[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Proposed Rules]
[Pages 17131-17135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8519]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 090224232-9334-02]
RIN 0648-AX50
Endangered and Threatened Species: Advance Notice of Proposed
Rulemaking to Designate Critical Habitat for Cook Inlet Beluga Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking; request for information.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), will be
designating critical habitat for the endangered Cook Inlet beluga whale
(Delphinapterus leucas) under the Endangered Species Act (ESA). The
designation will involve areas within Cook Inlet, Alaska. This advance
notice of proposed rulemaking (ANPR) identifies issues for
consideration and evaluation and solicits comments regarding these
issues.
DATES: Comments and information regarding the suggested designation
process and areas being considered for designation may be sent to NMFS
(See ADDRESSES) by May 14, 2009.
ADDRESSES: Comments may be sent to Chief, Protected Resources Division,
NMFS, P.O. Box 21668, Juneau, AK, 99802-1668.
FOR FURTHER INFORMATION CONTACT: Brad Smith, (907-271-3023) or Kaja
Brix (907-586-7235).
SUPPLEMENTARY INFORMATION:
Rulemaking Background
We are responsible for determining whether species, subspecies, or
distinct population segments (DPSs) are threatened or endangered and
for designating critical habitat for them under the ESA (16 U.S.C. 1531
et seq.). To be considered for listing under the ESA, a group of
organisms must constitute a ``species'' which is defined in section 3
to include ``any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.'' We consider a group of
organisms to be a DPS for purposes of ESA listing when it is both
discrete from other populations and significant to the species to which
it belongs (61 FR 4722; February 7, 1996). We found the Cook Inlet
beluga whale population segment to be reproductively, genetically, and
physically discrete from the four other known beluga populations in
Alaska, and significant because it is in a unique ecological setting
for the taxon, and its loss would result in a significant gap in the
taxon's range. Following completion of a Status Review of the Cook
Inlet beluga whale under the ESA, we published a proposed rule to list
this DPS as an endangered species on April 20, 2007. We subsequently
extended the date for final determination on the proposed action by 6
months, until October 20, 2008, as provided for by the ESA (section
4(b)(6)(B)(i)). A Final Rule to list the Cook Inlet beluga whale as an
endangered species was published on October 22, 2008.
Critical Habitat
Section 4(b)(2) of the ESA requires us to designate critical
habitat for threatened and endangered species ``on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical
habitat.'' This section grants the Secretary of Commerce (Secretary)
discretion to exclude any area from critical habitat if he determines
``the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat.'' The Secretary's discretion
is limited, as he may not exclude areas that ``will result in the
extinction of the species.''
The ESA defines critical habitat under section 3(5)(A) as: ``(i)
the specific areas within the geographical area occupied by the
species, at the time it is listed . . ., on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed . .
. upon a determination by the Secretary that such areas are essential
for the conservation of the species.''
Once critical habitat is designated, section 7 of the ESA requires
Federal agencies to ensure they do not fund, authorize, or carry out
any actions that will destroy or adversely modify that habitat. This
requirement is in addition to the section 7 requirement that Federal
agencies ensure their actions do not jeopardize the continued existence
of listed species.
Issues for Consideration and Evaluation
Section 4(a)(3) of the ESA requires us to designate critical
habitat for threatened and endangered species. We are currently in the
information-gathering phase, compiling information to propose critical
habitat for the Cook Inlet beluga whale. Sections 3, 4(a), and 4(b) of
the ESA suggest a number of questions the agency should consider when
designating critical habitat:
What areas were occupied by the species at the time of
listing?
What physical and biological features are essential to the
species' conservation?
Are those essential features ones that may require special
management considerations or protection?
Are there any areas outside those currently occupied that
are ``essential for conservation?''
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What are the benefits to the species of critical habitat
designation?
What economic and other relevant impacts would result from
a critical habitat designation?
What is the appropriate geographic scale for weighing the
benefits of exclusion and benefits of designation?
Will the failure to designate any particular area as
critical habitat result in the extinction of the species?
Answering these questions involves a variety of biological and
economic considerations. To ensure that we have the best scientific
data available, we are issuing this ANPR to solicit information before
issuing a proposed rule. During the information-gathering phase, we are
seeking public input and information (see ``Information Solicited''
below) and will gather and analyze the best available scientific data
to inform critical habitat designations. We will then initiate
rulemaking with the publication of a proposed designation of critical
habitat, opening a period for public comment and the opportunity for
public hearings.
Cook Inlet Beluga Whale Biology and Habitat Use
The beluga whale is a small, toothed whale in the family
Monodontidae, a family it shares with only the narwhal. Belugas are
also known as ``white whales'' because of the white coloration of the
adults. The beluga whale is a northern hemisphere species, ranging
primarily over the Arctic Ocean and some adjoining seas, where it
inhabits fjords, estuaries, and shallow water in Arctic and subarctic
oceans. Five distinct stocks of beluga whales are currently recognized
in Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea,
Bristol Bay, and Cook Inlet. The Cook Inlet population is numerically
the smallest of these, and is the only one of the five Alaskan stocks
occurring south of the Alaska Peninsula in waters of the Gulf of
Alaska.
A detailed description of the biology of the Cook Inlet beluga
whale may be found in the Proposed Listing Rule (72 FR 19854; April 20,
2007). Belugas generally occur in shallow, coastal waters, and while
some populations make long seasonal migrations, Cook Inlet belugas
reside in Cook Inlet year round. Data from satellite tagged whales
documented that Cook Inlet belugas concentrate in the upper Inlet at
rivers and bays in the summer and fall, and then tend to disperse into
deeper waters moving to mid Inlet locations in the winter. The
Traditional Ecological Knowledge (TEK) of Alaska Natives and systematic
aerial survey data document a contraction of the summer range of Cook
Inlet belugas. While belugas were once abundant and frequently sighted
in the lower Inlet during summer, they are now primarily concentrated
in the upper Inlet. This constriction is likely a function of a reduced
population seeking the highest quality habitat that offers the most
abundant prey, most favorable feeding topography, the best calving
areas, and the best protection from predation. An expanding population
would likely use the lower Inlet more extensively.
While mating is assumed to occur sometime between late winter and
early spring, there is little information available on the mating
behavior of belugas. Most calving in Cook Inlet is assumed to occur
from mid-May to mid-July (Calkins, 1983), although Native hunters have
observed calving from April through August (Huntington, 2000). Alaska
Natives described calving areas as the northern side of Kachemak Bay in
April and May, off the mouths of the Beluga and Susitna rivers in May,
and in Chickaloon Bay and Turnagain Arm during the summer (Huntington,
2000). The warmer waters from these freshwater sources may be important
to newborn calves during their first few days of life (Katona et al.,
1983; Calkins, 1989). Surveys conducted from 2005 to 2007 in the upper
Inlet by LGL, Inc., documented neither localized calving areas nor a
definitive calving season, since calves were encountered in all
surveyed locations and months (April-October) (McGuire et al., 2008).
The warmer, fresher coastal waters may also be important areas for
belugas' seasonal summer molt.
Cook Inlet belugas are opportunistic feeders and feed on a wide
variety of prey species, focusing on specific species when they are
seasonally abundant. Eulachon (locally referred to as hooligan or
candlefish) is an important early spring food resource for beluga
whales in Cook Inlet, as evidenced by the stomach of a beluga hunted
near the Susitna River in April 1998 that was filled exclusively with
eulachon (NMFS unpubl. data). These fish first enter the upper Inlet in
April, with two major spawning migrations occurring in the Susitna
River in May and July. The early run is estimated at several hundred
thousand fish and the later run at several million (Calkins, 1989).
In the summer, as eulachon runs begin to diminish, belugas rely
heavily on several species of salmon as a primary prey resource. Beluga
whale hunters in Cook Inlet reported one whale having 19 adult king
salmon in its stomach (Huntington, 2000). NMFS (unpubl. data) reported
a 14 foot 3 inch (4.3 m) male with 12 coho salmon, totaling 61.5 lbs
(27.9 kg), in its stomach.
The seasonal availability of energy-rich prey such as eulachon,
which may contain as much as 21 percent oil (Payne et al., 1999), and
salmon are very important to the energetics of belugas (Abookire and
Piatt, 2005; Litzow et al., 2006). Native hunters in Cook Inlet have
stated that beluga whale blubber is thicker after the whales have fed
on eulachon than in the early spring prior to eulachon runs. In spring,
the whales were described as thin with blubber only 2-3 inches (5-8 cm)
thick compared to the fall when the blubber may be up to 1 ft (30 cm)
thick (Huntington, 2000). Eating such fatty prey and building up fat
reserves throughout spring and summer may allow beluga whales to
sustain themselves during periods of reduced prey availability (e.g.,
winter) or other adverse impacts by using the energy stored in their
blubber to meet metabolic needs. Mature females have additional energy
requirements. The known presence of pregnant females in late March,
April, and June (Mahoney and Shelden, 2000; Vos and Shelden, 2005)
suggests breeding may be occurring in late spring into early summer.
Calves depend on their mother's milk as their sole source of nutrition,
and lactation lasts up to 23 months (Braham, 1984), though young whales
begin to consume prey as early as 12 months of age (Burns and Seaman,
1986). Therefore, the summer feeding period is critical to pregnant and
lactating belugas. Summertime prey availability is difficult to
quantify. Known salmon escapement numbers and commercial harvests have
fluctuated widely throughout the last 40 years; however, samples of
harvested and stranded beluga whales have shown consistent summer
blubber thicknesses.
In the fall, as anadromous fish runs begin to decline, belugas
again return to consume the fish species found in nearshore bays and
estuaries. This includes cod species as well as other bottom-dwellers
such as Pacific staghorn sculpin and flatfishes, such as starry
flounder and yellowfin sole. This change in diet in the fall is
consistent with other beluga populations known to feed on a wide
variety of food. Pacific staghorn sculpin are commonly found nearshore
in bays and estuaries on sandy substrate (Eschmeyer et al., 1983).
Flatfish are typically found in very shallow water and estuaries during
the warm summer months and move into deeper water in the winter as
coastal water temperatures cool (though some
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may occur in deep water year-round) (Morrow, 1980).
The available information indicates that Cook Inlet belugas move
throughout much of the Inlet in the winter months. They concentrate in
deeper waters in mid Inlet past Kalgin Island, with occasional forays
into the upper Inlet, including the upper ends of Knik and Turnagain
Arms. While the beluga whales move into the mid to lower Inlet during
the winter, ice cover does not appear to limit their movements. Their
winter distribution does not appear to be associated with river mouths,
as it is during the warmer months. The spatial dispersal and diversity
of winter prey likely influence the wider beluga winter range
throughout the mid Inlet.
There is obvious and repeated use of certain habitats by Cook Inlet
beluga whales. Intensive aerial abundance surveys conducted in June and
July since 1993 have consistently documented high use of Knik Arm,
Turnagain Arm, Chickaloon Bay and the Susitna River delta areas of the
upper Inlet. The high use of these areas by belugas is further
supported by data from satellite tagging studies.
We considered habitat type and value in our 2008 Cook Inlet Beluga
Conservation Plan (NMFS, 2008). That document stratified Cook Inlet
into three regions based upon patterns of beluga habitat use, labeling
them as valuable habitat types 1, 2, and 3. Type 1 habitat encompasses
habitats with intensive beluga use from spring through fall, and which
are important foraging and nursery habitats. Type 1 habitat includes
all of Cook Inlet northeast of a line drawn from 3 miles southwest of
the Beluga River across to Point Possession. Type 2 habitat is based on
less concentrated spring and summer beluga use, and known fall and
winter use areas. Type 2 habitat is located south of Type 1 habitat and
north of a line at 60.2500 north latitude. It also extends south along
the west side of the Inlet following the tidal flats into Kamishak Bay
around to Douglas Reef, and includes an isolated section within
Kachemak Bay. Type 3 habitat encompasses the remaining portions of
their range in Cook Inlet; the southern boundary is an opening into the
Gulf of Alaska approximately 85 km across from Cape Douglas to
Elizabeth Island. Type 1 habitat is believed to be the most valuable of
the three habitat types based on the frequency of use and its
importance as feeding and calving habitats.
Areas Occupied by the Species at the Time of Listing
The ESA specifies that critical habitat is that habitat occupied by
the species ``at the time it is listed'' (ESA section 3(5)(A)(i)). The
range of Cook Inlet belugas has been previously defined as the waters
of the Gulf of Alaska north of 58 oN. and freshwater tributaries to
these waters based on then-available scientific data (65 FR 34590, May
31, 2000; MMPA Sec. 216.15(g); 76 FR 62919, Oct. 22, 2008). There are
few beluga sightings in the Gulf of Alaska outside Cook Inlet. In the
1970s and 1980s, beluga sightings occurred across much of the northern
and central parts of Cook Inlet, but in the 1990s the summer
distribution narrowed to primarily the northernmost portions of Cook
Inlet. More of the Inlet was used by beluga whales during the spring,
summer, and fall during the 1970s and 1980s than is presently used.
However, because sightings continue to occur over the described range,
we consider the present range of this DPS to be occupied habitat. The
present range of the listed Cook Inlet beluga is limited to Cook Inlet
waters north of a line from Cape Douglas to Cape Elizabeth.
Critical Habitat Boundaries
NMFS' ESA regulations relevant to describing a geographical area
and ``specific areas'' state that ``each critical habitat will be
defined by specific limits using reference points and lines as found on
standard topographic maps of the area'' (50 CFR 424.12). These
regulations require that we also identify the state(s), county(ies), or
other local governmental units within which all or part of the critical
habitat is located. However, the regulations note that such political
units typically would not constitute the boundaries of critical
habitat. In addition, the regulations state that ephemeral reference
points (e.g., trees, sand bars) shall not be used in defining critical
habitat.
We seek the best scientific information available to make the
designations as precise as practicable. During the information-
gathering phase, we are seeking information that will allow us to map
specific areas, using reference points and lines as found on standard
nautical charts and topographic maps, that (1) are currently occupied
by the species and (2) contain essential physical and biological
features.
We have limited information on the distribution and occurrence of
Cook Inlet beluga whales within tributary waters of Cook Inlet.
Traditional Knowledge of Alaska Native hunters tells us these whales
have occurred several miles up the Susitna and Beluga Rivers in past
years, and whales have been observed above tidewater in the Knik River
at Turnagain Arm. We seek more information on habitat in estuaries and
freshwater as well as marine areas.
Physical and Biological Features Essential for Conservation
As described in ESA section 3(5)(A)(i), we will assemble the best
available information to identify those ``specific areas within the
geographical area occupied by the species at the time it is listed . .
. on which are found those physical or biological features . . (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection.'' Joint NMFS/FWS
regulations for listing endangered and threatened species and
designating critical habitat at section 50 CFR 424.12(b) state that the
agency ``shall consider those physical and biological features that are
essential to the conservation of a given species and that may require
special management considerations or protection'' (also referred to as
``Essential Features'' or ``Primary Constituent Elements''). Pursuant
to the regulations, such requirements include, but are not limited to
the following: (1) Space for individual and population growth, and for
normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4)
sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of a species. These regulations go on to
emphasize that the agency shall focus on essential features within the
specific areas considered for designation. These features ``may
include, but are not limited to, the following: roost sites, nesting
grounds, spawning sites, feeding sites, seasonal wetland or dryland,
water quality or quantity, geological formation, vegetation type, tide,
and specific soil types.''
We seek information on the identification of these essential
features for purposes of identifying critical habitat.
Special Management Considerations or Protection
Coupled with the identification of essential features, during the
information-gathering phase we seek input on whether the above
essential features may require special
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management considerations or protection. For example, unrestricted
passage and access between habitats within upper Cook Inlet may require
management of this waterway for projects that have the potential to
disrupt passage, such as dams or causeways. Similarly, essential prey
species such as king salmon may require special management to ensure
long-term viability and to prevent overharvest. We will document the
special management considerations and protection associated with the
essential features and relate these to the factors affecting the
species and/or critical habitat during formal rulemaking (see
``Schedule and Contents of Rulemaking'').
Areas Outside the Geographical Area Occupied by the Species
Section 3(5)(A)(ii) of the ESA defines critical habitat to include
specific areas outside the geographical area occupied by the species
only if the Secretary determines them to be essential for the
conservation of the species. Section 3(3) of the ESA defines
conservation as ``the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this Act are no longer
necessary.'' NMFS' ESA regulations at 424.12(e) state that the agency
``shall designate as critical habitat areas outside the geographical
area presently occupied by a species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
species.'' We would thus include areas outside the occupied
geographical area only if areas within the occupied geographical area
were not adequate to support conservation. We seek information on the
adequacy of the currently occupied habitat to support conservation of
the Cook Inlet beluga DPS, and whether areas that are unoccupied might
be ``essential for conservation.
Determining Economic and Other Relevant Impacts
Section 4(b)(2) of the ESA requires that the Secretary, in deciding
to designate critical habitat, consider economic impacts, impacts to
national security, and any other relevant impacts of such designation.
We seek information relating to any of these impacts.
The ESA gives the Secretary discretion to exclude any area from
critical habitat if the benefits of such exclusion outweigh the
benefits of specifying the area as part of the critical habitat. During
the information-gathering phase, we seek information regarding the
benefits of excluding particular areas from the critical habitat
designation and the benefits of including each such area as part of the
critical habitat designation. We seek information that would allow us
to monetize these effects to the extent practicable, as well as
information on qualitative impacts to these effects. We also seek input
on what approaches would allow us to determine if excluding a
particular area from designation will result in the extinction of the
species.
Determining Conservation Value
We seek information on the conservation value of potential critical
habitat, based on the quality and quantity of the essential feature(s).
We also seek input on the best methods for evaluating the conservation
value of potential critical habitat areas. We are interested in
information relevant to monetizing the conservation value of an area,
to the extent useful measurement can be made, and/or to ranking the
conservation benefits in an ordinal manner, if full monetization is not
practicable.
The Appropriate Geographic Scale for Weighing the Benefits of Exclusion
and Benefits of Inclusion
Cook Inlet is a vast region occupying a variety of habitat types
and human presence. Much of it is undeveloped, while portions of the
Inlet are adjacent to the most populated areas of the State.
Consideration of areas for exclusion presents a problem of scale,
wherein we wish to maintain the ecological perspective of important
habitat for Cook Inlet beluga whales while allowing meaningful
distinction between areas to be evaluated under section 4(b)(2).
In some cases, it may be useful to consider habitat units at a
finer scale, for example, along the Municipality of Anchorage's
waterfront on lower Knik Arm. We seek input on the scale to be used in
this analysis for the balancing test.
Information Solicited
Past critical habitat designations have generated considerable
public interest. Therefore, we believe it is important to engage the
public early and often in the rulemaking process. This ANPR is a key
first step, and we encourage all interested parties to submit comments
regarding the issues raised in this notice.
In accordance with agency regulations at 50 CFR 424.13, we will
consult as appropriate with affected states, interested persons and
organizations, other affected Federal agencies, and, in cooperation
with the Secretary of State, with the country or countries in which the
species concerned are normally found or whose citizens harvest such
species from the high seas. Data reviewed may include, but are not
limited to, scientific or commercial publications, administrative
reports, maps or other graphic materials, information received from
experts, and comments from interested parties. Specific data needs
include:
(1) Information on the past and current numbers and distribution of
Cook Inlet beluga whales;
(2) Information describing the habitat type and quality of marine,
estuarine, and freshwater habitats for all Cook Inlet beluga whales;
(3) Within areas occupied by Cook Inlet beluga whales, information
regarding the physical and biological features that are essential to
the conservation of this DPS;
(4) Any special management considerations or protection currently
associated with essential physical and biological features within areas
occupied by Cook Inlet beluga whales, such as any land use management
plan, a state statute, a municipal ordinance, or other binding local
enactment;
(5) Any specific areas within the range of Cook Inlet beluga whales
that may not qualify for critical habitat designation because they lack
essential physical or biological features or may not require special
management consideration or protections;
(6) Any specific areas outside the area occupied by Cook Inlet
beluga whales that are essential for their conservation;
(7) Any specific areas that should be excluded from critical
habitat designation because the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat;
(8) Any current or planned activities in the range of Cook Inlet
beluga whales and their possible impacts on areas that may qualify as
critical habitat;
(9) Any economic or other relevant impacts that may result from
designating critical habitat, regardless of whether those impacts are
attributable co-extensively to other causes, in particular those
impacts affecting small entities;
(10) Other benefits of excluding or designating a specific area as
critical habitat; and
(11) Potential peer reviewers for proposed critical habitat
designations, including persons with biological and economic expertise
relevant to the designations.
As described in a joint NMFS/FWS policy on ESA information
standards
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published on July 1, 1994 (59 FR 34271), we will rely on the best and
most comprehensive technical information available; gather and
impartially evaluate information that disputes official positions;
document evaluation of information; use, retain, and reference primary
and original sources of information; and conduct management-level
review of documents to verify and assure the quality of the science
used to make the critical habitat designations. We will review all
comments and information resulting from this ANPR prior to making any
proposed designations and will include such documents in our public
record. The public may review information submitted by contacting NMFS
(see ADDRESSES and FOR FURTHER INFORMATION CONTACT) or via the internet
at http://www.fakr.noaa.gov/.
Dated: April 7, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. E9-8519 Filed 4-13-09; 8:45 am]
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