imposed by the listing of 
the eider in 1997 as a threatened species. All landowners, public and 
private, are responsible for making sure their actions do not result in 
the unauthorized taking of a listed species, regardless of whether or 
not the activity occurs within designated critical habitat. Take is 
defined as ``harass, harm, pursue, hunt, shoot, wound, capture, 
collect, or attempt to engage in any such conduct.'' Take is further 
defined by regulation to include ``significant habitat modification or 
degradation that actually kills or injures wildlife,'' which was upheld 
by the U.S. Supreme Court in Sweet Home Chapter of Communities for a 
Great Oregon et al. v. Babbitt, 515 U.S. 687 (1995).
    Furthermore, all Federal agencies are responsible for ensuring that 
the actions they fund, permit, or carry out do not result in 
jeopardizing the continued existence of a listed species, regardless of 
critical habitat designation. ``Jeopardize the continued existence of'' 
means to engage in an action that reasonably would be expected, 
directly or indirectly, to reduce appreciably the likelihood of both 
the survival and recovery of a listed species in the wild by reducing 
the reproduction, numbers, or distribution of that species (50 CFR

[[Page 8869]]

402.02). Because we designated only areas within the geographic range 
occupied by the Steller's eider, any activity that would result in an 
adverse modification of the eider's critical habitat would virtually 
always also jeopardize the continued existence of the species. Federal 
agencies must consult pursuant to section 7 of the Act on all 
activities that will adversely affect the eider taking place both 
within and outside designated critical habitat.
    The consultation process for Steller's eiders will be affected by 
critical habitat designation only to the extent that Environmental 
Impact Statements, Environmental Assessments, Biological Assessments, 
and other National Environmental Policy Act documents must consider the 
effect of the project on critical habitat. However, these documents 
already must address the effects of the project on habitat (in the 
absence of critical habitat designation). Therefore, we anticipate that 
the additional workload burden created by critical habitat will amount 
to changes in terminology and organization of these documents. Any 
marginal increase in consultation costs will ultimately be borne by the 
lead Federal agency in the consultation process or its designated 
representative.
    We disagree with those commenters who believe that the consultation 
workload that is due to critical habitat is 30 percent, 50 percent, or 
90 percent of the total consultation workload. Since our consultation 
process, regardless of the designation of critical habitat, would 
include an evaluation of the proposed action in terms of the habitat 
effects on the species, we do not anticipate that our portion of the 
section 7 consultation process will take any longer to complete due to 
the presence of critical habitat. Therefore, we do not believe that any 
permitting delays will result from this designation. Similarly, we do 
not believe that critical habitat designation will, by itself, preclude 
development. The Act authorizes us to require only minor changes to 
projects that are likely to adversely affect listed species. Only when 
a project will jeopardize the continued existence of a listed species, 
or will destroy or adversely modify critical habitat can we require 
more than minor changes (called ``reasonable and prudent 
alternatives''). We believe that the threshold for reaching ``adverse 
modification'' is equal to that of ``jeopardy.'' Consequently, we 
cannot envision how an action could cause adverse modification of 
occupied eider critical habitat without also jeopardizing the species. 
As a result, any reasonable and prudent alternatives that we may 
require would have come about due to the listing of the species, with 
or without critical habitat. Therefore, we believe that the existence 
of critical habitat alone will not preclude development.
    Finally, we stand by the determination in our economic analysis 
that critical habitat will not have a notable economic impact. 
Consequently, we do not believe that it will create jobs or cause jobs 
to be lost.
    Comment 17: Many respondents stated that they thought critical 
habitat afforded no additional benefits beyond those already provided 
by listing.
    Our response: It has long been our position that the benefits 
afforded by critical habitat were small relative to the benefits 
provided by listing. As such, we chose to focus scarce resources 
towards the listing of additional species. Our position should not be 
misinterpreted to mean that we believe critical habitat affords no 
additional benefits. To the contrary, we believe critical habitat may 
enhance management on Federal lands, and may help prevent adverse 
impacts on private lands resulting from Federal actions. The courts 
have repeatedly asserted that we have an obligation to designate 
critical habitat under the Act, and any decision not to do so should be 
the exception rather than the rule. We believe that the designation of 
critical habitat serves to educate and inform agencies, organizations, 
and the public that conservation of species requires cooperative 
maintenance of intact, functional habitat.
    Comment 18: Many respondents pointed out that the Act prohibits 
designating a species' entire range as critical habitat.
    Our response: Section 3(5)(C) of the Act states that, except in 
those circumstances determined by the Secretary, critical habitat shall 
not include the entire geographical area which can be occupied by an 
endangered or threatened species. Unfortunately, in the case of the 
Steller's eider, the information on historical distribution is so 
limited that accurately defining the species' entire range (which would 
include both areas currently occupied and unoccupied areas that could 
be occupied) is impossible. Thus, we cannot evaluate what proportion of 
the species' entire potential range was proposed for designation as 
critical habitat. However, at this time we are designating only a small 
proportion of the area originally proposed as critical habitat. Thus, 
we believe that we are designating as critical habitat only a very 
small proportion of the species' total range.
    Comment 19: Several respondents stated that we need to balance 
protection and development.
    Our response: There are provisions for balancing protection and 
development in sections 6, 7, and 10 of the Act. In addition, we 
balance protection and development in the critical habitat designation 
process by conducting an economic analysis. Our analysis concluded that 
the economic effects on development would be minimal or non-existent. 
Therefore, we believe that we have considered both protection and 
development in our deliberations.
    Comment 20: Several commenters expressed concern that designation 
of critical habitat will result in restrictions on development, 
subsistence hunting and fishing, commercial fishing, and 
transportation.
    Our response: We are unaware of any information indicating any new 
State or local laws, restrictions, or procedures will result from 
critical habitat designation. Should any State or local regulation be 
promulgated as a result of this rule, this would be outside our 
authority under the Act. Projects funded, authorized, or carried out by 
Federal agencies, and that may affect critical habitat, must undergo 
consultation under section 7 of the Act on the effects of the action on 
critical habitat. However, as discussed in the Critical Habitat section 
above, we do not expect consultations to result in restrictions that 
would not already be required to avoid or minimize take of the species, 
which is required regardless of the designation of critical habitat.
    Comment 21: One commenter stated that village residents believe 
that they will be adversely affected by the designation of critical 
habitat.
    Our response: We understand the commenter's reservations, however, 
we continue to maintain that the designation of critical habitat does 
not impose any additional requirements or conditions on the public 
beyond those resulting from the listing of the Steller's eider in 1997 
as a threatened species.
    Comment 22: Two respondents stated that we should have consulted 
the recovery team in our decision-making process.
    Our response: We did not request the Recovery Team to make 
recommendations or provide formal comments on the critical habitat 
proposal. That is not the role of the Recovery Team provided for in the 
Act. However, we did consider comments from individual members of the 
recovery team as part of the public review and comment process. On 
September 21-22, 2000, in Anchorage, AK, we convened a meeting of 
experts

[[Page 8870]]

in the field of Steller's eider biology. We invited all local eider 
experts and all members of the Steller's eider recovery team. At this 
meeting, we sought input from the experts on what habitats they 
believed to be essential to the recovery of the species. A transcript 
of this meeting is part of our administrative record, and it was 
considered in our decision-making process, as were comments received by 
mail, fax, phone, e-mail, and in public meetings and our public hearing 
in Barrow, AK.
    Comment 23: One respondent said that designating such a huge area 
as critical habitat may trivialize the concept of critical habitat.
    Our response: The Act requires that we designate critical habitat 
to the maximum extent prudent. For wide-ranging species, this may 
result in large expanses of land or water falling within critical 
habitat borders.
    Comment 24: One respondent compares the listing of the short-tailed 
albatross with that of the Steller's eider, and asked why it is prudent 
to designate critical habitat for the eider, but not for the albatross 
when the criteria for determination are nearly identical.
    Our response: The decline in abundance of short-tailed albatrosses 
was notable in that it was directly attributable to one cause; direct 
persecution of the birds by humans such that the species was driven to 
the brink of extinction (and in fact, for many years, the short-tailed 
albatross was thought to have been extinct). When commercial harvest of 
this species discontinued, the species population began to grow at near 
its maximum biological potential. There is nothing about this species' 
habitat that is preventing it from growing at or near its biological 
maximum capacity for growth. The current population is but a tiny 
fraction of the number of birds that the habitat once supported. In 
short, we know what caused this species to decline, and it's decline 
was completely unrelated to anything in its habitat. We also know that 
there is no aspect of short-tailed albatross habitat in the U.S. that 
is preventing it from recovering nearly as fast as it is capable of 
doing (65 FR 46643). Such may not be the case for the Steller's eider.
    We do not know why the Steller's eider has declined, but lacking 
evidence of excessive direct take by humans, we believe it is possible 
that changes in the quality of the species' habitat (marine or 
terrestrial) may have contributed to or caused its decline. 
Furthermore, certain aspects of its habitat (e.g., lead shot on the 
breeding grounds or changes in the marine environment) may be slowing 
or preventing recovery. As such, special management protections and 
considerations may be needed, and the designation of critical habitat 
is appropriate.
    Comment 25: Several commenters stated that we did not consult with 
Alaska Native communities or local/tribal governments regarding our 
critical habitat proposals.
    Our response: Due to the short deadline we were working under, 
which resulted from a settlement agreement, we did not consult with 
Alaska Native communities prior to proposing to designate critical 
habitat. However, we attempted to notify all potentially affected 
communities, local and regional governments regarding the proposed 
designation after it was published in the Federal Register on March 13, 
2000 (65 FR 13262). As noted earlier, we published notices in the 
Federal Register announcing the proposed designation of critical 
habitat, and the availability of the draft economic analysis. We 
extended our public comment period three times at the request of Alaska 
Natives. We sent letters and informational materials pertaining to the 
proposal, draft economic analysis and notices of the comment period 
extensions to over 300 individuals, communities, and local and regional 
Native governments potentially affected by the proposed critical 
habitat. We provided a briefing opportunity on the proposal for Alaska 
Native representatives at the commencement of the comment period. We 
contacted specific individuals with traditional ecological knowledge of 
eiders and solicited their comments. We discussed our critical habitat 
proposal at 19 meetings (13 of which were public meetings and 16 of 
which had Natives in attendance). We held meetings in the Native/rural 
villages and towns of Chevak, Toksook Bay, Bethel, Barrow, Point Lay, 
Wainwright, Nuiqsut, Atqasuk, Sand Point, and Nome. At those meetings 
that were held during the public comment period, meeting attendees were 
given the opportunity to comment on the proposal and we gave equal 
weight to oral and written comments on the proposal.
    Comment 26: Two respondents stated that we are not in compliance 
with the National Environmental Policy Act and that an Environmental 
Impact Statement should be completed.
    Our response: We have determined that we do not need to prepare 
either an Environmental Impact Statement or Environmental Assessment, 
as defined under the authority of the National Environmental Policy Act 
of 1979 (NEPA), in connection with regulations adopted pursuant to 
section 4(a) of the Act. The Ninth Circuit Court determined that NEPA 
does not apply to our decision to designate critical habitat for an 
endangered or threatened species under the Act because: (1) Congress 
intended that the critical habitat procedures of the Act displace the 
NEPA requirements; (2) NEPA does not apply to actions that do not 
change the physical environment; and (3) to apply NEPA to the Act would 
further the purposes of neither statute (Douglas County v. Babbitt, 48 
F.3d 1495, (9th Cir. 1995)). Alaska is within the jurisdiction of the 
Ninth Circuit Court of Appeals.
    Comment 27: Several commenters said that we should explain in 
detail why the proposed critical habitat is essential to the species' 
survival and recovery. Commenters also stated that we should identify 
more explicitly the criteria used to determine what areas are 
considered essential and what special management or protections are 
needed.
    Our response: Please see the ``Critical Habitat'' section of this 
Final Rule. As described above, we identified the habitat features 
(primary constituent elements) that provide for the physiological, 
behavioral, and ecological requirements essential for the conservation 
of Steller's eiders. Within the occupied range of the Steller's eider, 
we identified areas which provide the primary constituent elements and 
which met the criteria discussed under ``Criteria Used to Identify 
Critical Habitat'' in this rule. Then, based in part on public comments 
and information from eider experts, we selected qualifying portions of 
these areas we believe essential for the conservation of the Steller's 
eider and that may require special management considerations or 
protections.
    Comment 28: Some commenters stated that ``adverse modification'' 
and ``jeopardy'' are two different standards and thus disagreed with 
our position that critical habitat will impose no additional regulatory 
burden.
    Our response: Section 7 prohibits actions funded, authorized, or 
carried out by Federal agencies from jeopardizing the continued 
existence of a listed species or destroying or adversely modifying the 
listed species' critical habitat. Actions likely to ``jeopardize the 
continued existence'' of a species are those that would appreciably 
reduce the likelihood of both the survival and recovery of a listed 
species. Actions likely to result in the destruction or adverse 
modification of critical habitat are those that would appreciably 
reduce the value of critical habitat for both the survival and recovery 
of the listed species. Common

[[Page 8871]]

to both definitions is an appreciable detrimental effect on both 
survival and recovery of a listed species. Given the common threshold 
in these definitions, actions likely to result in the destruction or 
adverse modification of critical habitat would almost always result in 
jeopardy to the species concerned, particularly where, as here, only 
habitat within the geographic range occupied by the Steller's eider is 
designated as critical habitat. The designation of critical habitat for 
the Steller's eider does not add any new requirements to the current 
regulatory process. This critical habitat designation adds no 
additional requirements not already in place following the species' 
listing.
    Comment 29: Some commenters stated that the proposed critical 
habitat designation was inconsistent with the guidelines set forth in 
the Act because it encompassed more habitat than is necessary for the 
conservation of the species.
    Our response: The critical habitat areas identified in the proposed 
rule constituted our best assessment of the areas needed for the 
species' conservation using the best available scientific and 
commercial data available to us at the time. During the public comment 
period for the proposed rule, we received additional information and 
recommendations from eider experts, individuals with traditional 
environmental knowledge of the species' habitat needs and patterns of 
use, and other individuals and organizations enabling us to refine our 
assessment of the areas needed to ensure survival and recovery of the 
species. The critical habitat designated in this rule reflects our 
assessment of the areas needed for the conservation of Steller's eiders 
in accordance with the parameters set forth in ESA sections 3(5)(A) and 
4(b)(2) and as described in the section of this rule titled ``Criteria 
Used to Identify Critical Habitat.'' We will continue to monitor and 
collect new information and may revise the critical habitat designation 
in the future if new information supports a change.
    Comment 30: Several commenters stated that our previous 
determination that designation of critical habitat was ``not prudent'' 
was the appropriate decision. These commenters criticized us for 
agreeing to re-evaluate critical habitat for the Steller's eider in 
response to litigation, and stated that additional biological 
information should be necessary before critical habitat is re-
evaluated.
    Our response: At the time the initial ``not prudent'' determination 
was made for this species, we believed that designation afforded few, 
if any, benefits to the species beyond those conferred by listing. 
Federal Courts have not agreed with our analysis of the befits of 
critical habitat and during the last several years have overwhelmingly 
ruled that the Service must in almost all cases designate critical 
habitat for listed species. In light of recent court rulings, we opted 
to reconsider our earlier prudency decision, as stipulated in the terms 
of a settlement agreement, rather than expend our resources on 
protracted litigation.
    We recognized that there may be informational or educational 
benefits associated with critical habitat designation. Moreover, we 
have acquired additional information concerning the biology and ecology 
of this species that have helped us identify more specifically the 
areas that are essential to its conservation. Recent satellite 
telemetry data has provided new information on molting areas of Alaska-
breeding Steller's eiders. While there is still much to be learned 
about this species, the information currently available to us supports 
our determination that designation of critical habitat is prudent, and 
that the areas we are designating as critical habitat are essential to 
the conservation of the species and may require special management 
considerations or protections.
    Comment 31: One commenter stated the designation of critical 
habitat should not occur until discussions had been held to ensure that 
the designation is consistent with international management regimes, 
such as those under the auspices of the Migratory Bird Treaty Act and 
the Arctic Council's working group for the Conservation of Arctic Flora 
and Fauna.
    Our response: We agree that collaboration and consistency with 
international efforts to conserve the eider are very important. We have 
a working relationship with eider experts in Russia, and our research 
and management efforts are complementary to those conducted under other 
conservation programs. We will continue to coordinate with other 
research and conservation entities. The parameters set forth in the Act 
and the settlement agreement preclude deferral of designation of 
critical habitat for this species pending discussions of the type 
suggested by the commenter.
    Comment 32: One respondent pointed out that critical habitat 
designation will result in the need to reinitiate section 7 
consultation on projects on which consultation has previously been 
completed.
    Our response: We agree. Regulations at 50 CFR 402.16 require 
Federal agencies to reinitiate consultation on previously reviewed 
actions when critical habitat is designated subsequent to consultation. 
However, this reinitiation need be undertaken only if the action is 
ongoing. We are in the process of contacting Federal agencies to inform 
them that they should review their ongoing actions that were previously 
consulted upon to determine if reinitiation of consultation is 
warranted.
    Comment 33: One commenter asked whether critical habitat 
designation would shorten the permitting process for the oil industry 
or reduce the obligation of the oil industry to seek Native 
concurrence.
    Our response: We believe that designating critical habitat will 
neither simplify nor complicate the Federal permitting process for any 
actions, including oil exploration or development. Because the only 
regulatory effect of critical habitat designation is through section 7 
of the Act, which only affects Federal actions and permitting, it 
should not affect interactions between Alaska Natives and any industry.
    Comment 34: Several commenters stated that additional law 
enforcement focused on illegal spring subsistence harvest would be a 
more effective way of achieving recovery than designation of critical 
habitat.
    Our response: We do not know with certainty what caused the decline 
of Steller's eiders, but the available evidence suggests that 
subsistence harvest of this species is minimal and is not likely the 
primary cause of the decline. We have worked successfully with Alaska 
Natives to minimize spring harvest of Steller's eiders, and current 
efforts to implement recent amendments to the Migratory Bird Treaty Act 
are expected to enhance these efforts.
    Comment 35: One commenter indicated that preventative measures such 
as critical habitat designation are cheaper as well as more productive 
and efficient than piecemeal restoration of habitat after environmental 
damage has occurred.
    Our response: We agree. Designation of critical habitat helps focus 
awareness on the habitat needs of listed species. It also enables us to 
work with other federal agencies to ensure that activities they fund, 
permit, or carry out do not adversely modify or destroy habitat that is 
essential to the conservation of listed species.

Issue 3: Economic Issues

    Comment 36: Many commenters disagreed with our assessment that the 
designation of critical habitat for the Steller's eider would not lead 
to any

[[Page 8872]]

new section 7 consultations and our conclusion, as a result, that 
economic impacts of the proposed designation would be minimal.
    Our response: Because the Steller's eider is a federally protected 
species under the Act, Federal agencies are already required to consult 
with us on any actions they authorize, fund, or carry out that may 
affect the species. For Federal actions that may adversely affect 
Steller's eiders, Federal agencies need to enter into a formal section 
7 consultation process with us to avoid violating section 9 of the Act, 
which makes it unlawful for any person to ``take'' a listed species. 
The term ``take'' is defined by the Act (section 3(18)) to mean ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct.'' The U.S. 
Supreme Court clarified the definition of harm to include adverse 
modification of habitat (Sweet Home Chapter of Communities for a Great 
Oregon, et al. v. Babbitt, 515 U.S. 687 (1995).
    We are only designating critical habitat that is occupied by 
Steller's eiders, is essential to the conservation of the species and 
may require special management considerations or protection. While this 
designation will require Federal agencies to further consider whether 
the actions they authorize, fund, or carry out within designated 
critical habitat boundaries may affect habitat, it is unlikely that an 
agency could conclude that an action may affect designated critical 
habitat without simultaneously concluding that the action may also 
affect the eiders given the presence of eiders within designated 
critical habitat.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of both the survival and 
recovery of a listed species. Actions likely to result in the 
destruction or adverse modification of critical habitat are those that 
would appreciably reduce the value of critical habitat for both the 
survival and recovery of the listed species. Common to both definitions 
is an appreciable detrimental effect on both survival and recovery of a 
listed species. Given the similarity of these definitions, actions 
likely to result in the destruction or adverse modification of critical 
habitat would almost always result in jeopardy when the area of the 
proposed action is occupied by Steller's eiders.
    While Federal agencies will be required to consider the effect of 
their actions on critical habitat in determining whether or not to 
consult with us under section 7 of the Act, the designation of critical 
habitat for Steller's eiders will not affect activities undertaken 
within critical habitat boundaries that do not involve a Federal nexus. 
While any person, public or private, is required to ensure that their 
actions do not result in the taking of a Federally listed species, only 
Federal agencies are required to consult with us about their action's 
effect on designated critical habitat under section 7 of the Act. 
Persons undertaking activities within critical habitat boundaries that 
do not have a Federal nexus (i.e., Federal funds or permits) and that 
do not result in either the direct or indirect taking of a Federally 
protected species are not required to consult with us concerning the 
effect their activities may have on designated critical habitat.
    Comment 37: Many commenters stated that by designating critical 
habitat for Steller's eiders, section 7 consultation costs would likely 
increase due to the extra resources needed to determine whether a 
proposed government action could result in the destruction or adverse 
modification of designated critical habitat.
    Our response: We disagree that the designation of critical habitat 
for Steller's eiders would significantly increase the costs associated 
with conducting a section 7 consultation. First, as previously 
described, we have only proposed to designate occupied habitat as 
critical habitat and as a result the designation would not result in an 
increase in section 7 consultations because any Federal action that may 
affect a species' designated critical habitat, which would trigger a 
section 7 consultation, would also affect the listed species itself due 
to its presence in the area. For those Federal actions that we find may 
likely adversely affect a species or its critical habitat, we already 
consider habitat impacts of the proposed action along with whether or 
not an action is likely to jeopardize a listed species or constitute 
``take'' pursuant to section 9 of the Act during the formal section 7 
consultation process. As a result, the designation of critical habitat 
in the areas already occupied by Steller's eiders will not add any 
appreciable time or effort required by an action agency, third party 
applicant, or by our personnel to conduct a section 7 consultation.
    Comment 38: Some comments stated that the economic analyses failed 
to consider the effect of reinitiating previously conducted 
consultations to consider an action's effect on designated critical 
habitat.
    Our response: Regulations at 50 CFR 402.16 require Federal agencies 
to reinitiate consultation on previously reviewed actions in instances 
where critical habitat is subsequently designated. Because we have 
already considered the habitat impacts of the action during the 
consultation process, we do not believe that any significant resources 
would be expended by either the action agency or by our personnel to 
comply with the reinitiation requirement. We anticipate fulfilling the 
requirements of 50 CFR 402.16 by sending a letter to an action agency 
undertaking activities on which we have already consulted, and 
requesting that they make a determination as to whether the ongoing 
action may affect designated critical habitat. Because habitat impacts 
were already considered as part of the initial consultation, we believe 
that most, if not all, non-jeopardy activities already consulted upon 
will likely not adversely modify or destroy critical habitat. We are 
committed to working with all Federal agencies that may be affected by 
the designation of critical habitat to expedite any consultations that 
require reinitiation.
    Comment 39: The draft economic analysis failed to consider that 
Nationwide permits will no longer be allowed without a section 7 
consultation.
    Our response: The conditions, limitations, and restrictions of the 
Army Corps Nationwide permit program state in 33 CFR 330.4 that no 
activity is authorized by any nationwide permit if that activity is 
likely to jeopardize the continued existence of a threatened or 
endangered species as listed or proposed for listing under the Act or 
to destroy or adversely modify the critical habitat of such species. 
Federal agencies are required to follow their own procedures for 
complying with the Act while non-federal permittees are required to 
notify the District Engineer (DE) if any Federally listed (or proposed 
for listing) endangered or threatened species or critical habitat might 
be affected or is in the vicinity of the project. In such cases, the 
prospective permittee may not begin work under authority of the 
nationwide wetland permit until notified by the DE that the 
requirements of the Act have been

[[Page 8873]]

satisfied and that the activity is authorized. If the DE determines 
that the activity may affect any Federally listed species or critical 
habitat, the DE must initiate section 7 consultation in accordance with 
the Act. Because we are only designating occupied habitat as critical 
habitat for Steller's eiders, prospective permittees already are 
required to notify the Army Corps of their activities within these 
areas. As a result, we do not anticipate that critical habitat 
designation for Steller's eiders would result in any additional section 
7 consultations with the Army Corps concerning activities needing a 
general permit to proceed.
    Comment 40: Some commenters stated that minor permitting delays, 
resulting from an increase in section 7 consultations, can result in a 
year-long delay given the limited operation windows due to climate 
conditions in Alaska. As a result, these commenters believed that 
marginal projects may face funding losses as financing capital is 
withdrawn due to increased uncertainty associated with such a project.
    Our response: We disagree that there will be an increase in section 
7 consultations that will be attributable to critical habitat 
designation. Federal agencies are already required to consult with us 
in situations where actions they undertake, fund, or permit may 
jeopardize the eiders. We do not believe that the designation of 
critical habitat will lengthen the section 7 process because we already 
consider habitat impacts as part of the consultation process. Because 
we are only designating critical habitat in areas that are occupied by 
the eiders, we do not believe that there will be an increase in section 
7 consultations due to the designation.
    Comment 41: Several commenters stated that the draft economic 
analyses failed to adequately address critical habitat effects on the 
North Slope petroleum economy, including the costs associated with 
section 7 consultations and project modifications, which may result in 
project delays and reduced development, associated effects on the 
regional, State, and national oil prices and economies, and land value 
impacts in areas where production may be curtailed.
    Our response: Our draft economic analysis for the proposed critical 
habitat rule discussed the potential economic impacts to the oil and 
gas industry operating on the North Slope. Specifically, we discussed 
the responsibilities of the Bureau of Land Management and the Minerals 
Management Service in managing oil and gas exploration and production 
drilling in this area and their current responsibility to consult with 
us on activities they authorize, fund, or carry out that may affect 
Steller's eiders. The analyses discussed previous consultations with 
these Federal agencies concerning oil and gas activities and concluded 
that for section 7 consultations for which a ``not likely to adversely 
affect'' determination was made by the agency, and for which we 
concurred, we fully expect to concur with a corresponding determination 
that such an action is not likely to result in the destruction or 
adverse modification of critical habitat. Only for those actions 
resulting in jeopardy to Steller's eiders would we expect to meet the 
threshold for destruction or adverse modification of critical habitat 
during the section 7 process. Similarly, we believe that property value 
decreases, to the extent that they can be attributed to Steller's 
eiders and result in actual restrictions in land use, would be a result 
of the listing of the species as a federally protected species and not 
because of critical habitat designation. Consequently, we do not 
believe that critical habitat designation, as proposed, would have an 
adverse effect on oil and gas industry operations on the North Slope 
nor have any indirect effects on the regional or State economy.
    In this final rule, however, we have withdrawn the North Slope unit 
from critical habitat designation. As a result, the concerns expressed 
in this comment are no longer an issue relevant to the final 
designation.
    Comment 42: One commenter believed that the economic analyses 
failed to adequately address potential benefits associated with 
critical habitat designation.
    Our response: We believe that the benefits to the species that 
result from critical habitat will be non-economic in nature. Critical 
habitat designation for Steller's eiders may heighten public and agency 
awareness of the habitat needs of Steller's eiders. Other benefits may 
result from Federal agencies becoming more aware of their obligation to 
consult on their activities as per section 7 of the Act. However, 
because we are designating only occupied habitat as critical habitat 
for Steller's eiders, we believe that the economic consequences (both 
positive and negative) associated with the designation are limited. We 
arrive at this conclusion because the designation of critical habitat 
is unlikely to have any significant effect on both current and planned 
economic activities within the designated areas. For reasons previously 
stated, Federal agencies are already required to consult with us on 
activities that may affect Steller's eiders.
    Comment 43: The analysis ignores the effect that critical habitat 
designation may have on commercial fisheries, such as those occurring 
in the Bering Sea, along the Alaska Peninsula, and in Cook Inlet based 
on judicial rulings on the fisheries impact on critical habitat for 
Steller sea lions.
    Our response: On July 20, 2000, U.S. District Court Judge Thomas S. 
Zilly issued an injunction on all groundfish trawl fishing within 
federally regulated waters of the Bering Sea/Aleutian Islands and the 
Gulf of Alaska within Steller sea lion critical habitat. The judge 
issued this injunction because he found that the NMFS failed to issue a 
legally adequate biological opinion addressing the combined, overall 
effects of the North Pacific groundfish trawl fisheries on Steller sea 
lions and their critical habitat pursuant to the Act. It is important 
to note that while the judge limited fishing within Steller sea lion 
critical habitat, he issued the injunction primarily out of concern 
that NMFS failed to comply with section 7 of the Act. Consequently, we 
do not believe that critical habitat designation for the Steller sea 
lion played a significant role in the judge's decision to issue the 
injunction but rather was simply used by the judge to determine the 
boundaries of the injunction.
    Our analyses did not address the potential effects of third-party 
lawsuits directly due to the limited information and experience that 
critical habitat designation could have on such a lawsuit. However, we 
recognize that it is possible that some third parties may elect to sue 
us over future decisions we may make about whether an activity 
adversely modifies critical habitat. As of yet, we have not faced any 
such lawsuits and because we are only designating occupied eider 
habitat as critical habitat, we find it highly unlikely that we would 
ever determine that a Federal action could adversely modify critical 
habitat without simultaneously jeopardizing the continued existence of 
Steller's eiders due to the similarity between the two definitions.
    Our economic analyses did address the potential for impacts to 
commercial fisheries resulting from proposed critical habitat 
designation. In these analyses we described how we have conducted semi-
annual formal consultations with NMFS on the management of Bering Sea 
fisheries. To date, we are unaware of any Steller's eiders having been 
taken by these fisheries. As a result, we discontinued formal 
consultations on this fishery and began conducting only informal 
consultations. We do not anticipate that

[[Page 8874]]

the designation of critical habitat will change our approach to 
consultations. As a result, we do not expect any adverse economic 
impacts to occur in Kuskokwim Bay, Seal Islands, Nelson Lagoon, or 
Izembek Lagoon Steller's eider critical habitat areas as a result of 
this final rule. Therefore, we believe the potential for a third-party 
lawsuit that could affect the commercial fishing industry as a result 
of critical habitat designation is minimal.
    Comment 44: Several commenters stated that the economic analysis is 
flawed because it does not quantify any of the expected impacts that 
may result from critical habitat designation.
    Our response: The draft economic analyses did not identify any 
potential impacts associated with critical habitat designation for 
Steller's eiders. As a result, the analysis was unable to quantify any 
effects. Although the analyses acknowledged the possibility of impacts 
associated with project delays and other activities due to section 7 
consultations (the Act only requires Federal agencies to consult with 
us concerning the effect their actions may have in critical habitat 
areas), we are only designating occupied habitat as critical habitat 
for Steller's eiders. Because Federal agencies are already required to 
consult with us concerning the effect their activities may have on 
Steller's eiders in these areas, we do not believe that the designation 
will result in any additional impacts. While the Act requires Federal 
agencies to consult with us on activities that adversely modify 
critical habitat, we do not believe that within areas being designated 
as critical habitat for Steller's eiders there will be any Federal 
government actions that will adversely modify critical habitat without 
also jeopardizing Steller's eiders due to their presence in designated 
critical habitat areas.
    We have also recognized that, in some instances, the designation of 
critical habitat could affect the real estate market because 
participants may incorrectly perceive that land within critical habitat 
designation is subject to additional constraints. However, we do not 
believe that this effect will result from the designation of critical 
habitat for Steller's eiders. We arrived at this determination based on 
the fact that we believe that critical habitat designation for 
Steller's eiders will not add any additional protection, beyond that 
associated with the addition of the species to the list of federally 
protected species. Additionally, in regard to private lands that may be 
nearby designated areas, we believe that critical habitat designation 
for Steller's eiders will not add any additional protection, nor impact 
landowners, beyond that associated with the addition of the species to 
the list of Federally protected species. Any resulting real estate 
market would likely be temporary and have a relatively insignificant 
effect as it becomes apparent that critical habitat for Steller's 
eiders does not impose additional constraints on landowner activities 
beyond that currently associated with the listing of the species.
    Comment 45: Some commenters stated that the analysis does not 
consider the cumulative impact of added uncertainty for projects.
    Our response: While our economic analyses identified some of the 
concerns stakeholders may have regarding our concern over current or 
anticipated activities on eider critical habitat, we do not believe 
that the designation of critical habitat for Steller's eiders will 
impose any additional restrictions or considerations on projects having 
a Federal nexus. While section 7 consultations could lead to project 
delays if they are not properly anticipated for by project planners, we 
do not believe that the designation of critical habitat will result in 
any new or additional section 7 consultations above and beyond those 
that would be required due to an activity's potential to affect 
Steller's eiders. We already consider the impact that an action has on 
the eider's habitat as part of our current section 7 process so we do 
not believe that the section 7 process will take any longer than it 
currently does once critical habitat is designated.
    Comment 46: Some commenters believed that we failed to adequately 
address the requirements of the Small Business Regulatory Enforcement 
Fairness Act in our draft economic analysis.
    Our response: The Regulatory Flexibility Act, as amended by the 
Small Business Regulatory Enforcement Fairness Act, generally requires 
an agency to prepare a regulatory flexibility analysis of any rule 
requiring public notice and comment under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. We are certifying that this rule will not have a significant 
economic impact on a substantial number of small entities and, as a 
result, we do not need to prepare either an initial or final regulatory 
flexibility analysis.
    We have based our finding on the fact that this rule will not 
result in any significant additional burden to the regulated community, 
regardless of the size of the entity. Our economic analysis identified 
several potential impacts associated with critical habitat designation, 
including increased consultation costs, project modification costs, and 
potential temporary decreases in property values. However, because we 
have only designated property that is within the geographic range 
occupied by Steller's eiders and because Steller's eiders are already a 
Federally protected species, other Federal agencies are already 
required to consult with us on activities that they authorize, fund, or 
carry out that have the potential to jeopardize the species. Any 
associated costs related to these section 7 consultations, including 
project modifications, will therefore be attributable to the listing of 
the species and not to designation of critical habitat due to the 
similarity in the definition of jeopardy and adverse modification.

Issue 4: Other Relevant Issues

    Comment 47: Many respondents were concerned that designating 
critical habitat will invite lawsuits by those aiming to obstruct oil 
development on the North Slope.
    Our response: While we cannot predict future litigation, it is not 
our intent to facilitate litigation through critical habitat 
designation. However, we cannot use the threat of litigation as an 
excuse for not designating critical habitat. The Act and regulations at 
50 CFR 424.12 require us to designate critical habitat to the maximum 
extent prudent, and require that we base critical habitat 
determinations on the best scientific and commercial data available and 
that we consider those physical and biological features that are 
essential to the conservation of the species and that may require 
special management considerations and protection.
    In this final rule, however, we have withdrawn the North Slope unit 
from critical habitat designation. As a result, the concerns expressed 
in this comment are no longer an issue relevant to the final 
designation.
    Comment 48: A few respondents asked whether it is possible that 
there will be additional time in which to submit comments and whether 
another draft will be presented for public comment before the final 
rule.
    Our response: Our public comment period of 197 days greatly exceeds 
the 60-day public comment period required by regulation. We extended 
the comment period on three separate occasions to accommodate 
interested parties. We believe that we allowed ample time for comments. 
Our proposed

[[Page 8875]]

rule, published on March 13, 2000, and the draft economic analysis 
represent the only documents for which public comment will be sought 
relative to this rulemaking. However, we welcome at any time new 
information on the life history, distribution, and status of the 
Steller's eider, as well as information on the quality, quantity, and 
viability of the habitats it uses.
    Comment 49: A few respondents asked whether critical habitat would 
be the first step towards making the area a refuge.
    Our response: Critical habitat designation is completely unrelated 
to the formation of wildlife refuges, and in no way affects, or is a 
precursor to, establishment of a wildlife refuge. Critical habitat can 
be designated on existing parks and refuges, state and private lands. 
Such designation carries with it no implication of future land 
ownership change, nor does it allow for public access to private land.
    Comment 50: One respondent stated that our proposal resulted from a 
politically motivated decision.
    Our response: Our proposal resulted from an out-of-court settlement 
in which we agreed to re-examine our initial decision that designation 
of critical habitat for this species was not prudent. We objectively 
reexamined the best scientific and commercial data available to us at 
the time, determined that designation of critical habitat was prudent, 
and developed the proposal upon which this final rule is based.
    Comment 51: One respondent stated that designating critical habitat 
ensures collaboration between Federal, State, and Private agencies and 
industries, and that designation will foster comprehensive planning and 
wise management.
    Our response: We pursue comprehensive planning and management 
opportunities regardless of the presence of critical habitat. However, 
we note that the heightened awareness surrounding conservation issues 
and the delineation of critical habitat areas on maps has resulted in 
agencies becoming more fully aware of the need to consult with us as 
per section 7 of the Act. As we discussed for the Proposed North Slope 
Unit under the Rationale for the Final Designation section, in the 
unique circumstances surrounding the Barrow area, we believe the 
exclusion of areas from a critical habitat designation can also provide 
a conservation benefit to the species.
    Comment 52: One respondent stated that designating as critical 
habitat the large area proposed on the Arctic Coastal Plain would harm 
listed eiders by irreparably damaging cooperative and collaborative 
working relationships between the Service and local and Native 
governments.
    Our response: We regard working relationships with local and Native 
governments to be essential for effecting the recovery of Steller's 
eiders on the North Slope. We note numerous cooperative conservation 
actions that are in progress, including jointly conducted or funded 
research and monitoring projects, efforts to eliminate the use of lead 
shot by waterfowl hunters, and public education projects. We agree that 
any action that damages these cooperative efforts will harm listed 
eiders. However, the Act and our regulations are clear in that critical 
habitat must be designated if doing so is prudent. It should be noted 
that in this final rule, we have withdrawn the North Slope unit from 
critical habitat designation for reasons described in the Rationale for 
the Final Designation section.
    Comment 53: One respondent challenged our metric/English 
conversions (40 km = 25 mi; 30 feet = 10 m) used to describe critical 
habitat units, contending the imprecision in this conversion could 
cause ambiguity in unit boundaries.
    Our response: We have revised these conversions where appropriate. 
The conversion 30ft/10m was changed to 30 ft/9m, while one quarter 
mile/400 m and 25 miles/40 km were left unchanged in order to maintain 
the appropriate number of significant digits.
    Comment 54: One respondent stated that the risks of not designating 
or designating too small an area appear greater than the risks of 
designating too large an area.
    Our response: We believe that any risks associated with the 
designation of critical habitat derive from misperceptions surrounding 
critical habitat, and the way in which these misperceptions may affect 
working relationships between parties with conflicting interests or 
goals. Conversely, we do not believe that there are notable risks to 
the listed species that would result from a failure to designate 
critical habitat.
    Comment 55: One respondent asked whether critical habitat remains 
forever or is eliminated once the species is delisted.
    Our response: Critical habitat is eliminated when the species is 
delisted.
    Comment 56: Two oil companies commented that the original listing 
of eiders and subsequent critical habitat designation may have indirect 
negative effects on eiders by stimulating more intrusive research on 
the North Slope and elsewhere, resulting in increased disturbance 
during nesting.
    Our response: The only regulatory effect of critical habitat 
designation is through section 7 of the Act, which requires Federal 
agencies to consult with the Service on actions they permit, fund, or 
conduct that may adversely affect listed species or adversely modify or 
destroy critical habitat. We believe that neither the need to consult 
nor the outcome of consultations will be affected by critical habitat 
designation because we currently consider the potential habitat impacts 
of proposed projects during consultation. While listing may stimulate 
research on eiders and recovery, any research on the North Slope or 
elsewhere in the species' occupied range that might result in ``take'' 
would require a section 10(a)(1)(A) permit from the Service. If the 
authorization of such a permit may affect a listed species, an intra-
agency section 7 consultation on permit issuance must be initiated. Any 
such consultation will consider the direct, indirect, interrelated, and 
interdependent effects of the action. No permits would be issued if 
significant adverse impacts were anticipated.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the proposed 
determination of critical habitat for the Steller's eider, we re-
evaluated our proposed designation of critical habitat for the species. 
This resulted in five significant changes that are reflected in this 
final determination. These are the (1) elimination of the proposed 
North Slope unit; (2) revision of the proposed Kuskokwim Bay unit to 
include the northern portion, now called the Kuskokwim Shoals unit, and 
to exclude the southern portion; (3) elimination of the proposed 
Nunivak Islands, Eastern Aleutians, Alaska Peninsula--south side, 
Kodiak Archipelago and Kachemak Bay/Ninilchik units; (4) elimination of 
most of the proposed North Side of the Alaska Peninsula unit, and; (5) 
separate designation of Seal Islands, Nelson Lagoon, and Izembek Lagoon 
units. A detailed discussion of the basis for changes from the proposed 
rule can be found under Rationale for the Final Designation section 
above.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from

[[Page 8876]]

critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    Economic effects caused by listing the Alaska-breeding population 
of the Steller's eider as a threatened species and by other statutes 
are the baseline against which the effects of critical habitat 
designation are evaluated. The economic analysis must then examine the 
incremental economic and conservation effects and benefits of the 
critical habitat designation. Economic effects are measured as changes 
in national income, regional jobs, and household income. An analysis of 
the economic effects of Steller's eider critical habitat designation 
was prepared (Industrial Economics, Incorporated, 2000) and made 
available for public review August 24, 2000 (65 FR 51577). The final 
analysis, which reviewed and incorporated public comments, concluded 
that no significant economic impacts are expected from critical habitat 
designation above and beyond that already imposed by listing the 
Steller's eider The most likely economic effects of critical habitat 
designation are on activities funded, authorized, or carried out by a 
Federal agency. The analysis examined the effects of the proposed 
designation on: (1) Re-initiation of section 7 consultations, (2) 
length of time in which section 7 consultations are completed, and (3) 
new consultations resulting from the determination. Because areas 
proposed for critical habitat are within the geographic range occupied 
by the Steller's eider, activities that may affect critical habitat may 
also affect the species, and would thus be subject to consultation 
whether or not critical habitat is designated. We believe that any 
project that would adversely modify or destroy critical habitat would 
also jeopardize the continued existence of the species, and that 
reasonable and prudent alternatives to avoid jeopardizing the species 
would also avoid adverse modification of critical habitat. Thus, no 
regulatory burden or associated significant additional costs would 
accrue because of critical habitat above and beyond that resulting from 
listing. Our economic analysis does recognize that there may be costs 
from delays associated with reinitiating completed consultations after 
the critical habitat designation is made final.
    A copy of the final economic analysis may be obtained by contacting 
the Northern Alaska Ecological Services office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    This document has been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. OMB makes the 
final determination under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. The Steller's eider was listed as a 
threatened species in 1997. Since then, we have conducted 5 formal 
section 7 consultations with other Federal agencies to ensure that 
their actions would not jeopardize the continued existence of the 
species. We have also issued 5 section 10(a)(1)(A) incidental take 
permits for research activities that might affect Steller's eiders. We 
have issued no section 10(a)(1)(B) incidental take permits for this 
species or within the range of this species.
    The areas designated as critical habitat are currently within the 
geographic range occupied by the Steller's eider. Under the Act, 
critical habitat may not be adversely modified by a Federal agency 
action; it does not impose any restrictions on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency (see Table 2 below). Section 7 requires 
Federal agencies to ensure that they do not jeopardize the continued 
existence of the species. Based upon our experience with the species 
and its needs, we conclude that any Federal action or authorized action 
that could potentially cause adverse modification of designated 
critical habitat would currently be considered as ``jeopardy'' under 
the Act. Accordingly, the designation of areas within the geographic 
range occupied by the Steller's eider does not have any incremental 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding. 
Non-Federal persons that do not have a Federal ``sponsorship'' of their 
actions are not restricted by the designation of critical habitat 
although they continue to be bound by the provisions of the Act 
concerning ``take'' of the species.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the Steller's eider since the listing in 1997. The prohibition against 
adverse modification of critical habitat is not expected to impose any 
restrictions in addition to those that currently exist because all 
designated critical habitat is within the geographic range occupied by 
the Steller's eider. Because of the potential for impacts on other 
Federal agency activities, we will continue to review this action for 
any inconsistencies with other Federal agency actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and as 
discussed above we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any 
significant incremental effects.
    (d) This rule will not raise novel legal or policy issues. This 
final determination follows the requirements for determining critical 
habitat contained in the Endangered Species Act.

[[Page 8877]]



      Table 2.--Activities Potentially Affected by Steller's Eider Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                Additional activities  involving
                                      Activities involving a Federal action       a Federal  action potentially
    Categories of activities        potentially affected  by species listing      affected by critical  habitat
                                                    only \1\                             designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially    Activities that the Federal Government        None.
 Affected \3\.                     carries out such as scientific research,
                                   land surveys, law enforcement, oil spill
                                   response, resource management, regulation
                                   of commerce, and construction/expansion of
                                   physical facilities.
Private Activities Potentially    Activities that also require a Federal        None.
 Affected \4\.                     action (permit, authorization, or funding)
                                   such as scientific research, commercial
                                   fishing, sport and subsistence hunting,
                                   shipping and transport of fuel oil and, and
                                   village maintenance, construction and
                                   expansion.
----------------------------------------------------------------------------------------------------------------
\1\ This column represents impacts of the final rule listing the Steller's eider (June 11, 1997; 62 FR 31748)
  under the Endangered Species Act.
\2\ This column represents the impacts of the critical habitat designation above and beyond those impacts
  resulting from listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal authorization or funding.

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

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above and in this final determination, this designation of 
critical habitat for the Steller's eider is not expected to result in 
any restrictions in addition to those currently in existence. As 
indicated on Table 1 (see Critical Habitat Designation section) we have 
designated property owned by Federal, State and local governments, and 
private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Regulation of commercial fisheries by the National Marine 
Fisheries Service;
    (4) Law enforcement in United States Coastal Waters by the U.S. 
Coast Guard;
    (5) Road construction and maintenance by the Federal Highway 
Administration;
    (6) Regulation of airport improvement activities by the Federal 
Aviation Administration jurisdiction;
    (7) Military training and maneuvers on applicable DOD lands;
    (8) Regulation of subsistence harvest activities on Federal lands 
by the U.S. Fish and Wildlife Service;
    (9) Regulation of mining and oil development activities by the 
Minerals Management Service;
    (10) Regulation of home construction and alteration by the Federal 
Housing Authority;
    (11) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (12) Construction of communication sites licensed by the Federal 
Communications Commission;
    (13) Wastewater discharge from communities and oil development 
facilities permitted by the Environmental Protection Agency; and
    (14) Other activities funded by the U.S. Environmental Protection 
Agency, Department of Energy, or any other Federal agency.
    Many of these activities sponsored by Federal agencies within 
critical habitat areas are carried out by small entities (as defined by 
the Regulatory Flexibility Act) through contract, grant, permit, or 
other Federal authorization. As discussed in section 1 above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this final 
determination will have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we determined whether designation of 
critical habitat would cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions in the economic analysis, or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will only be affected to the extent that any Federal funds, 
permits or other authorized activities must ensure that their actions 
will not adversely affect the critical habitat. However, as discussed 
in section 1, these actions are currently subject to equivalent 
restrictions through the listing protections of the species, and no 
further restrictions are anticipated.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    This critical habitat designation is restricted to Federal and 
State marine waters and no private lands are included. Therefore, this 
rule does not have significant takings implications and a takings 
implication assessment is not required.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism

[[Page 8878]]

assessment is not required. The designation of critical habitat within 
the geographic range occupied by the Steller's eider imposes no 
additional restrictions to those currently in place, and therefore has 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of the species are specifically identified. 
While this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long range planning (rather than waiting for case by 
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designate critical habitat in accordance with the 
provisions of the Endangered Species Act. The determination uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the Steller's eider.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required.

National Environmental Policy Act

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Endangered Species Act, as 
amended. A notice outlining our reason for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244). 
This final determination does not constitute a major Federal action 
significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of the 
Steller's eider because they do not support core Steller's eider 
populations, nor do they provide essential linkages between core 
populations. Therefore, critical habitat for the Steller's eider has 
not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Northern Alaska Ecological Services 
Office (see ADDRESSES section) or from the U.S. Fish and Wildlife 
Service, Alaska Region webpage at: http://www.r7.fws.gov/es/te.html

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


    2. In Sec. 17.11(h) revise the entry for Steller's eider under 
``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                  Vertebrate population
-----------------------------------------------------------     Historic range      where endangered or     Status       When      Critical     Special
            Common name                 Scientific name                                  threatened                     listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
               BIRDS
                   *                  *                  *                  *                  *                  *                  *
Eider, Steller's...................  Polysticta stelleri..  USA (AK); Russia.....  U.S.A. (AK breeding            T         616    17.95(b)          NA
                                                                                    population only).
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95 (b) by adding critical habitat for the 
Steller's eider (Polysticta stelleri) in the same alphabetical order as 
this species occurs in 17.11 (h) to read as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
Steller's Eider (Polysticta stelleri)
    1. Critical habitat units are depicted for the Yukon--Kuskokwim 
Delta (Unit 1), Kuskokwim Shoals (Unit 2), Seal Islands (Unit 3), 
Nelson Lagoon (Unit 4), and Izembek Lagoon (Unit 5) on the maps below. 
The maps are for reference only; the areas in critical habitat are 
legally described below.
    2. Within these areas, the primary constituent elements are those 
habitat components that are essential for the primary biological needs 
of feeding, roosting, molting, and wintering. The primary constituent 
elements for Unit 1 include the vegetated intertidal zone and all open 
water inclusions within this zone. The primary constituent elements for 
Units 2, 3, 4, and 5 are marine waters up to 9 m (30 feet) deep and the 
underlying substrate, the associated invertebrate fauna in the water 
column, the underlying marine benthic community, and where present, 
eelgrass beds and associated flora and fauna. Critical habitat does not 
include those areas within the boundary of any unit that do not fit the 
description of primary constituent elements for that unit.
    3. Critical habitat does not include existing human structures, 
such as buildings, roads, pipelines, utility corridors, airports, other 
paved areas,

[[Page 8879]]

docks, wharves, buoys, or other developed areas.
    4. In the following maps and legal descriptions, all geographic 
coordinates are in North American Datum 1927.

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Unit 1. Yukon--Kuskokwim Delta

    Seward Meridian: T19N, R91W, Sections 24, 25, 26, 33, 34, 35, 36; 
T19N, R90W, Sections 13, 14, 17, 18, 19-36; T18N, R90W, Sections 1-24, 
26-33; T18N, R91W, Sections 1-5, 7-28, 33-36; T18N, R92W, Sections 10-
30; T18N, R93W, Sections 21-27; T16N, R91W, Sections 1-36; T16N, R92W, 
Sections 1-4, 10-15, 21-36; T16N, R93W, Section 36; T15N, R89W, 
Sections 1-36; T15N, R90W, Sections 1-36; T15N, R91W, Sections 1-36; 
T15N, R92W, Sections 1-36; T15N, R93W, Sections 1,2, 11-14, 23-26, 36; 
T14N, R89W, Sections 1-36; T14N, R90W, Sections 1-36; T14N, R91W, 
Sections 1-29, 32-36; T14N, R92W, Sections 1-18, 24; T14N, R93W, 
Sections 1, 12; T13N, R87W, Sections 1-36; T13N, R88W, Sections 1-36; 
T13N, R89W, Sections 1-36; T13N, R90W, Sections 1-36; T13N, R91W, 
Sections 1-5, 8-17, 20-29, 32-36; T12N, R87W, Sections 1-36; T12N, 
R88W, Sections 1-29, 31-36; T12N, R89W, Sections 1-35; T12N, R90W, 
Sections 1-4, 9-14, 23-25; T12N, R91W, Sections 1-36; T12N, R92W, 
Sections 1-4, 9-16, 21-28, 34-36; T11N, R87W, Sections 1-36; T11N, 
R88W, Sections 1-36, T11N, R89W, Sections 1-6, 9-12, 25-36; T11N, R91W, 
Sections 1-6; T10N, R88W, Sections 1-26, 29-33, 35, 36; T10N, R89W, 
Sections 1-35; T10N, R90W, Sections 1, 2, 11-14, 24, 25; T9N, R87W, 
Sections 1-35; T9N, R88W, Sections 1, 4-10, 13-36; T9N, R89W, Sections 
13, 14, 23-26, 35, 36; T8N, R89W, Sections 1-5, 7-24, 26-34; T8N, R90W, 
Sections 1-2, 11, 13, 14, 23-26, 36.

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Unit 2. Kuskokwim Shoals Unit

    Beginning at a point of land on the line of mean high tide of 
Etolin Strait of the Bering Sea at latitude 60 deg. 15" North, 
approximately 2.5 kilometers (1.6 miles) south of the mouth of the 
Kolavinarak River, and the true point of beginning of the lands to be 
described.
    Thence southeasterly and easterly with the line of mean high tide 
of the Bering Sea, common with the boundary of the Yukon Delta and 
Alaska Maritime National Wildlife Refuges as established by the Alaska 
National Interest Lands Conservation Act (Public Law 96-487) on 
December 2, 1980, approximately 149 kilometers (93 miles), to a point 
on the line of mean high tide at longitude 163 deg. 00' West, 
approximately 8 kilometers (5 miles) east of the Kwigillingok River 
mouth;
    Thence south along the line of longitude 163 deg. 00' West, 
approximately 43 km (27 miles), to the point in the waters of Kuskokwim 
Bay, Bering Sea, at latitude 59 deg. 30' North, longitude 163 deg. 00' 
West;
    Thence west along the line of latitude 59 deg. 30' North, 
approximately 56 kilometers (35 miles), to a point in the waters of 
Kuskokwim Bay, Bering Sea, at latitude 59 deg. 30' North, longitude 
164 deg. 00' West;
    Thence northwesterly, approximately 86 kilometers (54 miles), to a 
point in the waters of Etolin Strait, Bering Sea, at latitude 60 deg. 
05' North, longitude 165 deg. 00' West;
    Thence northeasterly, approximately 27 kilometers (17 miles), to 
the line of mean high tide of Etolin Strait at latitude 60 deg. 15'' 
North, and the true point of beginning.

[[Page 8882]]

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Unit 3. Seal Islands Unit

    Beginning at a point of land on the Alaska Peninsula on the line of 
mean high tide of Bristol Bay of the Bering Sea at longitude 
159 deg.12' West, and the True Point of Beginning of the lands to be 
described.
    Thence southwesterly, northeasterly, and southwesterly, with the 
line of mean high tide of Bristol Bay, common with the boundary of the 
Alaska Maritime National Wildlife Refuge as established by the Alaska 
National Interest Lands Conservation Act (Public Law 96-487) on 
December 2, 1980, to encompass the Seal Islands lagoon and closing the 
mouth of the Ilnik River, approximately 52 kilometers (32 miles);
    Thence northwest with the line of mean high tide of Bristol Bay, 
common with said refuge boundary approximately 14 kilometers (9 miles) 
to a point at the entrance to Seal Island lagoon at approximate 
longitude 159 deg.23' West;
    Thence southwest, with the line of mean high tide of Bristol Bay, 
common with said refuge boundary, approximately 16 kilometers (10 
miles) to a point at longitude 159 deg.36' West:
    Thence north with the line of longitude 159 deg.36' West to a point 
in the waters of Bristol Bay at a distance of 400 meters (\1/4\ mile) 
perpendicular to the line of mean high tide;
    Thence in a northeasterly direction, parallel to the coastline of 
Bristol Bay and the ocean side of the Seal islands, closing the 
entrances to Seal Island lagoon, for approximately 30 kilometers (19 
miles) to a point in Bristol Bay at longitude 159 deg.12' West, and at 
a distance of 400 meters (\1/4\ mile) perpendicular to the line of mean 
high tide;
    Thence south with the line of longitude 159 deg.12' West, to the 
line of mean high tide of Bristol Bay, and the True Point of Beginning.

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Unit 4. Nelson Lagoon Unit

    Beginning at a point of land on the Alaska Peninsula on the line of 
mean high tide of Bristol Bay of the Bering Sea, approximately 5.5 
kilometers ( 3.4 miles) north of Harbor Point, on Moller Spit, at 
longitude 160 deg.32' West, and the True Point of Beginning of the 
lands to be described.
    Thence southwesterly and northeasterly, with the line of mean high 
tide of Bristol Bay, common with the boundary of the Alaska Maritime 
National Wildlife Refuge as established by the Alaska National Interest 
Lands Conservation Act (Public Law 96-487) on December 2, 1980, 
approximately 10 kilometers (6.2 miles) to a point at 
longitude160 deg.32' West;
    Thence south with the line of longitude 160 deg.32' West, crossing 
Port Moller, approximately 9 kilometers (5.6 miles) to a point at the 
mean high tide line on the south shore of Port Moller;
    Thence westerly and southerly with the line of mean high tide of 
Port Moller and Herendeen Bay common with said refuge boundary 
approximately 24 kilometers (15 miles) to a point at latitude 
55 deg.51' North;
    Thence west with the line of latitude 55 deg.51' North, crossing 
Herendeen Bay approximately 11.7 kilometers (7.3 miles) to a point at 
the mean high tide line on the west shore of Herendeen Bay;
    Thence northerly, westerly, and northeasterly with the line of mean 
high tide of Herendeen Bay and Nelson Lagoon, common with said refuge 
boundary; approximately 94 kilometers (58 miles) to Lagoon Point, 
within Section 22 of Township 48 South, Range 76 West;
    Thence southwesterly with the line of mean high tide of the Bering 
Sea, common with said refuge boundary, approximately 20 kilometers (12 
miles) to a point at longitude 161 deg.24' West;
    Thence north along the line of longitude 161 deg.24' West to a 
point in the waters of Bristol Bay at a distance of 400 meters (\1/4\ 
mile) perpendicular to the line of mean high tide;
    Thence in a northeasterly direction, parallel to the coastline of 
Bristol Bay and the ocean side of the Kudobin Islands, approximately 40 
kilometers (25 miles) to a point at longitude160 deg.48' West, at a 
distance of 400 meters (\1/4\ mile) offshore Wolf Point on Walrus 
island;
    Thence southeast, approximately 18 kilometers (11.1 miles), closing 
the entrance to the Hague Channel to a point at the mean high tide line 
of Port Moller at 160 deg.32' West, the True Point of Beginning.

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Unit 5. Izembek Lagoon Unit

    Beginning at a point of land on the Alaska Peninsula on the line of 
mean high tide of Bristol Bay of the Bering Sea at longitude 
162 deg.30' W and the True Point of Beginning of the lands to be 
described.
    Thence southwesterly, with the line of mean high tide of Bristol 
Bay, common with the boundary of the Alaska Maritime National Wildlife 
Refuge as established by the Alaska National Interest Lands 
Conservation Act (Public Law 96-487) on December 2, 1980, approximately 
9 kilometers (5.6 miles) to Moffet Point located at approximately 
55 deg.27' N, 162 deg.37' W;
    Thence continuing with the line of mean high tide, inside the 
boundary of the Izembek National Wildlife Refuge, northeasterly, 
southwesterly, and northeasterly to encompass Moffett and Izembek 
Lagoons, Applegate Cove, and Norma Bay, approximately 55 miles to Cape 
Glazenap, at approximately 55 deg.15' N, 163 deg.00' W;
    Thence southwest with the line of mean high tide of Bristol Bay, 
common to the Alaska Maritime refuge boundary, approximately 177 
kilometers (110 miles) to a point at longitude 163 deg.15' W;
    Thence north along the line of longitude 163 deg.15' W to a point 
in the waters of Bristol Bay at a distance of 400 meters (\1/4\ mile) 
perpendicular to the line of mean high tide;
    Thence in a northeasterly direction, parallel to the coastline of 
Bristol Bay and the ocean side of the Kudiakof Islands, closing the 
entrances to Izembek Lagoon, for approximately 64 kilometers (40 miles) 
to a point in the waters of Bristol Bay at longitude 162 deg.30' W, and 
at a distance of 400 meters (\1/4\ mile) perpendicular to the line of 
mean high tide;
    Thence south along the line of longitude 162 deg.30' W, to the line 
of mean high tide and the True Point of Beginning.
* * * * *

    Dated: January 10, 2001.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-1334 Filed 2-1-01; 8:45 am]
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