8850 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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.

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 YukonKuskokwim 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 (mi2);

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 Alaskabreeding population. Neither Russiabreeding 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

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

8852 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 Alaskabreeding 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 Alaskabreeding 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

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations 8853

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 km2

(1,055 mi2) 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 lowintensity 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 Alaskabreeding 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 Russiabreeding 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

8854 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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

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

8856 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 km2, multiply hectares by 0.01; to convert to acres, multiply hectares by 2.471; to convert to mi2, 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 km2 (256,100 ha)

(980 mi2). This unit is one of only two

known breeding sites for the Alaskabreeding 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 km2 (1,472 mi2) 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° 12′ W

and 159° 36′ W. It encompasses 63 km2

(24 mi2) 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

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations 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° 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 km2 (205 mi2)

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° 30′ W and 163°

15′ W. It encompasses 363 km2 (140 mi2)

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 km2

(15,785 mi2) 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 Alaskabreeding 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

8858 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 km2, so

on average, one Steller’s eider was

detected per 6,860 km2 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 km2 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

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

8860 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

comprehensive package that will

combine elements of habitat

preservation on private lands held by

the village corporation, communitywide 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 km2 (1,202 mi2) 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 reestablishment 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:

Unit Area

(km2)

Shoreline (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:

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations 8861

Unit Area

(km2)

Shoreline (km)

Kuskokwim Shoals ....... 3,813 184

Seal Islands .................. 63 104

Nelson Lagoon (including portions of Port

Moller and

Herendeen Bay) ........ 533 238

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 morenumerous 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 Russiabreeding 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 ≥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

8862 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 ≤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 fineresolution 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

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

8864 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 postdisaster 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

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

8866 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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

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

8868 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 Alaskabreeding 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 Alaskabreeding population disperses

throughout the range of the morenumerous 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

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

8870 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 wideranging 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

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

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

8872 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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, nonjeopardy 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

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

8874 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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

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

8876 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 costbenefit 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.

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations 8877

TABLE 2.—ACTIVITIES POTENTIALLY AFFECTED BY STELLER’S EIDER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities involving a Federal action potentially affected

by species listing only 1

Additional activities

involving a Federal

action potentially

affected by critical

habitat designation 2

Federal Activities Potentially Affected 3 Activities that the Federal Government carries out such as scientific research, land surveys, law enforcement, oil spill response, resource management, regulation of commerce, and construction/expansion of physical

facilities.

None.

Private Activities Potentially Affected 4 .. Activities that also require a Federal 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.

None.

1This column represents impacts of the final rule listing the Steller’s eider (June 11, 1997; 62 FR 31748) under the Endangered Species Act. 2This column represents the impacts of the critical habitat designation above and beyond those impacts resulting from listing the species. 3Activities initiated by a Federal agency.

4Activities 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 postdisaster 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

8878 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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 § 17.11(h) revise the entry for

Steller’s eider under ‘‘BIRDS’’ to read as

follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population

where endangered or

threatened

Status When

listed

Critical

habitat

Special

rules Common name Scientific name

*******

BIRDS

*******

Eider, Steller’s ............ Polysticta stelleri ....... USA (AK); Russia ..... U.S.A. (AK breeding

population only).

T 616 17.95(b) NA

*******

3. Amend § 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:

§ 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,

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

BILLING CODE 4310–55–P

8880 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

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.

BILLING CODE 4310–55–P

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations 8881

BILLING CODE 4310–55–C

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° 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° 00′ West, approximately 8

kilometers (5 miles) east of the

Kwigillingok River mouth;

Thence south along the line of

longitude 163° 00′ West, approximately

43 km (27 miles), to the point in the

waters of Kuskokwim Bay, Bering Sea,

at latitude 59° 30′ North, longitude 163°

00′ West;

Thence west along the line of latitude

59° 30′ North, approximately 56

kilometers (35 miles), to a point in the

waters of Kuskokwim Bay, Bering Sea,

at latitude 59° 30′ North, longitude 164°

00′ West;

Thence northwesterly, approximately

86 kilometers (54 miles), to a point in

the waters of Etolin Strait, Bering Sea,

at latitude 60° 05′ North, longitude 165°

00′ West;

Thence northeasterly, approximately

27 kilometers (17 miles), to the line of

mean high tide of Etolin Strait at

latitude 60° 15’’ North, and the true

point of beginning.

8882 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

BILLING CODE 4310–55–C

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°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°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°36′ West:

Thence north with the line of

longitude 159°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°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°12′ West, to the line of

mean high tide of Bristol Bay, and the

True Point of Beginning.

BILLING CODE 4310–55–P

Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations 8883

BILLING CODE 4310–55–C

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°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°32′ West;

Thence south with the line of

longitude 160°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°51′ North;

Thence west with the line of latitude

55°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°24′ West;

Thence north along the line of

longitude 161°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°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°32′ West, the True Point

of Beginning.

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8884 Federal Register / Vol. 66, No. 23 / Friday, February 2, 2001 / Rules and Regulations

BILLING CODE 4310–55–C

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°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°27′ N, 162°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°15′

N, 163°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°15′ W;

Thence north along the line of

longitude 163°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°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°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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