[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Rules and Regulations]
[Pages 20180-20214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8361]
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Vol. 76
Monday,
No. 69
April 11, 2011
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Species: Designation of Critical Habitat for
Cook Inlet Beluga Whale; Final Rule
Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Rules
and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 090224232-0457-04]
RIN 0648-AX50
Endangered and Threatened Species: Designation of Critical
Habitat for Cook Inlet Beluga Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), designate
critical habitat for the Cook Inlet beluga whale (Delphinapterus
leucas) distinct population segment (DPS) under the Endangered Species
Act (ESA). Two areas are designated, comprising 7,800 square kilometers
(3,013 square miles) of marine habitat. In developing this final rule
we considered public and peer review comments, as well as economic
impacts and impacts to national security. We have decided in the final
rule to exclude the Port of Anchorage (POA) in consideration of
national security interest. Additionally, consistent with the proposed
rule, portions of military lands were determined to be ineligible for
designation as critical habitat. We solicited comments from the public
on all aspects of the proposed rule, and conducted four public hearings
on the action. Along with the proposed rule, we published a draft
economic impacts analysis, entitled ``Draft RIR/4(b)(2) Preparatory
Assessment/IFRA for the Critical Habitat Designation of Cook Inlet
Beluga Whale.'' This economic analysis has been completed to support
the final designation. See ``Final RIR/4(b)(2) Preparatory Assessment/
FRFA for the Critical Habitat Designation of Cook Inlet Beluga Whale''
for a discussion of these topics.
DATES: This rule will become effective on May 11, 2011.
ADDRESSES: The final rule, maps, status reviews, and other materials
supporting this final rule can be found on our Web site at: http://www.fakr.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Brad Smith (907-271-3023), Kaja Brix
(907-586-7235), or Marta Nammack (301-713-1401).
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 these species under the Endangered
Species Act (ESA) (16 U.S.C. 1531 et seq.). On October 22, 2008, we
published a Final Rule to list the Cook Inlet beluga whale as an
endangered species (73 FR 62919). At the time of listing, we announced
our intent to propose critical habitat for the Cook Inlet beluga
whales. This critical habitat was subsequently proposed on December 2,
2009 (74 FR 63080). The proposed rule's critical habitat for the Cook
Inlet beluga whale was determined by considering information received
in response to our Advance Notice of Proposed Rulemaking, sighting
reports, satellite telemetry data, The Traditional and Ecological
Knowledge of Alaska Natives (TEK), scientific papers and other
research, the biology and ecology of the Cook Inlet DPS of beluga
whales, and information indicating the presence of one or more of the
identified primary constituent elements (PCEs) within certain areas of
their range. The proposed rule identified ``specific areas'' within the
geographical area occupied by the Cook Inlet beluga whale to be
proposed as critical habitat.
We considered various alternatives to the critical habitat
designation for the Cook Inlet beluga whale. The alternative of not
designating critical habitat for the Cook Inlet beluga whale would
impose no economic, national security, or other relevant impacts, but
would not provide any conservation benefit to the species. This
alternative was rejected because such an approach does not meet the
legal requirements of the ESA and would not provide for the
conservation of Cook Inlet beluga whale. The alternative of designating
all eligible occupied habitat areas also was considered and rejected,
because some areas within the occupied range were not considered to be
critical habitat, and did not contain the identified physical or
biological features that are essential to the conservation of the Cook
Inlet beluga.
An alternative to designating critical habitat within all eligible
occupied areas is the designation of critical habitat within a subset
of these areas. Under section 4(b)(2) of the ESA, we must consider the
economic impacts, impacts to national security, and other relevant
impacts of designating any particular area as critical habitat. We have
the discretion to exclude any particular area from designation as
critical habitat if the benefits of exclusion (i.e., the impacts that
would be avoided if an area were excluded from the designation)
outweigh the benefits of designation (i.e., the benefits to the Cook
Inlet beluga whale if an area were designated), so long as exclusion of
the area will not result in extinction of the species. Exclusion under
section 4(b)(2) of the ESA of one or more of the areas considered for
designation would reduce the total impacts of designation. The
determination to exclude any particular areas depends on our ESA
4(b)(2) analysis, which is described in detail in the ESA 4(b)(2)
analysis report.
This final rule includes several small changes to the areas
proposed as critical habitat and, importantly, excludes under Section
4(b)(2) the Port of Anchorage (POA) from designated critical habitat
for reasons relating to national security. We corrected errors within
the proposed rule's descriptions of the boundaries for this critical
habitat so that the final rule utilizes the coordinate system of
degrees, decimal-minutes. We have also changed the sentence structure
of the PCEs concerning noise and toxins in the final rule to improve
clarity.
The total quantifiable economic impact associated with this final
rule is estimated to be between $157,000 to $472,000 (discounted at 7
percent) or $187,000 to $571,000 (discounted at 3 percent). While we
have excluded a small portion of the area originally proposed as
critical habitat for national security reasons (the POA), that
exclusion does not affect the economic impact analysis because the
small size of the area indicates that the potential cost-savings are
likely nominal (i.e., consultations will continue to occur to ensure
proposed activities in those areas do not jeopardize the species or
adversely modify or destroy adjacent areas of critical habitat).
Additional economic impacts, both costs and benefits, that were not
amenable to quantification, but nonetheless important to a complete
evaluation of this action, were identified and analyzed qualitatively.
Both the quantitative and qualitative economic effects of the final
rule are presented, in detail, in the Final Regulatory Impact Review/
4(b)(2) Preparatory Assessment/Final Regulatory Flexibility Analysis.
We promulgate this final rule because it results in a critical habitat
designation that provides for the conservation of the Cook Inlet beluga
whale, without economic effects of sufficient significance to warrant
an exclusion from designation on that basis alone. Other areas within
the species' range did not contain the identified physical or
biological features that are essential
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to the conservation of the Cook Inlet beluga. This alternative also
meets the requirements under the ESA and our joint NMFS-USFWS
regulations concerning critical habitat.
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 that inhabits
fjords, estuaries, and shallow waters of the 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).
Summary of Comments and Responses
We requested comments on the proposed rule to designate critical
habitat for Cook Inlet beluga whales and supporting documents (74 FR
63080; December 2, 2009). To facilitate public participation, the
proposed rule was made available on our regional web page, and comments
were accepted via standard mail, e-mail, and through the Federal
eRulemaking portal. In addition to the proposed rule, several draft
documents supporting the proposal, including an economic report, were
posted. In response to comments, the original 60-day comment period was
extended an additional 30 days, ending on March 3, 2010. Public
hearings were held in Kenai, Soldotna, Wasilla, and Anchorage, Alaska.
We received 135,463 individual submissions in response to the
proposed rule (including public testimony during the four hearings).
This included 134,959 form letter submissions and 504 unique
submissions. The majority of comments concerned economic and other
impacts for consideration for exclusions, the regulatory process for
critical habitat designation, legal issues, essential features or PCEs,
additions to critical habitat, and biological issues.
We have considered all public comments, and provide responses to
all significant issues raised by commenters. We have not responded to
comments outside the scope of this rulemaking, such as whether NMFS'
prior decision to list the Cook Inlet beluga whale as endangered was
proper. We have categorized comments by issue and, where appropriate,
combined similar comments.
General Comments on Critical Habitat
Comment 1: In the proposed rule's discussions at 74 FR at 63084,
NMFS has not listed activities that will deter use of or access to Area
1 by beluga whales.
Response: In the referenced paragraph, we simply endeavored to
provide a description of the habitat values and associations within the
proposed areas, along with a discussion of why these areas may be
sensitive or vulnerable to various stressors. Later in the proposed
rule, we provided a brief description of those activities that may
adversely modify critical habitat, or that may be affected by the
designation. See 74 FR at 63089. Examples of activities that may deter
use or access could include causeways, dams, bridges, or tidal
generation projects.
Comment 2: Cook Inlet anadromous fish runs are healthy and
appropriately protected under existing regulatory mechanisms.
Response: We recognize and acknowledge that the current management
structure of the salmon fisheries has generally provided for the
sustained harvest and productivity of salmon in Cook Inlet. However, it
should also be noted that there are problems inherent with any
management system. The size of several king (Chinook) salmon returns in
2009 and 2010 was substantially below average, resulting in closures of
sport and commercial fisheries in the Inlet. The Deshka River king
salmon runs were extremely low in 2008 and 2009, resulting in closures.
The Susitna River sockeye salmon runs failed to meet minimum escapement
goals for 5 of 7 years between 2001 and 2007. Sockeye commercial
harvests for the Northern District of Cook Inlet fell from an average
of 180,000 fish in the 1980s to an average of 26,000 since 2002. The
Alaska Department of Fish and Game forecasts Kenai River sockeye runs
to be below average for 2010, citing management decisions leading to
over-escapement as a contributing factor.
Comment 3: The final rule should acknowledge the riparian
protections under the State's forest practices, as well as other
regulations that protect water quality and other protections.
Response: While there exist myriad environmental and conservation
laws, restrictions, and practices at State and local levels, these are
not pertinent to this designation unless they concern whether the
identified essential features of that habitat ``may require special
management or protection.'' The fact that the State and local
governments have instituted such measures is some evidence that these
essential features do in fact require special management.
Comment 4: NMFS should provide supporting evidence for its
identification of the tendency for belugas to occur in high
concentrations, predisposing them to harm from events such as oil
spills, as reason for designation of Area 1. The statement is
speculative. This commenter also challenged our evidence that oil
spills are a threat to beluga whales or predisposes them to harm, that
these areas are susceptible to oil spills, or that spills are likely to
occur here.
Response: We had not proposed this fact to be a ``reason'' for
designating critical habitat. We disagree this statement is
speculative, as there are multiple lines of evidence, including NMFS'
2008 Conservation Plan for Cook Inlet Beluga Whale and many peer
reviewed studies, that beluga whales occur seasonally in high densities
within specific areas of the upper Inlet. Our purpose in these
statements was not to provide an exhaustive assessment or analysis of
oil spills, but to indicate the ecological attributes of Area 1 to Cook
Inlet belugas and to recognize the sensitivities imposed by their habit
of occupying relatively small, enclosed areas for feeding and other
purposes during the open water months. The occurrence of these whales
in high densities here not only predisposes them to potential harm from
hazardous material releases, but also disease outbreaks, harassment,
poaching, and other factors.
Comment 5: Additional research is needed to support proper
management of the Cook Inlet beluga whales including this critical
habitat designation.
Response: We agree generally that additional research is needed,
and we identified in the 2008 Conservation Plan the need to ``improve
our understanding of the biology of Cook Inlet beluga whales and the
factors limiting the population's growth.'' See: Conservation Plan for
the Cook Inlet Beluga Whale (Oct. 2008) at 63. We disagree, however,
that additional research is needed to support the designation of
critical habitat. The ESA requires NMFS to designate critical habitat
concurrently with the listing decision, 16 U.S.C. 1533(a)(3)(A)(i), and
to base that decision on the ``best scientific data available,'' id.,
section 1533(b)(2). We have used the best scientific data available in
designating critical habitat
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for the Cook Inlet beluga whale. We are not required to conduct field
research prior to designating critical habitat.
Comment 6: NMFS must link its critical habitat determinations to
credible threats, and must fully explain its rationale for designating
Area 2 as critical habitat.
Response: There is no requirement to link designation of critical
habitat with threats. We are required to base critical habitat
designations on physical or biological features essential to the
conservation of the species and which may require special management
considerations or protection, as we have done in this rule. Our
discussion of potential threats to critical habitat was provided so the
reader might better understand the proposed designation in context of
the biology of the Cook Inlet beluga whales and the various stressors
that may occur in these areas. Such a discussion also assists in the
description and evaluation of those activities which may adversely
modify the critical habitat or otherwise be affected by the
designation. We believe the Proposed Rule presented the best scientific
data and information available which justify the inclusion of Area 2 as
critical habitat. We described the known or probable habitat attributes
of this area, including use for fall and winter feeding, and discussed
distribution and dive behavior of these whales within the area, which
also support the feeding and overwintering habitat values here. We
identified several essential physical and biological features of
critical habitat for Cook Inlet beluga whales, established that those
features were found within Area 2, and confirmed that they may require
special management or protections, as required by the ESA. We agree
that present knowledge of the habitat characteristics of Area 2 is less
than that of Area 1, and that it is desirable to gather additional data
to better understand the habitat needs of beluga whales here. However,
we do not find that the existing information, nor the discussion and
analysis of the area within the Proposed Rule, were insufficient.
Further, none of the commenters provided data or information
contradicting the data on which the proposed rule relied.
Physical or Biological Features Essential for Conservation (PCEs)
Comment 7: We received many comments concerning the PCEs, or
essential features, indicating some confusion and uncertainty regarding
their function and significance. Others felt that our identification of
PCEs was flawed because these are not presently impeding the recovery
of Cook Inlet beluga whales, or that the PCE thresholds are set
unreasonably. Still others believe that a PCE equates to adverse
modification or other objectionable standard by which various
activities and projects would be prohibited.
Response: The ESA defines critical habitat in terms of essential
physical or biological features, and Federal regulations require us to
focus on these features in the designation process. It is not necessary
that a feature be presently impaired or limiting, only that it provide
an essential service or function to the conservation of the listed
species and may require special management considerations or
protection. Also, a PCE is not meant to describe a threshold condition
beyond which critical habitat would be adversely modified or destroyed.
Rather, potential threats to the PCEs will often be the factors
evaluated in making determinations regarding whether a proposed Federal
action will adversely modify or destroy critical habitat. For example,
we believe an essential physical feature to be the unrestricted passage
and movement of beluga whales among critical habitat sites. A project,
such as a dam, could potentially isolate parts of the whales' critical
habitat and prevent movement among the sites. In evaluating the effects
of such a project under section 7 of the ESA, we would consider whether
this isolation would impact beluga whales to a degree that critical
habitat was no longer functional to the conservation of the species. If
it caused the loss of either of these functional values, we would
consider this adverse modification. However, the mere fact that the
project may isolate parts of the critical habitat or prevent movement
among those sites would not, in itself, constitute adverse modification
or destruction of critical habitat. Similarly, a project that caused
whales to abandon critical habitat may not necessarily result in a
determination of adverse modification or destruction of critical
habitat, unless such abandonment would preclude the conservation of
these whales.
Comment 8: The essential features identified in the proposed rule
are important for beluga survival, but NMFS has not demonstrated these
features are limiting the production or recovery of these whales.
Response: The ESA defines critical habitat in terms of those
physical or biological features that are essential to the conservation
of the species and which may require special management considerations
or protection. The ESA does not define the word ``essential.'' We agree
with the commenter that the identified features are important for
beluga conservation, and believe this importance is such that they may
be considered ``essential.'' We disagree, however, that the features
must be found to be limiting to the species before they may be
considered essential. A limiting factor may be described as one that
controls a system or species (such as air), or one that is present in
the smallest supply relative to the demands of the system/species
(perhaps a prey species). In either case, the ESA contains no
requirement that essential features are restricted to those that may be
limiting. Our approach will vary to fit the circumstances of a
particular species.
Comment 9: The identified PCEs lack specificity (e.g., ``The
absence of toxins or other agents of a type or amount harmful to beluga
whales''). NMFS should identify threshold values for all PCEs as it has
for in-water noise.
Response: The ESA requires that we premise the designation of
critical habitat on essential features, and the regulations at 50 CFR
424.12(b) describe the PCEs as including, but not limited to, roost
sites, nesting grounds, spawning sites, water quality or quantity,
tides, and vegetation types. Clearly, these descriptions are general in
nature and, we believe, far less descriptive than those presented in
the proposed rule. We relied on the best scientific data available to
provide as much specificity as possible. None of the commenters have
provided data allowing us to further refine our description of the
PCEs. The condition of adverse modification will be determined, in
part, on whether an activity impairs the functional value of the
essential features to the point that they cannot provide for the
conservation of the species. In adding as much description to these
features as permitted by the best scientific data available (e.g., not
just ``pollutants,'' but the ``absence of toxins or other agents of a
type or amount harmful to beluga whales'') it is our intent to avoid
the situation where any activity that may be associated with one or
more essential feature would be considered as causing the adverse
modification or destruction of critical habitat. We have also modified
the wording of this PCE in the final rule to improve clarity.
Comment 10: NMFS needs to present data to support its explanation
for equating ``mudflats'' with ``shallow and nearshore waters proximate
to certain tributary streams.'' NMFS should defend its rationale for
delimiting this feature to waters within the 30-foot (9.1 m) depth
contour. NMFS has arbitrarily expanded this PCE beyond that described
in Goetz et al. (2007).
[[Page 20183]]
Response: Relying on the best scientific data available, the
proposed rule explains the habitat attributes and importance of
nearshore areas to Cook Inlet beluga whales. These whales selectively
occupy these areas during the ice-free months, and may display year-
round association with the nearshore zones of Cook Inlet. We believe
this affinity is due to feeding strategies and perhaps breeding,
calving, molting, and predator avoidance. Research on beluga whales
elsewhere has found beluga distribution may be associated with depth
and bottom structure, as well as prey abundance. Using these data, we
next considered the results of Goetz et al. (2007) which found
significant associations between summer distributions of Cook Inlet
belugas, mudflats, and flow accumulation. The Goetz et al. (2007) paper
is important in that it provides the first spatial representation of
this habitat attribute, and supports the observations of other research
as well as the TEK of Alaskan Natives. The paper does not incorporate
data on other factors potentially relevant to beluga distribution in
Cook Inlet such as water temperatures, turbidities, salinities, or the
fish species and strength of fish runs for these waters. That paper
states ``The occurrence of beluga whales near stream mouths may reflect
a feeding strategy whereby belugas take advantage of highly-
concentrated fish runs in shallow channels where they are easy to
catch'', and found the majority of sightings were within 11.5 km of
medium flow accumulation inlets. The Goetz et al. (2007) paper,
however, is not the sole scientific basis for our determination, nor is
it necessarily the most significant. It is clear that many of the areas
identified as in the Goetz et al. (2007) paper as ``mudflats,'' are
rarely associated with beluga sightings. In reviewing the best
scientific data available, we found that whereas the Goetz et al.
(2007) paper's use of ``mudflats'' implies a condition of the seafloor
material, this feature is best described by its tidal exposure.
Therefore, in identifying the PCE, we used the qualifier of waters less
than 30 feet (9.1 m) in depth to clarify what was described as
``mudflats'' by Goetz et al. (2007). We also felt that, while this
feature covers a range of over 7 miles (11.5 km) in which most whales
have been found, a radial distance of 5 miles (8.0 km) from the high
and medium flow distribution inlets is more descriptive of the actual
distribution of these whales and the essential feature, in
consideration of the best aerial and satellite data available.
Comment 11: NMFS relied too heavily on Goetz et al. (2007), a paper
with serious flaws. NMFS should have incorporated fish runs into its
models, and has arbitrarily ignored this important element.
Response: We relied on the best scientific data and information
available, including models such as the one developed by Goetz et al.
(2007), in preparing the proposed rule. We did not develop new models
as part of the rulemaking, and the ESA does not require us to do so or
to conduct field research. Rather, we are required to designate
critical habitat on the basis of the best scientific data available.
Goetz et al. (2007)'s research and paper were not conducted to define
critical habitat. Goetz et al. (2007) exists as one of several sources
we considered during this rulemaking. Both NMFS and the paper itself
recognize the paper's limitations from not including various physical
and biological variants, most notably anadromous fish species and run
strengths. Despite this information, the list of high and medium flow
accumulation waters reported in the paper indicate that all such rivers
are anadromous fish waters and that flow accumulation has some
association, and may be a reasonable proxy, for anadromous fish. The
inclusion of fish species or numbers of anadromous fish utilizing these
waters would not change the list, but could only add another
descriptive layer to this essential feature. The utility of such
additional description is unclear and probably non-existent.
Comment 12: NMFS has incorrectly used Goetz et al. (2007) to
identify PCEs within Area 2, particularly for winter periods for which
this paper did not include data. Applying this model to winter has
resulted in NMFS incorrectly identifying habitats that are impossible
or highly improbable for belugas to inhabit.
Response: While we included the Goetz et al. (2007) paper in our
consideration of scientific research and literature related to critical
habitat and adopted its conclusions as representative and supportive of
our proposed designation, we are not necessarily in agreement with
every statement made within the paper. This is particularly true for
the paper's assertion that sea ice in winter makes inhabiting shallow
waters too hazardous for marine mammals. While the paper does not
define what depths were considered to be ``shallow,'' there is ample
evidence that beluga whales occur in such areas during winter. Indeed,
beluga whales are variously described as ``ice associated'' or ``ice
dependent'' species, and we know of no beluga population that is not
found within areas subject to seasonal ice formation. Satellite tagging
data (see NMFS' 2008 NMFS Conservation Plan for the Cook Inlet Beluga
Whale) from Cook Inlet beluga whales indicates that these whales are
found in nearshore areas during winter; in fact these data show whales
occupying the heads of Turnagain and Knik Arms during periods in which
maximum ice coverage would be expected.
While Goetz et al. (2007) did not include (or have access to)
distribution data for winter months, Goetz et al. (2007) presents other
information demonstrating the importance of nearshore areas proximate
to anadromous fish streams as an essential habitat attribute. This
attribute within Area 2 exists during the late summer and fall months,
as whales move west and south transitioning from summer habitat in the
upper Inlet to winter habitats. During this time, we believe the whales
take advantage of the late coho runs along the west side of Cook Inlet.
This behavior occurs well before seasonal ice formation (sea ice is
much less prevalent in the lower Inlet), and we believe it is
reasonable to assume the physical qualities of nearshore feeding
habitat near salmon streams in July are similar to those for nearshore
feeding habitat near salmon streams in October. The 2008 NMFS
Conservation Plan for the Cook Inlet Beluga Whale includes sighting
data of beluga whales in the lower Inlet, and suggests these areas were
important habitat sites when the beluga whales were more abundant.
Finally, we emphasize the critical habitat boundaries are not drawn
around the essential features/PCEs. Rather, these features delineate
critical habitat from non-critical habitat. The best scientific data
available indicates that the critical habitat area referred to as Area
2 contains anywhere from one to all of the identified physical or
biological features essential to the whales' conservation.
Comment 13: NMFS should list all the waters it considers to be high
and medium flow accumulation rivers for purposes of describing the
PCEs.
Response: We have included this list on our Regional website (see
ADDRESSES above).
Comment 14: NMFS should include pink salmon, Pacific herring, and
long-finned smelt as PCEs.
Response: We identified important prey species as essential
biological features or PCEs based on the results of research on fatty
acid signatures and stable isotope analysis from beluga whale tissue,
stomach samples from
[[Page 20184]]
Cook Inlet belugas, and traditional knowledge. We did not find the
proposed species were well-supported by these sources and cannot
determine that they are essential based on current knowledge.
Comment 15: NMFS' proposed PCE ``The absence of toxins or other
agents of a type or amount harmful to beluga whales'' is too vague.
There are readily available data defining the types and amounts of
contaminants that would be harmful to beluga whales, but NMFS has not
used this information.
Response: Please see our earlier response to comment 9
regarding specificity within the definitions of essential features and
PCEs. We relied on the best scientific data available in designating
critical habitat for the Cook Inlet beluga whale. We are not aware of
any existing data that would allow for greater specificity concerning
harmful contaminant levels in beluga whales, and none of the commenters
provided any or indicated a specific source of such data. We recently
contracted for an assessment of risks to beluga whales from chemical
exposures (URS, 2010), that found ``reliable and quantitative
information that related measured body burdens to observed adverse
effects is lacking, especially within a dose-response context.''
Information relating to the presence of persistent organics, measured
primarily in the whales' blubber, exists, and there are some studies on
the presence of methylmercury and other metals, but very little or no
toxicity information is available for beluga whales and other marine
mammals regarding the majority of harmful chemicals. The assessment
report goes on to state that, even for those few studies in which some
threshold values are presented for other species, such studies are
fraught with uncertainty and should be viewed only as a preliminary
comparison to determine whether further evaluation is warranted.
We believe that, had we employed threshold values of chemicals
which arguably cause ``harm'' to other species, we would have created
an assessment methodology for adverse modification of critical habitat
that could be both insufficiently protective of these whales and
unnecessarily restrictive. The toxin PCE as promulgated provides the
best level of specificity possible in light of the best scientific data
available. This PCE does not simply include all pollutants; it includes
only those of a type and quantity/concentration harmful to beluga
whales. Moreover, it is important to note that the introduction of any
pollutants that are harmful to beluga whales would require the
evaluation of the effect of such pollutants on the PCE, but it would
not necessarily equate to adverse modification. We would evaluate the
proposal by considering the implications of the harmful pollutants to
the PCEs and to the conservation of Cook Inlet beluga whales.
Comment 16: Unrestricted passage between habitat areas is
consistent with the knowledge of the spatial and temporal dynamics of
the primary beluga prey species, yet NMFS has shown no evidence that
passage is being restricted to the extent of limiting productivity or
recovery.
Response: Please refer to our earlier response to comment
7 concerning limiting aspects of habitat and their relation to
essential features and PCEs. We agree that no evidence currently exists
indicating that passage among critical habitat areas is impeded to the
extent of preventing recovery. The validity of this condition as a PCE
is not dependent on whether it is limiting to the population. The
Conservation Plan includes discussion of various threats to these
whales, many of which could impede access among critical habitat sites.
An action that would result in restricted passage would not necessarily
result in a finding of adverse modification. Under section 7 of the
ESA, we will evaluate a proposed Federal action's potential to destroy
or adversely modify critical habitat by considering the implications of
any restriction on the movement among critical habitat sites to the
conservation of Cook Inlet beluga whales.
Comment 17: NMFS's proposed PCE ``The absence of in-water noise at
levels resulting in the abandonment of habitat by Cook Inlet whales''
is too vague. NMFS should provide an objective, measurable noise level
in the definition of this PCE.
Response: We developed each PCE based on the best scientific data
available. Because empirical data exist to help us understand the noise
levels at which beluga whales may react behaviorally or become injured,
it is reasonable to assume quantified standards could be developed in
the future for this PCE. Existing data, however, are based on
relatively few animals held in captivity and the qualitative results of
various field observations and research. We currently recognize in-
water noise exceeding 120 dB re 1 [mu]Pa as the threshold for
harassment of marine mammals presented with a continuous noise source,
and 160 dB re 1 [mu]Pa for impulsive noise. However, ambient
(background) in-water noise levels in lower Knik Arm presently exceed
120 dB, and we felt it unnecessarily restrictive to describe this
standard as a PCE. Similarly, the 160 dB threshold relates to
harassment. We do not have a standard value for the level of noise
above which beluga whales may permanently abandon habitat. From
research and monitoring of in-water work in Cook Inlet, it is apparent
that beluga whales have not abandoned habitat areas due to temporary
exposures to noise at this level. Therefore, this numeric standard may
also be too restrictive. There exists considerable variability in the
reaction of whales to noise, depending on the nature of the noise, life
history, behavior, sex, context, tolerance, and adaptation. The science
of marine mammal acoustics is very complex and made more difficult
within the dynamic setting of Cook Inlet. As a result, we can only
assign a qualitative standard to this PCE unless and until data become
available allowing us to assign a quantitative standard.
Comment 18: NMFS should describe the PCE addressing in-water noise
as ``the absence of in-water noise that results in adverse impacts to
the species' survival and recovery.'' The commenter points out that
noise below levels that may cause whales to abandon habitat areas could
still have severe impacts on these animals.
Response: The commenter's proposed PCE is not that functionally
different from the one proposed in one important respect. When we
evaluate a Federal action under section 7 of the ESA, we will consider
whether the action will introduce noise that will result in the
abandonment of critical habitat and whether such abandonment will, in
turn, affect the whales' conservation. We will also consider whether
the noise would affect the whales' survival because section 7 directs
Federal agencies to ensure that their actions do not (a) result in the
destruction or adverse modification of critical habitat or (b)
jeopardize the continued existence of the species. The commenter's
proposed PCE combines these two standards (and conflates them, a
formulation which the Ninth Circuit struck down in Gifford Pinchot Task
Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004)).
Comment 19: The PCE concerning noise should be re-worded to reduce
the noise levels permitted to 120 dB or lower, reduce the duration of
allowable noise, and reduce the frequency of anthropogenic noise.
Response: The identified essential features or PCEs are not
intended to be limitations or stipulations. They describe various
features of the
[[Page 20185]]
environment that we consider essential to the conservation of these
whales. We do not believe in-water noise levels below 120 dB re 1
[mu]Pa are necessary to conserve these whales in all cases. In fact,
ambient noise in areas in which these whales occur, such as lower Knik
Arm, often exceeds 120 dB. Similarly, behavioral reaction and other
consequences of noise exposure (duration and frequency) are difficult
to predict. For this reason, we describe this PCE in terms of its
effect (abandonment of habitat) rather than a finite quantity or level.
Comment 20: NMFS fails to identify the existing empirical data, or
explain the science and rationale used in establishing the noise PCE,
and must provide this information along with an additional public
comment period.
Response: See previous response. The proposed rule stated that
empirical data exist on the reaction of beluga whales to in-water noise
for harassment and injury, but are lacking regarding reactions such as
avoiding certain areas. The NMFS' 2008 Conservation Plan (pp. 58-60,
66-67) provides a detailed description of the issue of noise and Cook
Inlet belugas, and includes references to applicable research and
traditional knowledge accounts which support the proposed rule's
assessment of the importance of sound to beluga whales.
Comment 21: NMFS needs to acknowledge that beluga whales have co-
existed with anthropogenic noise in Cook Inlet for decades and that
there is no information or data to indicate noise is a threat or
contributing factor to their abundance.
Response: Our discussion on the effects of noise in the proposed
rule is consistent with the 2008 Conservation Plan, which identified
noise as a potential threat. That plan presents several reasons why
noise may be considered a threat, including the facts that noise is
known to cause injury or behavioral changes to beluga whales, and that
TEK observations associate diminished presence of belugas with in-water
noise. The commenter is correct in stating that no data currently exist
to place in-water noise as a contributing factor in the decline of the
Cook Inlet belugas.
Comment 22: NMFS needs to provide further specificity and
thresholds in its description of the PCEs for this critical habitat.
Response: As discussed above, we defined each PCE as specifically
as we could, in light of the best scientific data available. Specific,
quantitative threshold values would be useful in the formulation of any
PCE (e.g., a PCE is gravel between 3.0cm and 7.0cm in diameter, as
opposed to spawning material). We are not aware, and none of the
commenters provided sources, of any existing data that would allow for
greater specificity in the formation of the PCEs for the Cook Inlet
beluga whales than that which we used. The ESA does not require us to
conduct field research to obtain such data. In light of the time lines
for the designation of critical habitat, such research was not
feasible.
Comment 23: NMFS has taken a simplistic approach to designating
critical habitat by drawing a line around the primary, currently
occupied habitat. NMFS should develop a more discrete approach based on
the actual presence of PCEs.
Response: The critical habitat identified in the proposed rule was
not developed by drawing lines around the Cook Inlet beluga whales'
currently occupied habitat. To the contrary, large portions of the
occupied habitat were not included with the designation because we
concluded that those areas do not contain features essential to the
Cook Inlet beluga whales' conservation which may require special
management considerations or protection. We determined the critical
habitat boundaries by confirming the presence of one or more of the
identified PCEs/essential features within the critical habitat area, as
required by the ESA. We are not required to designate as critical
habitat all areas in which a PCE may occur, only that those critical
habitat areas contain one or more of the PCEs.
Comment 24: The presence of the identified PCEs is not uniform
throughout Cook Inlet, and NMFS should identify those specific areas
that actually contain the important habitat features as critical
habitat, rather than the areas in their entirety.
Response: We included in the designation of critical habitat only
those critical habitat areas that contain one or more of the PCEs. The
distribution of the identified PCEs is not uniform. However, we believe
the ESA provides some latitude to the designating agency here. The
implementing regulations at 50 CFR 424.12 discuss the criteria for
designating critical habitat. Part 424.12(d) states that ``When several
habitats, each satisfying the requirements for designation as critical
habitat, are located in proximity to one another, an inclusive area may
be designated as critical habitat.'' Many of the identified PCEs occur
throughout Cook Inlet and the proposed critical habitat. Other PCEs,
such as shallow areas near median and high flow waters that may be more
discretely distributed, are also so numerous as to be nearly a
continuous feature. It simply would not be practical or effective in
the conservation of the Cook Inlet beluga whale to designate its
critical habitat by circumscribing discrete, individual areas around
the PCEs.
Comment 25: The list of PCEs NMFS has identified implies other
elements are not necessary for the conservation and recovery of Cook
Inlet beluga whales, leaving important gaps that are critical to these
whales. NMFS should include as a PCE waters deeper than 30 feet (9.1m)
in depth, or demonstrate these are not ``essential.''
Response: While we acknowledge beluga whales are distributed
throughout the Inlet, we believe discrete habitat areas exist that are,
in fact, ``critical'' in the sense that they meet the ESA definition
and provide an essential feature (e.g., feeding or calving sites) not
necessarily found throughout the occupied range of this species/DPS.
Further, scientific data, surveys, and TEK provide support for the
identification of such discrete areas, but data are lacking which would
support the inclusion of all waters of Cook Inlet. The addition of a
PCE of waters deeper than 30 feet (9.1m) would likely not result in the
inclusion of any additional areas as critical habitat; rather, it would
merely confirm the designation of the existing areas. Future revisions
to this critical habitat may be made as new scientific data become
available that may alter the list of PCEs or the boundaries of this
critical habitat.
Comment 26: NMFS has not provided sufficient rationale to support
designation of critical habitat in the nearshore area along the west
coast of the lower Inlet nor Kachemak Bay. NMFS should only designate
those areas along the west side of the Inlet and in Kachemak Bay that
actually contain the habitat features important for belugas.
Response: We disagree. The west side of the Inlet and Kachemak Bay
contain one or more of the identified PCEs, and the habitat value and
importance of Area 2, which includes these areas, are described in the
rule. The offshore boundary for Area 2 of 2 nautical miles (3.2km)
reflects the data gathered in Goetz et al. (2007), which found the
majority of whale locations to be within 2.7 km of mudflats and 11.5 km
of medium flow rivers. While the 11.5 km zone around medium flow rivers
would argue for an offset similar to that used in the PCE to describe
nearshore waters proximate to certain anadromous waters (5 miles, or
8km), we felt that a distance of 2 nautical miles (3.7 km) was more
reflective of the actual habitat use based upon the Goetz et al. (2007)
model,
[[Page 20186]]
expertise and observations of NMFS researchers, and the reports and
observations of whales in this area by the Alaska Department of Fish
and Game, National Park Service, and private parties. Please note also
that the 5-mile (8km) distance around these (high and medium flow)
anadromous waters describes the PCE, and not the boundary of the
critical habitat.
Comment 27: There are discrepancies between the depiction and
boundaries of critical habitat within the proposed rule, in that there
are differing definitions of Areas 1 and 2 in different sections. The
map accompanying the rule was not at sufficient resolution to be
useful.
Response: The proposed rule contained several discrepancies in the
coordinates and mapping conventions used to describe the boundaries of
the critical habitat. Corrections have been made within the final rule.
A higher resolution map of this critical habitat will be added to our
regional Web site at http://www.fakr.noaa.gov.
Comment 28: NMFS' statement that ``there remain additional and
unmet management needs owing to the fact that none of these management
regimes is directed at the conservation and recovery needs of Cook
Inlet beluga whales'' is objectionable. There is no evidence that
supports a lack of effectiveness of any of the management regimes in
place in Cook Inlet or that any management or regulatory gap
contributed to the endangered listing of Cook Inlet beluga whales, or
limits its recovery.
Response: The quoted statement does not assert that the lack of
effective management in Cook Inlet contributed to the whale's listing
or limits its recovery. As explained in the proposed rule, the ESA
defines critical habitat as areas on which are found those physical or
biological features essential to the conservation of the species and
which may require special management considerations or protection. For
each essential feature we identified, we determined that it may require
special management considerations or protection. One of the reasons for
this finding is the lack of any existing laws, regulations, or
practices that provide for the management or protection of these
features for the conservation of Cook Inlet beluga whales. It is
therefore foreseeable, if not likely, that through the ESA section 7
consultation process, we will offer recommendations to protect the
essential features, which would otherwise remain without such
protection, in order to ensure the conservation of the beluga whale. We
agree that existing laws and regulations provide some benefit to these
whales and to their conservation. We disagree with the statement that
the endangered status of these whales is unrelated to a lack of
effective management. In fact, we believe much of the decline in this
DPS is attributable to unregulated subsistence harvest practices prior
to regulation and management of these hunts.
Comment 29: Those areas that do not require special management
consideration or protections are not critical habitat and are not to be
designated as such under the ESA. Existing state and Federal
environmental management and regulatory regimes already protect habitat
for beluga whales, justifying a more narrow identification of areas as
critical habitat.
Response: We disagree. The definition of critical habitat (16
U.S.C. 1532(5)(A)) requires that the physical or biological essential
features may require special management considerations or protection,
rather than that the area require such protections. Any area may be
designated as critical habitat provided it contains one or more of
these features, and provided that those features may require special
management or protection.
Comment 30: NMFS unjustifiably disregarded comments made during
proposed rulemaking identifying the many existing refuges, sanctuaries,
state critical habitat areas, legal protections, and mitigative
requirements that provide protection to beluga whales and their
habitat.
Response: We recognize that many conservation and environmental
actions occur through the efforts of the State of Alaska, local
governments, and private concerns. These all contribute to a
conservation ethic, undoubtedly benefit the Cook Inlet region
environment, and can be beneficial to Cook Inlet beluga whales and
their habitat. The ESA provides that, when considering a species for
listing as a threatened or endangered species, consideration be given
to efforts by any State, or any political subdivision of a state, to
protect such species. Generally, a species that would otherwise qualify
for listing may be excluded from listing if there are formalized
conservation efforts that are sufficiently certain to be implemented
and effective so as to have contributed to the elimination or adequate
reduction of one or more threats to the species identified through a
threats analysis conducted pursuant to section 4(a)(1) of the ESA.
However, no such provision exists for the designation of critical
habitat. If such provisions existed, it would still be difficult to
demonstrate they were effective in providing for the conservation of
the Cook Inlet beluga whales, as many of these efforts were in place
during the periods in which these whales experienced significant
declines, leading to the 2008 listing.
The ESA allows for critical habitat not to be designated if such
designation would not benefit the species. Congress intended, however,
that in most situations NMFS will designate critical habitat at the
same time that a species is listed as either endangered or threatened.
It is only in rare circumstances where the specification of critical
habitat concurrently with the listing would not be beneficial to the
species. See H.R. Rep. No. 95-1625 at 17 (1978), reprinted in 1978
U.S.C.C.A.N. 9453, 9467. In this instance, we have determined that the
designation of critical habitat for the Cook Inlet beluga whale would
be beneficial to the species by providing specific protections against
Federal actions that would otherwise destroy or adversely modify that
habitat. We also identify other benefits, as discussed in the following
comment.
Comment 31: Contrary to statements in the Proposed Rule, section 7
consultations are not a benefit accruing from the action, but will only
add additional layers of administrative process without additional
effective protections for beluga whales or their habitat.
Response: As our analysis of economic impacts from the proposed
designation indicates, many, if not most, of the future consultations
on Federal actions pursuant to section 7 of the ESA would otherwise be
required because of section 7's requirement that Federal agencies not
take actions that jeopardize the continued existence of the species
(the jeopardy standard). However, the characterization of this
designation as an additional layer of process ignores the tangible
benefits that will accrue from it.
The designation of critical habitat and identification of essential
physical and biological features will provide procedural and
substantive protections, thereby promoting the conservation of the Cook
Inlet beluga whale. Procedurally, the designation of critical habitat
will focus future consultations on key habitat attributes and avoid
unnecessary attention to other, non-essential habitat features.
Designation of critical habitat will also provide clarity to the
process by alerting Federal agencies to the specific areas and features
that should be considered and addressed during these consultations. The
designation also educates the public as well as State and local
[[Page 20187]]
governments, and affords them the opportunity to participate in the
designation. Substantively, the designation of critical habitat for the
Cook Inlet beluga whale establishes a uniform protection plan prior to
consultation. In the absence of such designation, the determination of
the importance of the whale's environment would be made piecemeal.
Comment 32: Education and outreach are not justifiable benefits
accruing from the proposed designation. In fact, there is concern that
this designation will result in a backlash that will undermine
conservation efforts generally. NMFS should provide the references for
statements regarding the benefits of critical habitat designation as
described in the proposed rule, otherwise the list is speculative and
should be removed from the final rule.
Response: Education and outreach are qualitative benefits of
designation. It is almost certain, however, that the process to date
has greatly added to the knowledge of Cook Inlet beluga whales and
their critical habitat needs within Southcentral Alaska, and probably
extending to much larger geographical and societal divisions. We do not
believe such education and awareness has been or will be destructive or
undermine conservation efforts. Moreover, courts have recognized the
education and outreach benefits accruing from the designation of
critical habitat. See, e.g., Conservation Council for Hawaii v.
Babbitt, 2 F.Supp.2d 1280 (D. Haw. 1998).
Comment 33: One commenter strongly objects to the stated benefit of
reduced levels of pollution in Cook Inlet, with associated benefits
accruing to a suite of ecological services, culminating in an improved
quality of life (in the Cook Inlet region). This statement
mischaracterizes Cook Inlet, whose waters offer pristine habitat for
beluga whales.
Response: We agree that water quality within Cook Inlet is
generally high, and that approximately 98 per cent of the shoreline
remains undeveloped. However, any characterization of these waters as
pristine might be tempered by the facts that the largest communities in
the State exist along its shore, municipal wastes and other effluents
from these communities are often discharged into the receiving waters
of Cook Inlet, numerous fish plants discharge processing wastes into
the Inlet, minor and major fuel spills have occurred here, and offshore
oil platforms regularly discharge drilling muds, cuttings, and produced
waters into the Inlet. We believe it is reasonable to project
improvements in pollution as a benefit of critical habitat designation
even though a portion of such benefits may be realized in the future.
Comment 34: NMFS should adopt minimum escapement goals for eulachon
and salmon. A minimum density of prey is relevant to the intent of
designating critical habitat.
Response: While the importance of these prey species to Cook Inlet
belugas is supported by stomach analysis of stranded and harvested
whales, TEK, fatty acids, and stable isotope analysis, we do not
believe sufficient information exists to determine the energetic
requirements of Cook Inlet belugas or to adopt escapement levels, and
any attempt to do so would be speculative. We anticipate future
research will add to our knowledge of the energetic requirements of
these whales and allow some insight into prey selectivity, caloric
requirements, feeding behavior and speciation, and run strength within
tributary waters that may support a determination of prey requirements.
At this time we have no information to suggest prey availability is or
has been a factor in the decline or is in need of improvement to
promote the recovery of the Cook Inlet beluga whale. We hope to
continue to work with the State of Alaska to ensure these whales are
considered in fish management planning for Cook Inlet.
Comment 35: NMFS should delete the term ``absence of toxins and
other agents'' in its PCE concerning toxins, which implies that a
pristine environment is essential to the conservation of these whales.
NMFS should continue to rely on State and Federal water quality
standards until specific agents are identified to be detrimental to
beluga whales.
Response: We qualify these terms in the definition of the PCE with
the clause ``of a type or amount harmful to beluga whales,'' which we
believe avoids creating the implication described by the commenter. The
commenter correctly points out that the current exposure of these
whales to various pollutants and tissue analysis have not indicated
that Cook Inlet beluga whales carry significant body burdens of many
common contaminants and toxins. But beluga whales are top level
predators with potential to bio-accumulate toxic substances. Further,
the juxtaposition of high densities of Cook Inlet belugas and Alaska's
most populated and industrialized region raises a concern for the
introduction of pollutants into the Inlet. We believe a PCE that
addresses the essential feature of water quality is appropriate here,
and the qualification we added to it will avoid unnecessary
restrictions on most approved discharges. Existing water quality
standards may or may not be protective of marine mammals, including
small whales. Also, many pollutants with the potential to harm these
animals are not currently regulated or addressed under these standards.
Comment 36: The PCE for toxins should reflect concern for the type
and amount of a constituent, rather than for a type or amount. One
commenter suggests re-wording this PCE as ``The absence of non-
naturally-occurring toxins or other agents of a type and amount that
would kill or injure Cook Inlet beluga whales or cause prolonged
abandonment of their critical habitat areas,'' providing the rationale
that these changes would clarify that Federal agencies are not required
to eliminate naturally-occurring harmful substances and replace the
vague standard of harm with the effects-based language from PCE number
5 (in-water noise).
Response: While many compounds and agents may be of a type harmful
to animals, the actual threat or significance of any exposure is also
dependent on their concentrations. We agree with the comment and have
changed the wording of the final rule to reflect this. We disagree with
the suggested changes to the remainder of this PCE because these
qualities or thresholds are more appropriate in defining the condition
of this PCE that equates to adverse modification of the critical
habitat. That is, while the PCE is generally defined as waters free of
harmful substances, adverse modification will occur when an action
results in the addition of substances of a type and amount that causes
mortality or other consequences impeding the conservation of the whale.
Also, some substances occur naturally in the environment (e.g.,
mercury), but are also a concern regarding anthropogenic introduction
into Cook Inlet. Therefore, we chose not to exclude naturally occurring
toxins or other agents, as suggested.
Comment 37: The PCE for in-water noise should be changed to read
``The absence of in-water noise that results in adverse impacts to the
species survival and recovery'' because many noise impacts may
adversely affect the species but not result in abandonment of habitat.
Response: The commenter's proposed language attempts to set the
threshold for this essential feature or PCE at a level defining adverse
modification or destruction of the critical habitat. We disagree with
this approach. A PCE describes an essential feature, such as water
within a certain temperature range. During a section 7 consultation,
[[Page 20188]]
we would consider the effects of an action with regard to this PCE and
evaluate if those changes would appreciably reduce the conservation
value for the species. Defining the PCE to equate to adverse
modification would be circular and by-pass this analytical approach.
Moreover, the definition espoused by the commenter conflates the
standards for jeopardy and adverse modification, a formulation the
Ninth Circuit struck down in Gifford Pinchot Task Force v. U.S. Fish &
Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004). We have modified the
description of this PCE in the final rule to improve clarity.
Comment 38: The PCE for in-water noise should be removed. This
finding is inconsistent with that made in the final rule to designate
critical habitat for the southern resident killer whale (71 FR 69054;
November 29, 2006) which found that noise is an effect to the animal
and not to its habitat.
Response: In our final rule to designate critical habitat for the
southern resident killer whale, we lacked sufficient information to
include noise as a PCE, but noted that we would continue to consider
sound in any future revisions of that critical habitat (71 FR 69054;
November 29, 2006). We consider in-water noise to be both an effect on
these endangered whales and a habitat attribute. It is clear that noise
has the potential to alter behavior in whales in a manner that may have
biological significance (i.e., to result in a ``take'' by harassment or
injury). We find that noise (or its absence) is also an important
characteristic of the habitat within which these whales exist, and is
appropriately identified here as an essential feature. We also agree
with our previous rule for the southern resident killer whale that
current scientific information is not sufficient to quantify the noise
levels that may alter habitat to the extent that whales would abandon
such areas. However, neither the ESA nor regulations require
quantifiable thresholds to be known before any habitat attribute may be
considered an essential feature. Rather, the ESA requires that we
designate critical habitat based on the best scientific data available,
which we have done. Indeed, the regulations (50 CFR 424.12) describe
essential physical and biological features to include generically
``Food, water, air, light, minerals'' without further quantification.
Comment 39: The proposed ``noise'' PCE does not define or explain
what constitutes ``abandonment of habitat'' and ``continuous noise.''
Response: We use these terms with their ordinary meaning in mind
and offer no specialized descriptions for these terms. Our intent is to
avoid having the mere presence of noise, or even noise which might
cause harassment, be deemed adverse modification. While we do not
believe it is ``essential'' that the acoustic environment of these
whales be free of noise, even noise at levels which might harass
whales, we consider it essential for the whales' conservation that they
are not presented with noise that may preclude their use of key habitat
areas, particularly those that are important for feeding, breeding, or
calving.
Continuous or non-impulsive noise is differentiated from impulsive
noises, which are typically transient, brief, broadband, and consist of
a rapid rise time. Impulsive noises may be a single event or
repetitive. Examples of impulsive noises are explosions, sonic booms,
seismic airgun arrays, and impact pile driving. Non-impulsive sources
include vessels, aircraft, and vibratory pile driving.
Comments for Exclusions
We received many comments requesting exclusion from critical
habitat. These requests concerned excluding navigation corridors,
portions of the west and east sides of Cook Inlet, the site of the Knik
Arm bridge, the POA, Port Mackenzie, commercial fishing areas, the City
of Kenai, Kachemak Bay, and State legislatively-created sites (see
below). We prepared an analysis to assess, among other things, the
economic impacts attributable to the designation of critical habitat
for the Cook Inlet beluga whale. We have determined that, based upon
economic impact considerations, there are no proposed critical habitat
areas or sites for which the benefits from excluding the area or site
outweigh the benefits from designating that area or site. As a result,
we have not proposed to exclude any sites on economic grounds. We have
not provided a specific response to each individual request that was
received and considered here, but we have included responses to all
significant issues raised in the comments. We also considered requests
for exclusion based on national security and other relevant impacts,
and as discussed below, we are excluding a small area connected with
the POA from the designation. In light of the impacts to national
security, we determined that the benefits of excluding that small area
outweigh the benefits of including it.
Comment 40: Critical habitat should be reduced to areas where the
beluga whales are most concentrated and should not include areas of
historical use.
Response: Generally, critical habitat includes those areas
necessary to conserve the beluga whale, which broadly means those areas
that will promote its recovery. To determine the boundaries of critical
habitat, we identified the specific areas within the geographical area
occupied by the whale at the time it was listed on which are found
those physical or biological features essential to the conservation of
the whale and which may require special management considerations or
protection. This process resulted in a proposed designation and,
through the notice-and-comment procedure, we refined the critical
habitat designation. Our analysis indicates that the inclusion of areas
only where the whales are most concentrated would be too narrow. The
critical habitat designation does not include areas outside the
geographical area occupied by the species as of 2008 because we do not
believe that any such area is essential for the whale's conservation.
Comment 41: The POA should be excluded from designation in
recognition of it being one of nineteen National Strategic Ports whose
functions include the mobilization and embarkation of military vessels
for quick deployment around the world.
Response: We have considered this request and find that, in light
of the impacts to national security, the benefits of exclusion outweigh
the benefits of designating the POA and a small area adjacent to it as
critical habitat. The POA supports certain military functions and
requirements which cannot be met elsewhere in the State. While air
shipment of goods and materials present some alternatives as far as
supply lines to military interests in Alaska, many other demands cannot
be met without the support of large supply ships calling at this port
facility. The POA also serves as the conduit for all of the jet JP-8
fuel now used at Elmendorf Air Force Base.
We believe that the POA's function in military readiness and role
as a National Strategic Port could be negatively affected by
designation it and surrounding waters as critical habitat. Therefore,
in keeping with the provisions of the ESA, the POA and waters of Knik
Arm in front of the Port (i.e., the navigation channels and turning
basin) are not designated as critical habitat. We have determined this
exclusion will not result in the whale's extinction.
Comment 42: Any exclusion of the POA for reasons of national
security should be strictly limited to military activities, and not
extend to non-military activities.
[[Page 20189]]
Response: Section 4(b)(2) of the ESA provides that the Secretary of
Commerce may exclude ``any area'' from designation as critical habitat
for reasons of national security. We did not find any authority to
limit these exclusions to a particular activity or entity. Also,
certain non-military functions which support the operational readiness
of the port, such as maintenance dredging, could impact military
operations if they were delayed or otherwise impacted by designation.
Comment 43: Port MacKenzie is significant to national security in
providing the ability to efficiently transfer military units,
munitions, and general cargo between land and marine modes, and should
be excluded from designation.
Response: Port MacKenzie is not currently identified as a strategic
port, nor is it adjacent to military lands, accessed by a major road
system, utilized for munitions transfers, or serviced by rail. We
received no supporting recommendations for this exemption from the
Department of Defense (DOD), and did not find reasonable evidence of
the need to exclude Port MacKenzie based on national security
interests.
Comment 44: The Department of Defense (DOD) reminds us that
Congress has mandated that Fort Richardson and Elmendorf Air Force Base
be combined into a single facility by October 2010, and that the
proposed landward boundary of critical habitat (Mean Higher High Water)
would overlay the seaward military boundaries for these lands, which
have been established as Mean High Water. They request clarification on
this boundary issue.
Response: Because the areas between mean higher high water (MHHW)
and mean high water (MHW) are predominately unvegetated mudflats, and
because all lands of Fort Richardson and Elmendorf AFB (now combined,
Joint Base Elmendorf-Richardson) are administered under an Integrated
Natural Resources Management Plan (INRMP) which we found to provide
benefit to Cook Inlet beluga whales, these areas are ineligible for
designation as critical habitat. Modifications have been made within
the final rule to reflect this change.
Comment 45: The commercial and subsistence fisheries for the Native
Village of Tyonek (NVT) should be excluded from critical habitat
designation.
Response: We believe the commenter is requesting exclusion of those
waters which support commercial and subsistence fisheries in and
surrounding the Chuitna River, near the NVT under section 4(b)(2) of
the ESA. We have considered economic impacts, impacts to national
security, and other relevant impacts, including impacts to tribal
interests. We conclude that the benefits of excluding any particular
area do not outweigh the benefits of specifying such area as critical
habitat, except for a small area associated with the POA which we
excluded in light of impacts to national security. We emphasize that
where no Federal authorization, permit, or funding is required (i.e.,
no Federal action exists), the activity is not subject to section 7 of
the ESA. Therefore, there would be no section 7 consultations costs
associated with that activity. Further, we do not believe impacts to
tribal interests indicate that the benefits of excluding the areas that
cover the NVT subsistence and commercial fisheries outweigh the
benefits of specifying these areas as critical habitat. We have not
received comments that indicate tribal interests would be harmed by
this action.
Comment 46: The State of Alaska requests exclusion under section
4(b)(2) of the ESA for all legislatively-designated areas, such as
refuges, sanctuaries, and critical habitat areas.
Response: We have considered this request. The Secretary of
Commerce may use his discretion to exclude areas from critical habitat
if the Secretary determines the benefits of such exclusion outweigh the
benefits of designation of the area, provided the exclusion would not
result in the extinction of the species. The areas in question include
the Goose Bay and Anchorage Coastal Refuges, and the Redoubt Bay,
Kalgin Island, and Kachemak Bay State Critical Habitat Areas. As stated
in an earlier response to comment, we recognize the contribution of
such sites to the conservation of the Cook Inlet region, and the direct
and indirect benefits they provide to Cook Inlet beluga whales and
their habitat. In this case, the State is arguing the benefits we place
on including in the designation these legislatively-designated areas be
reduced by their existing benefit/value owing to their function in
conserving these whales. All of these areas include important
ecological and environmental attributes, especially for fish and
wildlife. Also, several of these sites include important beluga whale
habitats and may have large numbers of beluga whales within their
boundaries at various times of the year. Despite the ecological values
of these areas and the presence of beluga whales and their habitat, we
know of no such State area whose purpose specifically includes the
conservation of beluga whales or their habitat. Moreover, neither the
Cook Inlet beluga whale nor its habitat is included on the State of
Alaska's endangered species list. We believe that the benefits from
designation, described in this final rule, will accrue to the
conservation of the Cook Inlet beluga whale, even in those areas
currently protected for other purposes by the State of Alaska, such as
refuges and sanctuaries.
We also considered the economic impacts associated with the
designation as critical habitat of the State legislatively-designated
areas. Our economic analysis indicates that the majority of those
impacts are associated with the requirement to consult on Federal
actions under section 7 of the ESA. Often times, however, such costs
are minimal, because the consultation would already be required because
the proposed Federal action has the potential to affect beluga whales.
Any Federal action that ``may affect'' an endangered or threatened
species requires consultation, regardless of the existence of critical
habitat. Because land use and management plans exist for these sites,
and many of these areas are remote, there are fewer Federal actions
occurring or proposed here than may be expected outside of these
refuges, sanctuaries, and critical habitat areas. We, therefore, do not
expect the demand for Federal actions in these sites to increase
markedly in the future. Additionally, any costs that may be
attributable to critical habitat designation would be unlikely to be
borne by the State of Alaska, but rather by the Federal action agency
or any private entity proposing work here that requires Federal
authorization, permits, or funding. Also, any ``costs'' such as
increased consultation on actions that may impair the function of
habitat (critical habitat for beluga whales) in these areas may be
viewed as a benefit, rather than a cost, in that it may add to the
values for which these areas were established.
Therefore, after considering the economic impacts and other
relevant impacts described above, we have determined that the benefits
of designation of critical habitat outweigh the benefits of excluding
those areas currently designated by the State of Alaska as refuges,
sanctuaries, and critical habitat areas from this designation.
Comment 47: NMFS can exclude areas to preserve partnerships and
existing protections if the designation risks losing important
protection for beluga whales.
Response: The ESA requires that the designation process take into
consideration the economic impact ``and
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any other relevant impact'' of specifying an area as critical habitat,
but neither the ESA nor the implementing regulations provide clarity on
the provisions for the Secretary of Commerce to exclude from
designation any areas for which the benefits of exclusion outweigh the
benefits from designation. We are not entirely clear as to what is
meant by the comment's reference to critical habitat designation posing
risks to existing protective measures. Nonetheless, we believe that the
designation will result in an increase in protection or conservation
measures.
Comment 48: Electric energy for the Anchorage area is supplied by
undersea cables from a generating plant near Beluga, Alaska. The cable
field and overlying waters should be excluded from critical habitat as
any delays in maintenance or repairs would present significant economic
costs and threat to the reliability of the region's electrical system.
The possible requirement to stop water operations if a whale is sighted
closer than 2,000 feet would have very negative impacts on cable
laying. Similarly, barge operations in support of power generation
could be negatively impacted by this designation, and these barge
landing areas should also be excluded.
Response: After preparing an economic impact analysis and
considering those economic impacts and the ones raised in public
comments on the proposed rule, we have determined that the benefits of
exclusion do not outweigh the benefits of including any particular
area. The economic analysis assesses power generation projects and
general commercial activities in the upper Inlet. Thus, we believe the
findings in the economic analysis are applicable to this comment.
Whenever practicable, the analysis sought to identify the incremental
costs unique to critical habitat designation. The analysis found that
the impacts from a designation decision will often be co-extensive with
the ones from the listing decision. That is, in many instances, costs
arising from the need to consult because of the potential to destroy or
adversely modify critical habitat will be co-extensive with the costs
arising from the need to consult because of the potential to jeopardize
the species.
In the specific example the commenter provides (stopping operations
when a whale was near the work boat), consultation costs would be
entirely attributable to ESA jeopardy considerations stemming from the
listing, not critical habitat designation, because the hypothetical
scenario involves the direct interaction between a whale and the work
activity referenced (i.e., a potential ``take''). This interaction is,
in no way, influenced by the designation of critical habitat. In other
instances, for example, actively laying submarine cable in Cook Inlet,
the incremental cost of evaluating the potential of a proposed action
to ``destroy or adversely modify'' critical habitat during a
consultation would be largely indistinguishable from the costs
attributable to evaluating that activity's potential to jeopardize the
species.
Moreover, the commenter provided no specific information indicating
that this work would even require Federal authorization, permits, or
funding (i.e., Federal action). Absent a Federal action, the critical
habitat designation would not impose section 7 consultation obligations
on the commenter's hypothetical activity. We are aware of no Federal
permit requirements to maintain or repair submarine cable, or to
operate a barge. Based upon the information provided, we did not find a
compelling reason to exclude these areas from critical habitat.
Comment 49: NMFS has not presented sufficient information to
justify the inclusion of the lower Inlet areas as critical habitat.
Hobbs et al. (2005) is cited as describing dive behavior in winter, yet
no such data are reported in that paper. Winter behavior and habitat
use may differ from that of summer months, and NMFS habitat models are
primarily based on observations during June.
Response: The Proposed Rule incorrectly referenced Hobbs et al. in
describing dive behavior; that paper did not include analysis of dive
patterns. That work did, however, establish the distribution of tagged
beluga whales during winter months as including offshore waters of the
mid Inlet which are consistently deeper than those areas typically
occupied by whales during the summer. At this time, we do not have a
complete understanding of the specific attributes that support winter
beluga habitat within Cook Inlet. Because we are required to consider
the best scientific data available in designating critical habitat, we
reviewed non-systematic sighting reports from State and private
sources, aerial surveys of winter beluga distribution, and TEK in
assessing the value of the lower Inlet as critical habitat. Also, we
believe the use of the southwest Inlet during late summer and fall may
be an extension of the feeding behavior (and distribution) which occurs
in the upper Inlet as whales move south to take advantage of late
spawning returns of coho salmon. This habitat use and behavior would
support the use of the results in Goetz et al. (2007) as descriptive of
habitat values in the southwest Inlet. While there is some evidence
that beluga whales may be overwintering in an offshore area south of
Kalgin Island, these areas were not included as critical habitat
because we felt information was not adequate to describe this use or
identify any essential features.
Comments for Inclusion
We received many comments recommending additional areas be included
in the critical habitat designation. These include all of Cook Inlet,
corridors connecting habitat areas, upper and lower Cook Inlet,
historically-used areas, Iniskin Bay, the mouths of tributary streams
entering the Inlet, the Eagle River Flats firing range, the POA, and
Hudson Bay near Churchill, Canada. We have considered all such comments
and respond below to the significant issues they raise.
Comment 50: The critical habitat should include important feeding
areas at the mouths of the Matanuska River, Knik River, and Cottonwood
Creek.
Response: The described boundaries for this critical habitat
generally include areas such as these. While there is often a poorly-
defined division between Cook Inlet and a tributary stream or river,
our proposed river boundaries would extend critical habitat into the
lower reaches of many streams. Tidal influence may extend a
considerable distance up these tributary waters, but represents areas
in which we have very few observations or reports of belugas. We
identified several waters where beluga whales are known or suspected to
utilize such up-river areas for feeding, and specifically extend
critical habitat into these reaches.
Comment 51: Critical habitat must include the habitat of prey
species of beluga whales, such as the Susitna River system and other
waters above tidal influence.
Response: The ESA requires that critical habitat be located within
the geographic area occupied by a species, or within specific areas
outside of occupied habitat determined to be essential to the
conservation of the species. The areas described are outside the
geographic areas occupied by the species at the time of its listing,
and in light of the areas we are designating and the best scientific
data available, we have determined that the unoccupied areas are not
essential to the whale's conservation. We agree that habitat for prey
species such as salmon and eulachon is a necessary component to their
existence in the wild, but we do not have adequate scientific
information
[[Page 20191]]
to identify specific areas that would be essential to the conservation
of these beluga whales with respect to habitat values of prey species.
Comment 52: Critical habitat boundaries should be extended to
incorporate all of the described range of these whales. Both the
nearshore and offshore areas of lower Cook Inlet should be designated
as critical habitat.
Response: We carefully considered designation of these areas as
critical habitat, but we did not find sufficient justification to do
so. These areas have been used by beluga whales in the past, during
periods in which their abundance was much higher than today, and beluga
whales are still observed in these areas. However, both the current and
historical accounts of beluga whales in these areas do not indicate
they supported important numbers/concentrations of whales, or that they
served important habitat functions. Existing habitat models describe
open water values that are likely very important attributes to feeding
and, perhaps, calving habitat needs and preference. Such modeling does
not indicate high habitat values are present in the areas in the lower
Inlet that are not included in the designation. We acknowledge more
information is needed to understand the winter habitat needs of the
Cook Inlet belugas, and that other areas may be found to be important
as new data arrive. But presently, we do not find sufficient support
for inclusion of these areas.
Comments To Extend Public Comment
Comment 53: NMFS received several comments and requests to extend
or re-open the comment period for this action, or to conduct additional
hearings in the State.
Response: On consideration, we believe the public process, which
has included the publication of an Advance Notice of Proposed
Rulemaking with a 30-day public comment period (74 FR 17131; April 14,
2009), publication of a proposed rule with 60-day public comment period
(74 FR 63080; December 2, 2009), a 30-day extension of the comment
period for the proposed rule, and four public hearings held in the
major population centers in the Cook Inlet region (Kenai, Soldotna,
Wasilla, and Anchorage), was sufficient and proper. Therefore, we have
determined not to extend or re-open the comment period, or to hold
additional hearings for this final rulemaking.
Comments on the Need To Designate Critical Habitat
Comment 54: Designation of critical habitat was unnecessary, and
will not add any meaningful protection to these whales. The regulations
at 50 CFR 424.12 provide that critical habitat may not be prudent, and
therefore would not be designated, when that designation would not be
beneficial to the species. The consultation provisions of the ESA
provide reasonable protection to these whales under the jeopardy
standard. NMFS has used circular logic in saying the benefit of
designating critical habitat is that it will require (Federal agencies)
to ensure their actions do not destroy or adversely modify critical
habitat. The remaining functional benefit of public education and
outreach would be more effectively met through a dedicated public
education program rather than the less direct means of designating
critical habitat.
Response: We disagree. The ESA provides that critical habitat shall
be designated ``to the maximum extent prudent and determinable.'' 16
U.S.C. 1533(a)(3)(A). The ESA does not define ``prudent.'' NMFS/USFWS
regulations, however, provide that a designation of critical habitat is
not prudent when the ``designation of critical habitat would not be
beneficial to the species.'' 50 CFR 424.12(a)(1)(ii). This means that
in the rare situation where there is zero benefit from designation, we
need not designate. If there is any benefit, we must designate.
Congress intended that in most situations the Secretary will designate
critical habitat at the same time that a species is listed as either
endangered or threatened. It is only in rare circumstances where the
specification of critical habitat concurrently with the listing would
not be beneficial to the species. See H.R.Rep. No. 95-1625 at 17
(1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9467. See also Enos v.
Marsh, 769 F.2d 1363, 1371 (9th Cir.1985) (holding that the Secretary
``may only fail to designate a critical habitat under rare
circumstances''); Northern Spotted Owl v. Lujan, 758 F.Supp. 621, 626
(W.D.Wash.1991) (``This legislative history leaves little room for
doubt regarding the intent of Congress: The designation of critical
habitat is to coincide with the final listing decision absent
extraordinary circumstances.'').
In short, if there will be any benefit from the designation, we
must designate. Even if many consultations will occur because of the
combined potentialities that proposed Federal actions will adversely
modify critical habitat and jeopardize the species, if some will occur
only because of the potential for adverse modification, there still is
benefit to the species (see response to comment 54). Further, courts
have recognized benefits beyond the need to consult. See Conservation
Council for Haw. v. Babbitt, 2 F.Supp.2d 1280, 1288 (D. Haw. 1998)
(substantively, the designation establishes a uniform protection plan
prior to consultation, and procedurally, the designation educates the
public as well as state and local governments, and affords them the
opportunity to participate in the designation). We do not believe this
situation is the rare one allowing us to avoid the ESA's strong mandate
to designate critical habitat.
As for the arguments that the Marine Mammal Protection Act (MMPA)
protection is enough, critical habitat must be designated regardless of
whether other laws or provisions arguably provide adequate protection.
See Natural Resources Defense Council v. U.S. Dep't of the Interior,
113 F.3d 1121, 1127 (9th Cir. 1991) (``Neither the Act nor the
implementing regulations sanctions nondesignation of habitat when
designation would be merely less beneficial to the species than another
type of protection''). Lastly, while the term ``take'' includes harm,
and USFWS' definition of harm includes habitat modification, it applies
only when such modification ``actually kills or injures'' the species
(50 CFR 17.3). Under section 7 of the ESA, we may find that an action
will adversely modify critical habitat and propose reasonable and
prudent alternatives without having to also make the higher evidentiary
determination that the adverse modification will kill or directly
injure the species.
Legal and Regulatory Comments
Comment 55: Existing State and Federal regulation and associated
mitigation measures are adequate to protect Cook Inlet beluga whales
and the critical habitat designation is not necessary. One commenter
also asserts that NMFS has disregarded the information it submitted
concerning existing laws and regulations that protect Cook Inlet beluga
whales and their habitat. One commenter also asserts that there is no
evidence that a lack of effectiveness of any of the management regimes
in place in Cook Inlet or that any management or regulatory gap
contributed to the endangered listing of Cook Inlet beluga whales or
limits its recovery.
Response: The ESA defines critical habitat, in part, as ``the
specific areas * * * 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.'' 16
U.S.C. 1532(5)(A)(i). The phrase ``may require'' indicates that
critical habitat includes features that
[[Page 20192]]
may now, or at some point in the future, be in need of special
management considerations or protection.
As explained in the proposed rule, we determined that each PCE may
require special management considerations or protection. The commenter
is correct that certain laws and regulatory regimes already protect, to
different degrees and for various purposes, the waters of Cook Inlet
and, therefore, to a certain extent, the physical or biological
features identified as essential to the conservation of the species.
The fact that there are relevant state and Federal regulations which
aim to protect these waters and features from a variety of sources and
actions indicates that each feature currently is in need of special
management considerations or protection. The existing laws and
regulations do not, however, ensure that current and proposed actions
will not adversely modify or destroy beluga whale critical habitat in
Cook Inlet. It is therefore probable, if not likely, that the PCEs
essential to the conservation of the Cook Inlet beluga whale will
require special management considerations or protection in the future.
The consultation process is one mechanism through which we can ensure
that those features are afforded such consideration or protection.
With regard to the comment that we disregarded information
submitted on existing laws and regulations, we disagree with the
commenter because we have considered this information in the proposed
rule and in this final rule. Finally, with regard to the comment about
whether the lack of effectiveness of any of the current management
regimes contributed to the endangered listing, the designation of
critical habitat for any listed species does not necessarily indicate
that existing laws are responsible for the species' decline. Similarly,
the fact that there are existing laws that protect different aspects of
a listed species' critical habitat does not, per se, preclude the
designation of critical habitat. The inquiry is whether there are
physical or biological features that are essential to the conservation
of the species and which may require special management considerations
or protection. Congress envisioned that, except in extraordinary
circumstances, the Secretary would designate critical habitat. There
are no extraordinary circumstances that would allow us to avoid the
designation of critical habitat for the Cook Inlet beluga whale.
Comment 56: The critical habitat designation should not be
finalized until pending legal rulings on the status of the Cook Inlet
beluga whales are made.
Response: We disagree. The ESA requires us to designate critical
habitat concurrently with the listing decision to the maximum extent
prudent and determinable (16 U.S.C. 1533(a)(3)(A)(i)). If such
designation is not determinable, we may extend the deadline by one
year. In the extraordinary situation where the designation of critical
habitat is not prudent, we may decide not to do so. See response to
comment 54 above. Section 424.12(a)(1) of 50 CFR presents two
circumstances when a designation is not prudent, but neither one is
applicable here. Accordingly, whichever ``pending legal rulings on the
status of Cook Inlet beluga whales'' the commenter is referring to,
they do not constitute cognizable grounds under the ESA for delaying
the designation of critical habitat. If the State of Alaska prevails in
its lawsuit challenging our decision to list the Cook Inlet beluga
whale, we will determine at that time what effect such a ruling has on
this final rule.
Comment 57: Because NMFS has not yet complied with all of the
applicable directives, such as the National Environmental Policy Act,
Executive Order 13211, and Public Law 108-199, the proposed rule is
unlawful.
Response: We disagree. We have complied with Executive Orders 13211
and 13175, as modified by Public Law 108-199 (74 FR 63,080, 63,093-94;
Dec. 2, 2009). NEPA does not apply to decisions to designate critical
habitat. See Douglas County v. Babbitt, 48 F.3d 1495, 1501-08 (9th Cir.
1995).
Comment 58: NMFS must provide justification for the designation of
critical habitat inconsistent with comments provided to it by the State
of Alaska and its political sub-divisions.
Response: Section 4(i) of the ESA provides that if the Secretary
issues a final regulation which is in conflict with the comments of a
State agency, the Secretary must provide a written justification for
his failure to adopt regulations consistent with the agency's comments.
We have complied with this section by submitting a letter to the Alaska
Department of Fish & Game and the Governor's Office.
Comment 59: There is a direct Federal nexus with the critical
habitat designation through the Magnuson-Stevens Act to anadromous
species. These anadromous species include hooligan, smelt, and salmon.
Response: We are uncertain as to what this commenter means by
``direct Federal nexus with the critical habitat designation.'' To the
extent that this commenter is referring to potential ESA section 7
consultations, we note that section 7 of the ESA requires each Federal
agency, in consultation with NMFS, to ensure that ``any action
authorized, funded, or carried out'' by the agency is not likely to
jeopardize the continued existence of any listed species or result in
the destruction or adverse modification of the species' habitat (16
U.S.C. 1536(a)(2)). Our regulations provide that action ``means all
activities or programs of any kind authorized, funded, or carried out,
in whole or in part, by Federal agencies in the United States or upon
the high seas'' (50 CFR 402.02). Accordingly, if or when there is a
Federal action that may affect a listed species or its habitat, the
Federal action agency must consult with NMFS. At this time, we are
unaware of any proposed Federal actions pertaining generally to
hooligan, smelt, or salmon that would require consultation.
Economic Comment
Comment 60: Many comments suggest that the Draft RIR/4(b)(2)PA/IRFA
did not consider changes to development projects stemming from the
critical habitat designation, such as added costs and operational and
permitting delays to projects resulting from the ESA section 7
consultation process, and the attendant economic consequences. Some
comments, such as those by Chugach Electric Association and
ConocoPhillips, also estimated the costs associated with these
modifications and delays. According to these comments, in addition to
the ESA process, project delays could also be caused by environmental
lawsuits, once the critical habitat is designated.
Response: The Cook Inlet beluga whale was listed as endangered in
October 2008. Since the listing, all Federal agencies have had the
obligation to consult with NMFS to ensure that any action authorized,
funded, or carried out by them (i.e., Federal action) is not likely to
jeopardize the continued existence of the species. Consultations in
accordance with this obligation must be conducted in the future,
regardless of whether critical habitat is designated. The statute
contains timelines for section 7 consultations, and Federal agencies
should plan their activities accordingly to avoid delay. Non-Federal
entities that require Federal permits for development projects should
also be aware of the consultation requirement, and factor the time
needed for consultations into their plans and schedules. As
consultations are already required under the jeopardy standard, the
additional consultation standard of destruction or adverse modification
of critical habitat is not anticipated to result in significant,
additional project
[[Page 20193]]
delays. With respect to project modifications, there presently is no
detailed empirical information (e.g., engineering, materials, and
structural design; project scheduling, temporal sequencing of
construction, and duration; associated costs and financing) pertaining
to future projects or any project modifications that might be proposed
for areas within or immediately adjacent to Cook Inlet beluga whale
critical habitat, making quantitative estimation of directly
attributable economic costs purely speculative. In other words, since
the precise nature of any future project modification is unknown, we
cannot speculate whether such a potential modification ultimately
increases or decreases project costs and by how much. Qualitatively,
based on past experience and the best scientific and commercial data
available, we do not expect project modifications to add significant
monetary costs, especially since most of these modifications would
likely be required pursuant to consultations arising under the jeopardy
standard.
Finally, whether any project is delayed because of a lawsuit will
depend on whether a court determines that NMFS has violated Federal law
and injunctive relief is appropriate. Costs associated with project
delays due to such lawsuits are extremely speculative.
Comment 61: A comment by ConocoPhillips asserts that a critical
habitat designation will result in increased administrative costs to
the company, and has the potential to result in operational and
permitting delays and/or lead to other new costs. The independent
economic analysis conducted by the company conservatively estimates the
impacts to ConocoPhillips alone in the range of $698,000 to $796,000
over 20 years. According to the company, these costs could rapidly
escalate, if NMFS imposed even minor restrictions on ConocoPhillips'
operations in connection with the critical habitat designation.
Response: See response to comment 60.
Comment 62: Some comments request the exclusion of the POA and Port
Mackenzie from the final critical habitat designation, based on
national security, as well as economic reasons.
Response: After considering impacts to national security and
weighing the benefits of exclusion with those of specifying as critical
habitat the POA and a small, adjacent area extending to the turning
basin, we have determined to exclude those areas from the critical
habitat designation. The exclusion does not, however, include Port
Mackenzie. We have determined that its inclusion as critical habitat
does not implicate significant impacts to national security, supported
by the fact that DOD has not asserted that there would be any. After
considering the economic impacts of the designation, we determined that
the benefits of excluding Port Mackenzie do not outweigh the benefits
of specifying the area as critical habitat. The decision to exclude the
POA is based principally on impacts to national security, which have
been described in this rule and were identified in comments responding
directly to our public notice requesting information on this issue. See
detailed discussion below.
Comment 63: A number of comments assert that, contrary to some
perspectives in Alaska, the critical habitat designation will not
hamper responsible development. Based on tens of thousands of reviews
across the nation on development projects in areas containing
endangered species, less than one percent of projects are significantly
curtailed, because responsible development and endangered species
protection can and do go hand in hand. The vast majority of projects
entering the consultation process are resolved informally with a
determination that no listed species will be impacted, nor designated
critical habitat destroyed or adversely modified. Even where a formal
consultation is required in instances of an identified potential
threat, the agencies more often than not conclude that no such threat
exists, or work with the action agency to design project alternatives.
Only in extremely rare instances are projects terminated because of
probable impacts on listed species.
The comments further state that critical habitat designation does
not affect private activities that do not require Federal permits. Nor
is it undertaken in a vacuum: Federal agencies are already required to
consult under section 7 of the ESA if their action could jeopardize the
continued existence of an endangered or threatened species. Critical
habitat designation simply adds another question for the agency to
consider as part of the consultation: Whether the Federal agency action
could result in the destruction or adverse modification of critical
habitat. Any incremental cost of critical habitat designation is,
therefore, small and limited.
Response: We agree with the commenters. The economic analysis
conducted in support of the Final RIR/4(b)(2)PA/FRFA is based on the
same premise as that outlined in these comments.
Comment 64: A number of comments demand a more robust economic
analysis before the critical habitat designation is finalized. Further,
these comments expressed concern with the methodology used to estimate
the cost of the proposed designation. According to these comments, the
current analysis is inadequate and a more comprehensive economic
analysis needs to be conducted.
Response: The economic analysis conducted in support of the Final
RIR/4(b)(2)PA/FRFA employed the appropriate methods and used the best
scientific data available to consider all relevant economic impacts and
develop cost and benefit estimates. As required under the ESA,
Regulatory Flexibility Act, Executive Order 12866, and other applicable
law, the analysis considered all costs and all benefits relevant to
assessing the net welfare changes attributable to the final action.
These changes were monetized to the fullest extent useful estimates
could be made or treated qualitatively when monetization was not
practicable. These component welfare effects were then integrated in
order to reach conclusions about the expected ``net benefit to the
Nation'' attributable to the final critical habitat designation. While
the commenters demand a more robust economic analysis, they do not
provide any new or additional data. A few comments mention certain
``costs'' that are asserted to be incremental to the critical habitat
designation. However, many of the values identified within these
comments are not ``economic costs,'' but instead, ``impact'' measures
(e.g., input-output multipliers) that reflect, for example, localized
commercial activity. As such, they do not represent economic benefits
or economic costs, as these concepts are employed in traditional
``benefit/cost'' analysis. Commercial activity impacts, while important
distributional indicators, are ``transfers'' within a National
Accounting analytical framework mandated under applicable Federal law.
Distributional impacts are treated separately from economic costs and
benefits in the analytical documents. Those economic costs that are
correctly identified in these comments would, based upon NMFS' economic
analysis, likely be incurred regardless of whether critical habitat is
designated (also see response to earlier comments). Furthermore, there
are fundamental and important distinctions between economic ``benefits
and costs'' and economic ``impacts.'' The former are crucial in
evaluating ``net welfare'' changes; that is, do the benefits exceed
[[Page 20194]]
the costs, resulting in a net gain to society. Impact measures (e.g.,
income and employment multipliers) reflect relative economic
``activity'' in a specified locale, relative to a baseline condition.
The commenters have confused these crucial economic concepts. With,
for example, specific reference to comments on the FRFA, the purported
``costs'' identified there are not relevant to the traditional cost-
benefit analysis. And, with respect to the ESA, we considered the
economic impacts cited in these comments, but do not believe that they
change the conclusion that the benefits of exclusion (principally
monetary) do not outweigh the benefits (economic, ecological,
educational, biological) of specifying the areas as critical habitat.
Comment 65: A few comments point out that the proposed critical
habitat area overlaps geographically with Alaska's highest human
population density and its primary economic base. Yet, the economic
analysis conducted in support of the Draft RIR/4(b)(2)PA/IRFA cites the
added costs for evaluating future projects in the proposed critical
habitat at a mere $187,000 to $571,000.
Response: Some commenters have expressed concern about the
designation of critical habitat in areas of high population density and
human activities. The concerns are related to the perceived potential
economic costs that may be imposed by critical habitat designation. The
Final RIR/4(b)(2)PA/FRFA concludes that the economic cost of critical
habitat designation that can be reasonably ``monetized,'' at present,
is estimated to have a discounted net present value of approximately
$187,000 to $571,000, assuming a 3 percent real discount rate and 10-
year planning horizon; and about $157,000 to $472,000, using a 7
percent real discount rate and 10-year period. ``Applicants''
associated with section 7 consultations on the various activities that
could be potentially impacted are only expected to bear $900 to $3,500
per consultation in administrative costs related to the incremental
costs of critical habitat designation for formal consultations, while
they are not responsible for any incremental costs related to informal
consultation. It is important to recall that section 7(a)(2) of the ESA
applies only to Federal actions (i.e., actions authorized, funded, or
carried out by a Federal agency). Absent such Federal action,
activities undertaken in or adjacent to Cook Inlet are not subject to
the provisions of section 7 consultation on critical habitat and will
incur no attributable or quantifiable costs or other encumbrances due
to the designation of critical habitat. Even for proposed Federal
actions, ``applicants'' associated with consultations on activities
such as oil and gas exploration and development, power projects,
mining, water quality, port expansion and development, transportation
and other infrastructure projects are not expected to bear any
significant costs uniquely attributable (i.e., incremental) to the
designation of critical habitat for the Cook Inlet beluga whale. Every
Federal agency must consult under section 7 of the ESA to ensure that
its action will not jeopardize the continued existence of the whale.
Formal consultation is required if the proposed action ``may affect''
the whale (50 CFR 402.14(a)). Whether the consultation may proceed
informally, as opposed to formal consultation, will depend on whether
the action is likely to adversely affect the species (50 CFR
402.14(b)).
Comment 66: Some commenters point out that the period employed for
the analysis, 2009 to 2018, may be insufficient, particularly when
dealing with significant resource and community infrastructure
operations and development. Firms in these industrial sectors must
balance disparate time horizons for capital life, field life, field
extension, and field depletion rates that are rarely as short as 10
years.
Response: As mentioned in Section 3.4 of the Final RIR/4(b)(2)PA/
FRFA, an interval of 10 years is widely employed in the policy analysis
arena. This time-frame allows sufficient scope over which longer-cycle
trends may be observed (e.g., progress towards population recovery for
the Cook Inlet beluga whale), yet is short enough to allow
``reasonable'' projections of changes in use patterns in an area, as
well as shifts in exogenous factors (e.g., world supply and demand for
petroleum, U.S. inflation rate trends) that may be influential.
Comment 67: An independent study commissioned by the Resource
Development Council (RDC) asserts that the Cook Inlet beluga whale
critical habitat designation has the potential to result in economic
impacts on RDC's members ranging from $39.9 million and $399 million,
annually. Over a 10-year period (the length of time utilized by the
Draft RIR/4(b)(2)PA/IRFA) the present value of that lost production at
a three percent discount rate is claimed to be $340.3 million to $3.4
billion, and at a seven percent discount rate is $280.2 million to $2.8
billion. These numbers are asserted to be conservative and do not take
into account, for example, the $400 million-$600 million that the
Anchorage Water and Wastewater Utility (AWWU) may be required to spend
to upgrade its facilities. According to RDC, even the most conservative
estimate of $280.2 million over 10 years, representing an impact of
only a one percent reduction in Cook Inlet region output, is
sufficiently significant to warrant broad exclusions.
Response: The independent study commissioned by RDC considers
potential ``impacts'' of the proposed critical habitat designation to
five key industries: oil and gas, mining, POA, commercial fishing, and
sport fishing. Further, qualitative discussions of impacts on other
projects/sectors/entities are also provided, though not quantified.
These include tourism, Knik Arm Bridge and Toll Authority, community
development projects, Anchorage Water and Wastewater Authority (AWWU)
discharges, Port McKenzie, vessel traffic, and energy infrastructure.
We reviewed and considered this report. While the RDC's Economic
Analysis states that it ``monetizes, quantifies, or qualitatively
assesses the incremental costs and benefits to entities directly
attributable to the CHD,'' it is unclear if the analysis excludes the
conservation measures already underway or which may be taken due to the
listing of the Cook Inlet beluga whale. Economic impacts from these
measures are not attributable to the designation of critical habitat.
Further, given the time periods when most of the six studies relied
upon in the RDC Economic Analysis for identifying the range of
reductions were conducted, the impacts identified are likely co-
extensive, not incremental. Therefore, the RDC Economic Analysis
appears to significantly over-estimate the economic costs that are
attributable to the designation of critical habitat.
In terms of specific study outcomes, the impacts to mining in the
RDC Economic Analysis are based on the premise that both the Chuitna
Coal Project and the Pebble Project will likely be completed. While
this may be true for the Chuitna Coal Project, the Pebble Mine project
is in the planning/pre-permitting/pre-development stage, and does not
have an approved project description. At this time, there is reasonable
uncertainty regarding the likelihood of this project (Pebble Project)
occurring at all, let alone within the next 10 years. Also, many AWWU
facilities may be required to upgrade for Clean Water Act (CWA)
compliance, regardless of the designation of critical habitat for the
Cook Inlet beluga whale. These costs, if incurred, are not
[[Page 20195]]
attributable to the critical habitat designation.
As noted in response to a previous comment, the misunderstanding
and resulting confounding of fundamental concepts of ``economic costs
and benefits'' with ``measures of economic activity'' (e.g., employment
multipliers) has led the commenters to derive vastly inflated
projections of the attributable ``economic costs'' of critical habitat
designation. Input/output multipliers do not reflect, and are not
equivalent to, economic costs or economic benefits. They are correctly
interpreted as location-specific ``activity measures'' reflecting the
rate of turnover and the path of exchange, for example, of a dollar
created within the identified economic unit (e.g., county, region,
state), before it leaks out into the wider economy. Emphasizing that
such relative economic activity impacts are not relevant to the
assessment of ``net benefits to the Nation,'' we did describe and
evaluate the temporal and geographical impacts that may accrue to
localized economic activity, to the extent practicable.
Comment 68: One commenter has provided suggestions to improve the
presentation of results in the Draft RIR/4(b)(2)PA/IRFA as follows:
Regarding the analysis of costs, the overriding conclusion from the
[economic] analysis is that impacts on the private sector will be
minimal. This point should be highlighted and the public sector costs
should be clarified. In particular, Table 7.1 outlining the total costs
(all based on ``consultation'' costs) is misleading. The numbers
indicated are for a 10-year period total and that should be represented
in the table itself.
Footnote 374 is crucial to the analysis and yet unfortunately is
buried. It should be part of the main text. The only discount rate is 3
percent as the ``social discount rate,'' because this is a public/
social policy choice. This is accepted practice in the economics
profession. If total costs are averaged over the 10-year period, they
only come out to between $18,700 to $57,000 per year.
In Section 7 of the Draft RIR/4(b)(2)PA/IRFA, there is no statement
of the methods used to calculate costs. Once more, these are national
averages only.
Response: We appreciate the suggested improvements, and considered
them when we completed the Final RIR/4(b)(2)PA/FRFA.
Comment 69: A handful of comments assert that lost development
opportunities resulting from the critical habitat designation will
result in declines in both State and local tax revenue, and reduce the
number of jobs. An example cited is that of Alaska's already struggling
oil and gas operations, where hundreds of oil field workers and
professionals have been laid off in recent months. The comment asserts
that critical habitat designation will have a further crippling effect
on such industries.
Response: As stated in more detail in response to an earlier
comment and in the Final RIR/4(b)(2)PA/FRFA, the designation of
critical habitat is not anticipated to hamper development in the
vicinity of Cook Inlet, and thus would not result in declines in State
and local tax revenues nor lost jobs. The additional costs incurred by
industry that can be reasonably monetized at present and are uniquely
attributable to the critical habitat designation, would be the
negligible third party costs of section 7 consultations (i.e., $900 to
$3,500 per consultation in administrative costs related to the
incremental costs of critical habitat designation for formal
consultations; no costs to industry are incurred for informal
consultations). The project modifications and associated costs that may
be requested, expressly due to consultation over potential destruction
or adverse modification of critical habitat, are anticipated to be
minimal and rare, given that most of any such modifications would
already be required under ESA section 7's jeopardy standard. Moreover,
the nature of any such modification is speculative and, as a result,
whether the modification ultimately increases or decreases project
costs (and, by how much) cannot be determined at this time.
Comment 70: Comments by the Chugach Electric Association, Inc. and
the Resource Development Council of Alaska, Inc. point out that the
Draft RIR/4(b)(2)PA/IRFA does not mention the existing high voltage
submarine cable fields that cross Knik Arm, connecting the Anchorage
area, as well as the Kenai Peninsula, to Chugach's existing generation
plant near the Beluga gas fields. These cables must be maintained and
occasionally replaced. Chugach spelled out for NMFS the potential
economic impact of any delays in maintaining and repairing those
cables, explaining that these delay-related costs are in addition to
any administrative costs associated with ESA consultation, and any
increased costs incurred by Chugach in altering its projects to benefit
the whales.
Response: As discussed in more detail in response to previous
comments regarding exclusion of cable fields and overlaying waters from
the critical habitat designation, we are not aware of any Federal
actions in connection with the maintenance or repair of submarine
cables, and the commenters have not indicated the existence of such
Federal action. Therefore, absent Federal action, the proposed critical
habitat designation would impose no compliance requirements (e.g., no
delays, direct or indirect costs) on maintaining, repairing, or
occasionally replacing submarine cables in Cook Inlet.
Comment 71: One comment states that while the Draft RIR/4(b)(2)PA/
IRFA analyzed cost impacts of critical habitat designation for two
other tidal energy projects, it should be revised to include the
potential costs of critical habitat designation to the Turnagain Arm
Tidal Energy Generation project, as well. The Turnagain Arm Tidal
Energy Corporation filed an application with the Federal Energy
Regulatory Commission (FERC) on November 17, 2009, for a preliminary
permit to study the feasibility of a tidal energy generation system on
the Turnagain Arm of Cook Inlet.
Response: The Final RIR/4(b)(2)PA/FRFA analyzed economic impacts of
critical habitat designation on projects that are reasonably likely to
occur during the 10-year period of analysis. In November 2009, the
Turnagain Arm Tidal Energy Corporation filed for a preliminary permit
pursuant to section 4(f) of the Federal Power Act, proposing to study
the feasibility of the Turnagain Arm Tidal Energy Generation project.
According to the December 4, 2009, Federal Register document, ``the
sole purpose of a preliminary permit, if issued, is to grant the permit
holder priority to file a license application during the permit term. A
preliminary permit does not authorize the permit holder to perform any
land disturbing activities or otherwise enter upon lands or water owned
by others without the owners' express permission.'' Therefore, while it
appears from the proposed project description that the project, if
approved, may affect the whale's critical habitat, the project is still
sufficiently ill-defined, presumably undergoing design and feasibility
assessments, that further progress towards development and submission
of the next series of applications remain in pre-permitting stages.
Absent more definitive design, siting, and construction information, it
would be impossible to do more than offer uninformed speculation on the
interaction, if any, between this potential development and designated
critical habitat and whether the project may also affect the whale,
requiring a consultation under section 7 due to the listing of the
whale as an endangered
[[Page 20196]]
species. As such, it is not considered among the impacts contained in
the Final RIR/4(b)(2)PA/FRFA's analysis.
Comment 72: One comment states that Section 7.7 of the Draft RIR/
4(b)(2)PA/IRFA did not analyze the Mt. Spur Geothermal Power Plant
because a decision to go forward with the plant has not been made.
Further, Table 6-28 of the Draft RIR/4(b)(2)PA/IRFA describes the
status of the project as ``pre-decisional, geothermal lease in place,
no permits have been requested.'' The comment further states that given
Ormat Technologies' (the major lease holder for the Mt. Spur Geothermal
development) better record of success than any of the tidal energy
companies whose projects were analyzed in the Draft RIR/4(b)(2)PA/IRFA,
Section 7.7 should be revised to include the potential costs of
critical habitat designation to the project.
Response: As per Sections 6.4.7 and 7.7 of the Final RIR/4(b)(2)PA/
FRFA, based on the best scientific data available and research
conducted by NMFS, Ormat Technologies is in the early development/
initial exploration stage of the Mt. Spurr Geothermal Power Plant, and
no permits have been requested. Additionally, given that no specific
preferred plan or route for the transmission line(s) have been
identified, it is unclear whether this potential project may affect the
Cook Inlet beluga whale and/or its critical habitat. In light of the
fact that Ormat Technologies will have to submit a site design and
transmission line corridor proposal, apply for and get the necessary
permits, and secure funding to develop this project, any analysis of
economic impacts to the potential project arising exclusively from the
designation of critical habitat would be highly speculative.
Comment 73: A commenter notes that Section 6.4.7 of the Draft RIR/
4(b)(2)PA/IRFA states that the Chakachamna Hydropower Plant project was
reviewed, but determined to not have a connection with the critical
habitat designation, due to its inland location and lack of physical
connection with Cook Inlet. However, the project description clearly
describes the project's planned measures to protect salmon, which are
designated as a PCE of the critical habitat. The project would
discharge water flow from the facility into the MacArthur River near
its confluence with Cook Inlet. The power transmission lines may need
to cross the MacArthur River, and potentially Cook Inlet, to reach
Anchorage or the Kenai Peninsula. Chakachamna Power has identified the
North Forelands Dock and Industrial Area as its logistics base for
construction and operation of this project, which would result in an
increase in vessel traffic through this area. A preliminary permit
application for this project was filed with FERC on December 10, 2009.
Because this project may affect a small portion of Cook Inlet beluga
whales' habitat, but is highly unlikely to jeopardize the existence of
the whales, project modification costs should be estimated. Section 7.7
of the Draft RIR/4(b)(2)PA/IRFA should be revised to include the
potential costs of critical habitat designation to the Chakachamna
Hydropower Plant project.
Response: Based on the project description provided in the
preliminary permit application for this project, filed with the Federal
Energy Regulatory Commission (FERC) on December 10, 2009, the
Chakachamna Hydropower Plant project is located inland of Cook Inlet,
including the proposed transmission lines that would connect to the
Chugach Electric Association's Beluga substation, which is also inland
of Cook Inlet. The commenter has not provided any supporting
information or empirical documentation to indicate a clear physical
connection of the project with the waters of Cook Inlet, the beluga
whale, or its critical habitat. If, as the commenter asserts, the North
Forelands Dock and Industrial Area is proposed as the construction
staging site and permit authorizations are sought for that activity, a
section 7 consultation may be required. Given currently available
information, however, no conclusive determination can be made; thus,
the potential economic impact to the potential Chakachamna Hydropower
Plant project is not analyzed in the Final RIR/4(b)(2)PAFIRFA.
Comment 74: One comment by Chugach Electric Association notes that
the Draft RIR/4(b)(2)PA/IRFA acknowledges NMFS' obligation under
Executive Order 13211, regarding ``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use,'' to evaluate
the impact of critical habitat designation on energy supply. However,
the Draft RIR/4(b)(2)PA/IRFA appears to be devoid of any such analysis.
Response: Section 10.2 of the Final RIR/4(b)(2)PA/FRFA presents the
``Statement of Energy Effects'' pursuant to Executive Order No. 13211,
``Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use,'' issued May 18, 2001.
Comment 75: Two comments state that the proposed designation of
critical habitat to protect beluga whales in the Cook Inlet does not
describe the economic impacts of the designation on the North Slope to
Lower 48 through Canada gas pipeline project (also referred to as
Alaska natural gas transportation project), nor how impacts of the
designation on the economic, environmental, energy, and national
security interests of the nation, relative to this project, which
Congress has endorsed, were taken into consideration and balanced in
accordance with Section 4 of the ESA.
Response: Research conducted by NMFS through the development of the
Final RIR/4(b)(2)PA/FRFA revealed that the proposed North Slope to
Lower 48 through Canada gas pipeline project, if permitted, would not
affect the Cook Inlet beluga whales' critical habitat. No new
information or empirical documentation has been provided by the
commenter with which to evaluate how the project would impact the
critical habitat or vice versa.
Comment 76: A commenter notes that the Draft RIR/4(b)(2)PA/IRFA
should analyze the Alaska Natural Gas Development Authority (ANGDA)
spur pipeline to Cook Inlet. ANGDA is planning a $2 billion pipeline to
divert a portion of the gas from the North Slope to Lower 48 through
Canada pipeline project to Cook Inlet, to replace dwindling local
reserves and provide processed natural gas liquids for export from a
to-be-developed facility, through Cook Inlet. This pipeline would run
from Delta, through Glennallen, to the Beluga gas facility near
Wasilla.
Response: Section 6.4.1 of the Final RIR/4(b)(2)PA/FRFA discusses
the subject proposed pipeline, referred to as Beluga to Fairbanks
Natural Gas Pipeline Project. Potential impacts to this project are
included in Table 6-28.
Comment 77: Two comments state that Escopeta Oil's Kitchen Lights
Unit project to bring a jack-up rig to the Cook Inlet this spring and
drill the 1 Kitchen Lights Unit well was put on hold
indefinitely because of the proposed critical habitat designation for
Cook Inlet beluga whale. According to the commenters, to date Escopeta
Oil has spent over $20 million on the project (estimate by the second
commenter is $50 million), and this proposed designation has deterred
this initial investment away from Cook Inlet. If Ecopeta Oil is not
allowed to drill the Kitchen Lights Unit by the Federal Government, it
will lose its significant investment in Alaska, and the State of Alaska
and its people will also lose a long-term supply of natural gas and the
jobs and revenues created from the Kitchen Lights Unit development
program. Further, should an oil and gas company desire to perform the
costly
[[Page 20197]]
proposition of drilling an offshore well in the Cook Inlet with this
designation, it will have to budget millions of dollars for additional
consultations, duplicative permits, delays, legal fees, and
litigation--without any guarantee of drilling the first well.
Response: Section 6.4.1 and 7.1.1 and Table 6-28 of the Final RIR/
4(b)(2)PA/FRFA discuss the status and impacts to Escopeta Oil's Kitchen
Lights Unit. Additional research conducted by NMFS reveals that the
Kitchen Lights Unit program has a history of delays due to the company
not being able to fulfill several commitments required not only for
technically exploring its prospects, but also for meeting the legal
terms of the State of Alaska's oil and gas leases. The latest available
information suggests that, as part of its agreement with the State of
Alaska to hold onto its Kitchen Lights leases, Escopeta Oil has to
drill an exploration well in the unit by the end of 2010. However,
following the proposed designation, the company asked the State of
Alaska in a December 16, 2009, letter to guarantee no Federal
interference in the company's Cook Inlet oil and gas drilling
activities planned for 2010 (Petroleum News, December 20, 2009). The
State did not offer such a guarantee (Petroleum News, December 27,
2009). It is anticipated that, while the project's potential to affect
critical habitat could trigger the section 7 consultation process and
may result in project modifications, there is no evidence suggesting
that the potential loss of initial investment in Cook Inlet activities
by the company due to the project being put on hold is attributable to
the designation. Future economic impacts may arise from the need to
consult under section 7 to avoid jeopardy and/or to avoid destroying or
adversely modifying critical habitat. However, the commenter did not
present any evidence indicating that there would be impacts
attributable only to the critical habitat designation, nor when in the
future such renewed activity might be expected.
Comment 78: One commenter notes that impacts to the $4 billion
Enstar bullet pipeline should be considered. The proposed pipeline
would connect Alaska North Slope gas fields through Fairbanks to the
Beluga gas facility. This project is competing with the ANGDA spur line
project to supply both local consumption and liquid products export.
According to the commenter, Enstar is currently pursuing Alaska
environmental permits for this project.
Response: Research conducted by NMFS suggests that Enstar bullet
pipeline, now referred to as Alaska Stand Alone Pipeline (ASAP), is in
the preliminary planning and engineering stage. The plan, initiated
originally by Enstar Natural Gas, is now being coordinated by the
Alaska Governor's office. The preparation of an Environmental Impact
Statement has been initiated. Given that the project alternatives have
not been finalized yet, it is unclear whether the pipeline itself will
reach the waters of Cook Inlet; however, it is possible that some
associated facilities may be located in the vicinity. Because the
project is in such preliminary stages, what activities it may stimulate
in Cook Inlet and how those activities would be impacted by the
designation of the beluga whales' critical habitat is too speculative
for consideration in the economic analysis.
Comment 79: The Tyonek Native Corporation states that impacts of
the proposed critical habitat designation on the following two projects
should be considered in the analysis:
The Corporation is developing plans to mine and export high quality
aggregate from its North Forelands Dock and Industrial Area using the
existing adjacent pier, which would require modification (see http://www.tyonek.com/Presentations/tnc-wci08.pdf). According to the
commenter, the project would result in increased vessel traffic through
this area. This project is expected to have a total construction cost
of approximately $20 million.
Alaska Natural Resources to Liquids recently completed a $1.5
million preliminary feasibility study with the help of the Alaska
Industrial Development and Export Authority (see http://www.aidea.org/PDF%20files/BelugaCTLoverview9-20-06.pdf) on the Beluga Coal to Liquids
Plant. Plans call for using coal from the Chuitna coal fields to
produce 80,000 barrels per day of diesel and naphtha for U.S. West
Coast markets. In addition, the facility would produce jet fuel and
petrochemical feedstocks. This fuel would be shipped out of the
existing North Forelands Dock, which would require modification, and
result in increased vessel traffic through this area. This project is
expected to have a total construction cost, including supporting
infrastructure, of approximately $12 billion.
Because these projects may affect a small portion of Cook Inlet
beluga whale habitat, but are highly unlikely to jeopardize the
existence of the whales, project modification costs should be
estimated. The Corporation has requested that Sections 6.4.2, 7-2, and
9-2-1.1 and Table 6-28 of the Draft RIR/4(b)(2)PA/IRFA be revised to
include the potential cost impacts of critical habitat designation to
these projects.
Response: The commenter has not provided sufficient information
regarding the current stages of the projects, or the likelihood of
these occurring in the next 10 years, with which to conduct an
evaluation of the economic impacts on these project proposals from the
designation of critical habitat. Even if the projects were reasonably
likely to occur during the time period under analysis, the modification
of the North Forelands Dock would require a Federal permit, likely from
the U.S. Army Corps of Engineers (ACOE), which would likely trigger a
section 7 consultation (possibly two--one for each project). The
consultation could be formal if the dock modification requires pile
driving or informal otherwise. However, the costs associated with the
consultation to ensure that the project does not destroy or adversely
modify critical habitat would be co-extensive with those arising from
the consultation to ensure that the project does not jeopardize the
whales' existence. Such consultation is required if a Federal action
may affect the endangered Cook Inlet beluga whale (50 CFR 402.14).
As for the increase in vessel traffic, it would be considered an
indirect, interrelated, or interdependent action under the
consultation. Given that it is unclear at this point if the increase in
vessel traffic associated with the projects would create enough noise
to cause abandonment of habitat, the increased vessel traffic would
likely raise questions concerning whether the action would result in
takings of the whale. Accordingly, economic impacts associated with the
consultation over that action would be co-extensive between the
jeopardy and destruction/adverse modification of critical habitat
standards.
Comment 80: A commenter notes that the proposed critical habitat
designation is likely to have a significant impact on exploration for
and production of natural gas in the Cook Inlet region, which could
directly affect the cost of electricity to Chugach Electric
Association's customers. Chugach generates most of its electricity from
natural gas produced in the Cook Inlet region. Designating the upper
half of Cook Inlet, South to below Kalgin Island, as beluga whale
critical habitat sweeps in all of the existing offshore oil and gas
fields in the Inlet. This is likely to have an impact on all future oil
and gas exploration in the region. The Draft RIR/4(b)(2)PA/IRFA
contains no meaningful discussion of the impact this will have on
future oil and gas
[[Page 20198]]
exploration and development in Cook Inlet, and no discussion of the
resulting impact on the cost of electricity in the Railbelt region,
where most of Alaska's population is located. These economic impacts
should have been part of the Draft RIR/4(b)(2)PA/IRFA. When these costs
are given their proper weight, it should be readily apparent that the
potential benefits to the whales of an unfocused and overly broad
critical habitat designation are outweighed by the resulting economic
impacts.
Response: As has been explained in more detail in responses to
other similar comments above, oil and gas exploration activities are
already required to comply with ESA section 7's jeopardy standard due
to the listing of Cook Inlet beluga whale. It is the additional
economic impacts that stem from the designation of critical habitat
that comprise the economic impacts of section 7 consultations analyzed
pursuant to section 4(b)(2) of the ESA.
The comment suggests that future oil and gas exploration in Cook
Inlet will be adversely impacted by the critical habitat designation,
with resulting costs imposed on electricity users throughout the
Railbelt region of Alaska, in the form of (implicitly) higher costs. We
do not agree with these assertions for the following reasons. First,
the incremental cost uniquely attributable to the critical habitat
designation as it pertains to project review within Cook Inlet has been
demonstrated to be very small. Economic impacts arising from the need
to consult under section 7's jeopardy standard are not considered to be
economic impacts arising from the designation of critical habitat.
After review of the best scientific data available regarding the status
of the beluga whale and the nature of the reasonably foreseeable
Federal actions in and around Cook Inlet, we concluded that a
substantial portion of the economic impacts associated with the
designation of critical habitat are co-extensive with those arising
from the listing decision. Second, the empirical data and commercial
information (much of which is cited by numerous commenters referenced
above) suggest that supplies of gas in Cook Inlet are nearing
exhaustion. This conclusion is also evidenced in the marketplace by the
several competing proposals to supply North Slope gas to the Cook Inlet
region via pipeline. If, as asserted by the region's oil and gas
industry sector representatives (see submitted comments on gas
pipelines and critical habitat designation, above), tens of millions to
hundreds of millions of dollars have been invested by several competing
interests in efforts to build a gas delivery system to ``move available
gas into the Cook Inlet region'' in response to dwindling local
supplies, it appears that the marketplace and nature of supply and
demand are having, and will continue to have, significant economic
impacts on future Cook Inlet gas exploration.
Comment 81: Several comments state that the proposed designation of
the entire Cook Inlet as critical habitat for the beluga whale creates
an additional stigma towards future exploration and development in the
Cook Inlet region. The negative impact created by this designation
creates an anti-development stigma that is contrary to the national
energy policy and prejudices Alaska's ability to responsibly explore
and develop its natural resources for the benefit of all Alaskans.
Potential investors may withdraw their support for projects in the
Cook Inlet region because of increased project costs. The additional
costs include: compliance costs, litigation costs related to suits
initiated by NGOs, and perhaps the greatest of all, lost opportunity
costs resulting from loss of investment. The evaluation of the economic
costs of critical habitat must include a complete evaluation of these
factors by independent investigators from outside the agencies involved
in the listing and habitat designation process.
Response: While substantial areas of Cook Inlet are proposed for
inclusion in this designation action, critical habitat does not extend
to the entire inlet. Indeed, the vast majority of the lower inlet is
not proposed for inclusion. We cannot speculate on ``stigma'' or ``loss
of investor interest'' as no empirical evidence or analysis of such
effects for Cook Inlet exists. Moreover, as our economic impact
analysis indicates, most of the economic impacts on future natural
resource exploration and development in Cook Inlet arising from ESA
compliance requirements would exist even without the designation of
critical habitat.
Comment 82: A number of commenters note that the proposed critical
habitat designation may affect barge and vessel activity in Cook Inlet,
resulting in impacts to their projects. Critical habitat designations
could increase costs by requiring observers on board, decrease
efficiency by setting speed limits or time and area restrictions, and
ultimately raise the cost of all goods, and subsequent services, paid
for by Alaskans. Any shipping delays will have particularly significant
consequences for this area, because shipping schedules are affected by
tides, and delays are compounded by the fact that Anchorage has minimal
storage capacity for goods and must carefully coordinate shipping
schedules. Certain planned projects are anticipated to significantly
increase vessel traffic, and commenters request these impacts be
included in the Draft RIR/4(b)(2)PA/IRFA.
Response: Section 7 of the ESA does not apply generically to vessel
movement or activity. As explained previously, section 7's consultation
requirements apply only when there is a Federal action (actions
authorized, funded, or carried out by a Federal agency). The
designation of critical habitat for the Cook Inlet beluga whale is not
anticipated to require any additional restrictions on barge and vessel
movement, above and beyond any such restrictions already being imposed
following section 7 consultations to avoid jeopardy. Generally, where a
proposed Federal action will result in increases in vessel traffic,
such increases are considered indirect effects or arising from
interrelated or interdependent actions under section 7 consultation
regulations (50 CFR 402.02). Given that it is unclear at this point if
the potential increases in vessel traffic associated with projects in
Cook Inlet could create enough noise to result in the abandonment of
critical habitat areas, the increased vessel traffic, if it were to
represent a concern, would likely be considered a take issue.
Accordingly, the economic impacts from that consultation would be
attributable to the listing of the whale as an endangered species.
Comment 83: Some comments suggest that in order to conform to the
critical habitat designation, the Anchorage Water and Wastewater
Authority (AWWU) must upgrade its sewage treatment plant, which would
cost between $400 million and $1 billion. This could potentially triple
Anchorage residents' wastewater bills. Nowhere is this reflected or
accounted for in the Draft RIR/4(b)(2)PA/IRFA, which is clearly
contrary to the requirements of the ESA.
Response: Sections 6.4.6 and 7.6 and Table 6-28 of the Final RIR/
4(b)(2)PA/FRFA describe the potential costs of the proposed critical
habitat designation to AWWU. The costs that can appropriately be
attributed to critical habitat designation are anticipated to stem
solely from a formal section 7 consultation. It is expected that in
compliance with the CWA, AWWU may be required by the Environmental
Protection Agency (EPA) to upgrade its John Asplund Wastewater
Treatment Plant (WWTP), to meet national waste water discharge
standards. The compliance exemption for the facility
[[Page 20199]]
has expired and EPA is currently reviewing the facility's operating
permit. Therefore, any resulting cost associated with the upgrade or
improvement of the plant to meet CWA mandates would not be attributable
to the designation of Cook Inlet beluga whale critical habitat.
Comment 84: One comment notes that the City of Kenai operates a
wastewater treatment plant at the mouth of the Kenai River. The
permitted discharge is into Cook Inlet. We expect, but cannot confirm,
that the City will have to comply with new effluent standards, as a
result of the designation. The cost of plant upgrades could range from
$250,000 to $50,000,000.
Response: The Final RIR/4(b)(2)PA/FRFA discusses the Kenai
Wastewater Treatment Facility in Section 6.4.6. The facility is
considered a major discharger under EPA standards. As discussed in the
response to the previous comment regarding John Asplund WWTP, any
required upgrades to the facility in order to comply with CWA standards
would not be attributable to the critical habitat designation.
Comment 85: One commenter states that there is increasing demand
for coal in Pacific Rim countries. After many years of lackluster
demand in the export coal market, prospects are looking better for
development of a coal export business, and Cook Inlet could play a key
role in that development. Critical habitat designation in the Port
Mackenzie area and for the shipping lanes through upper Cook Inlet
could be a serious impediment to coal and other export opportunities.
Clearly, there are many opponents to coal development, and critical
habitat designation would provide them with a powerful tool to hamper
and potentially stop coal and other bulk commodity exports, with no
corresponding benefit to the beluga whales.
Response: As explained above, the designation of critical habitat
for the Cook Inlet beluga whale is not anticipated to require any
additional restrictions on barge and vessel movement in Cook Inlet,
above and beyond those already being imposed following section 7
consultations to avoid jeopardy.
Comment 86: Several comments suggest that the proposed critical
habitat designation could affect tourism in Southcentral Alaska.
Holland America Cruise Lines is planning to bring numerous cruise ships
into the POA and Homer. Future moorings by the industry could be
decreased or eliminated as a result of a critical habitat designation.
Subsequently, decrease in the number of visitors to Southcentral Alaska
could transpire as limitations are placed on sport fishing, sightseeing
cruises, and other operations. Local communities will be significantly
impacted through decreased bed and rental taxes.
Response: As discussed in an earlier response, the POA is not
included in the proposed critical habitat designation because of
impacts to national security. Therefore, future moorings at POA are not
likely to be affected by the designation of critical habitat for the
Cook Inlet beluga whale.
Comment 87: A large number of comments provided both through
written letters and orally during the public hearings assert they place
a very great value upon, and derive substantial personal utility and
enjoyment from, watching Cook Inlet beluga whales and having the
opportunity to interact with the species in a wild environment.
Further, some commenters made special note of the need to preserve this
experience for future generations.
Response: We acknowledge these comments on the benefits accruing to
area residents, tourists, and other visitors to Cook Inlet, and the
value experienced by those interested in maintaining for future
generations the opportunity to encounter the Cook Inlet beluga whale in
its native habitat in such close proximity to a large population
center. We provided an extensive treatment of the theoretical
foundations, technical considerations, and empirical methodologies that
have been developed and applied to quantitatively measure and evaluate
economic benefits attributable to non-market use and passive-use
values, as reflected in these comments. We believe that the designation
of critical habitat will play a major role in ensuring the conservation
of the Cook Inlet beluga whale to the benefit of current and future
generations.
Comment 88: Several comments question the benefits of the proposed
critical habitat designation (due to preserving the natural beauty of
Cook Inlet) in attracting and retaining workers, and in adding value to
visitors who recreate in the area. Concern is expressed that benefits
in retaining workers are hypothetical and that Cook Inlet is one of the
most pristine areas of the United States, such that workers would not
reasonably be affected by the proposed critical habitat designation in
their location decision. One commenter also suggested that these
benefits can only be realized if there are jobs present that enable
people to live and work in the Cook Inlet area.
Response: It is well documented that quality of life factors,
including environmental quality and recreation opportunities, enter
into employee and business location decisions (see Love and Crompton,
1999; Florida, R, 2000; Granger and Blomquist, 1999). To the extent
that the proposed critical habitat designation preserves the
environmental quality, natural resource amenities, and recreation
opportunities in Cook Inlet, visitors and residents alike will benefit.
It is not known how the incremental improvement in environmental
quality, due to the proposed critical habitat designation, will affect
the ability of any particular business or industry to attract and
retain employees; hence, the Final RIR/4(b)(2)PA/FRFA notes that these
benefits are likely to be ``relatively small'' and are not quantified
in the analysis. Regarding job growth, recreation and tourism
industries depend on aesthetic amenities, environmental quality, access
to fish and wildlife (e.g., fishing, hunting, viewing, photographing),
etc., and it is precisely these aspects and attributes that are
expected to benefit due to the proposed critical habitat designation in
Cook Inlet.
Comment 89: Several comments expressed concern about the lack of
quantification of benefits of the proposed critical habitat
designation. According to some comments, this leads to an overstatement
of speculative or hypothetical benefits, and an arbitrary and biased
conclusion that the proposed critical habitat designation results in a
net benefit to the Nation. Additional concern is expressed that the net
benefit finding is not replicable, and that there is no evidence or
factual basis for these benefits. One comment also notes that well-
being, as a measure of benefit, is ill-defined, and questions what
`goods and services' would be provided to the public due to the
proposed critical habitat designation that would increase well-being.
Other comments assert that, by not quantifying benefits, the analysis
understates the benefits of the proposed critical habitat designation.
Response: The principal benefit of the proposed critical habitat
designation is the avoidance of destruction or adverse modification of
the critical habitat of the Cook Inlet beluga whale, supporting the
conservation and recovery of this endangered species, as provided for
under the ESA. These benefits are biological. Ancillary economic,
socioeconomic, cultural, educational, and procedural benefits are also
expected to accrue, associated with the designation and related
preservation and possible incremental improvement of the inlet's
environmental quality. Quantifying economic benefits requires
identifying the net change in environmental amenities and service
[[Page 20200]]
flows, such as air quality, water quality, or fish and wildlife
populations (among others), specifically attributable to, in this
instance, the proposed Cook Inlet beluga whale critical habitat
designation. While the degree of biological, environmental, and
economic benefit is not readily amenable to quantification, it is known
that relatively small changes in environmental quality and wildlife
abundance can provide significant economic benefits (also referred to
as increased well-being or utility) through both use and non-use
values. Evidence of these types of values is documented in the Final
RIR/4(b)(2)PA/FRFA. Thus, while it is not possible to monetize, or even
quantify these benefits, the best economic data available provide
substantial evidence that the magnitude of anticipated benefits
outweigh the anticipated costs. This is supported by the fact that we
have determined, based upon the best scientific data available, the
incremental cost attributable to the proposed critical habitat
designation is likely small, relative to the expected benefits.
Comment 90: Several comments note that NMFS has stated it has
little specific empirical information with which to predict how
consultations initiated by critical habitat considerations might lead
to any particular project modification, yet the stated primary benefit
in the Draft RIR/4(b)(2)PA/IRFA of critical habitat is the requirement
for consultations to ensure that action agency actions do not modify or
destroy critical habitat. These comments assert that NMFS has not shown
how the measurable improvement would be attributable to the proposed
critical habitat designation and, thus, lacks a factual basis for
estimating benefits. Similarly, several comments note that it is
important to distinguish the incremental benefits of the proposed
critical habitat designation from the baseline benefits of listing the
Cook Inlet beluga whale, as well as other existing management and
regulatory requirements.
Response: The commenters are correct that we have stated that the
primary benefit of critical habitat designation is the biological
benefit that will accrue from consultations that result in avoiding or
minimizing adverse modification or destruction of critical habitat. As
stated in the Final RIR/4(b)(2)PA/FRFA, ``The primary driver for
benefits from [the critical habitat designation] is a potential change
in the quality or condition of the critical habitat absent [the
critical habitat designation].'' Critical habitat designation is,
fundamentally, an action to promote the conservation of the species.
Ancillary economic, socioeconomic, educational, procedural, cultural,
and aesthetic benefits (among others) also accrue from the critical
habitat designation, contributing to the aggregate benefit measure.
While the exact number of affected projects and the precise types of
project modifications that may be uniquely attributable to the critical
habitat designation (and not the listing of the Cook Inlet beluga
whale) cannot be known, we reasonably assume that whatever
modifications occur, they will contribute to the conservation of Cook
Inlet beluga whales and generate biological benefits that yield
associated economic value.
We agree that, in assessing the benefits arising from the
designation of critical habitat, we must focus on those incremental
benefits that are uniquely attributable to the designation and not to
the endangered listing. Our analysis endeavored to distinguish between
such incremental and co-extensive benefits.
Comment 91: Numerous comments emphasize the social and cultural
importance of the beluga whale to the region, as indicated by the
naming of places, such as Beluga Lake, in the region and the
traditional ways that are centered on the Cook Inlet beluga whale.
Several comments indicate that the dollar value of the social and
cultural benefits is very high.
Response: The Final RIR/4(b)(2)PA/FRFA discusses the cultural use
and passive use importance of the Cook Inlet beluga whale and notes
such examples as the traditional subsistence and cultural harvesting by
Alaska Native groups, the naming of places, public educational
displays, numerous technical and popular books, and the utility
accruing to individuals from the knowledge that Cook Inlet beluga
whales persist within their natural habitat in Cook Inlet. Cultural use
values are recognized as real and potentially significant benefits
deriving from the proposed critical habitat designation, but have not
been estimated in dollar terms, owing to the complexity, high cost, and
controversy associated with estimation of such values. Cultural values
have been asserted by some to be unique to each group of people and, as
such, do not readily lend themselves to monetary approximation.
Similarly, cultural passive use values are not quantified, as there are
not appropriate studies available upon which to base rigorous,
quantitative estimates.
Comment 92: A number of comments question the potential of the
proposed critical habitat designation to increase fish stocks and
benefit commercial and sport fisheries. Some comments cite baseline
requirements to maintain the reproductive capacity of fish stocks as
indicating that critical habitat will not increase stocks, while other
comments note that, to the extent that critical habitat increases the
Cook Inlet beluga whale population, consumption of fish by beluga
whales will result in a net decrease in available fish for commercial
and sport anglers. One comment also asserts that fishing will be
limited in the proposed critical habitat designation if it is found to
have potential adverse effects on the environment, while other comments
note that the analysis should further assess the benefits of enhanced
commercial and sport fisheries attributable to the proposed critical
habitat designation.
Response: As noted in the Final RIR/4(b)(2)PA/FRFA, it is possible
that commercial and sport fisheries will experience small, indirect
benefits attributable to the proposed critical habitat designation, as
fish stocks share habitat with Cook Inlet beluga whales and benefit
from avoidance of destruction or adverse modification of that (i.e.,
their common) habitat. Effects of the proposed critical habitat
designation on fishing activity are likely to be limited, because most
of the fisheries in Cook Inlet occur in state waters and are managed by
the State of Alaska. Though speculative, were a Federal action to occur
that implicated those fisheries, effects from their management would
likely be considered in the cumulative effects section of the
biological opinion (See 50 CFR 402.02). At this time, however, it is
impossible to speculate as to what that Federal action would be and how
the state-managed fisheries would be analyzed. As described in the
Final Draft RIR/4(b)(2)PA/FRFA, it is anticipated that there will be an
informal consultation, approximately every 5 years, over Federal
management of Cook Inlet commercial groundfish fisheries, attributable
to the designation of the beluga whales' critical habitat.
Comment 93: Several comments question the benefit of education and
outreach associated with the proposed critical habitat designation, and
assert that this is a baseline benefit that accrues due to the 2008
Conservation Plan for the Beluga Whale.
Response: The volume of public comments received on the Draft RIR/
4(b)(2)PA/IRFA indicates the level of public awareness of this process
and the potential for education and outreach benefits. Furthermore, the
consultation process, itself, serves to increase
[[Page 20201]]
awareness and sensitivity in design, execution, and operation of
proposed projects.
Comment 94: Several comments note that the Alaska tourism industry,
including activities such as whale watching, are important to the
Alaskan economy and may benefit from the proposed critical habitat
designation. These comments note that tourists are attracted to Alaska
because of the scenic beauty and wildlife viewing opportunities, and
protecting these assets has direct economic benefit.
Response: As noted in the Final RIR/4(b)(2)PA/FRFA, leisure
activities, such as fishing, whale watching, and other wildlife viewing
may be enhanced by the proposed critical habitat designation, insofar
as the designation prevents or mitigates degradation, destruction, or
adverse modification of critical habitat areas. While the recreation-
related economic benefits of the proposed critical habitat designation
are real, and potentially significant, these benefits have not been
estimated in dollar terms because empirical data and relevant research
are not currently available. It is reasonable to assume, nonetheless,
that designation of critical habitat in Cook Inlet for the beluga whale
will benefit recreation and tourism, and the businesses that depend
upon and support these user groups.
Comment 95: Several comments were provided regarding the comparison
of market-based, monetary estimates of economic cost, to non-market
benefits measured through willingness-to-pay studies and other methods.
Some comments questioned the reliability and validity of estimates of
non-market values, while other comments noted that there are inherent
values to the proposed critical habitat designation that are not
measured in the marketplace with dollar values.
Response: Non-market valuation of species, habitats, and
environmental amenities is an accepted and standard practice in the
economics profession and endorsed for use by Federal agencies, when and
where market prices do not exist. According to Office of Management and
Budget guidelines for economic analysis of Federal regulations under
Executive Order 12866, all benefits to society should be measured in
cost-benefit analyses of Federal regulations, including non-market
benefits that are not traded directly in the marketplace. The Executive
Order stipulates that estimation of the monetary value of goods or
services indirectly traded in the marketplace (such as whale watching
trips and scenic views from residential homes) should be based on
willingness-to-pay valuation methodology, using actual market
transactions where possible. For goods that are not traded directly or
indirectly in the marketplace, the Executive Order recommends the use
of contingent-valuation methods to estimate economic value. At present,
no such empirical studies have been completed for the Cook Inlet beluga
whale or its critical habitat. We have, however, initiated just such an
analysis. Its results are not expected to be available for several
years. Until that time, it must suffice to observe that non-market,
non-use, and passive-use economic values represent relevant, and very
often significant, aspects of the benefits deriving from Federal
actions pertaining to ESA listings and critical habitat designation.
These estimation techniques, such as the contingent valuation method,
have been reviewed and approved by peer review scientific panels and
sanctioned by Federal courts.
Comment 96: A few comments cite additional economic studies that
could be used to develop value estimates of the proposed critical
habitat designation, including studies from Japan, regarding the value
of beluga whales, a study on the benefits of expanding California's sea
otter population, and a study of the benefits of designating critical
habitat for the lynx. Another comment asserted that ``benefits
transfer'' estimation techniques can be applied to the estimation of
non-market values attributable to Cook Inlet beluga whale critical
habitat designation, using a value function.
Response: There are numerous peer-reviewed studies, such as those
referred to in the comments, which provide estimates that provide
nonmarket value of species and habitat. As discussed in Appendix A of
the Final RIR/4(b)(2)PA/FRFA, we have determined that the values from
these studies are not directly applicable to the Cook Inlet beluga
whale, beyond confirming that non-market and passive-use values exist
with respect to the designation of critical habitat for the Cook Inlet
beluga whale.
There are approaches to quantitatively estimating the value of
critical habitat designation, such as outlined in Kroeger (2004), a
study referenced in the comments. Kroeger outlined a meta-analysis
approach (which is regression analysis of several studies' results) for
determining the per-acre net benefits for critical habitat conservation
for lynx habitat conservation areas. Kroeger points out that generating
benefit transfer estimates through meta-analysis could be error prone,
if the studies used in the meta-analysis differ from the study site in
perceived resource quality.
Another study recommended in the comments used a meta-analysis
approach to derive the benefits to California households of an
increased southern sea otter population. Based on existing valuation
literature on the species (and other rare and endangered species), this
study estimates the non-market benefits of the species itself. This
study thus values species based on population increases, rather than
habitat designation. This differs from the policy context for
estimating benefits of beluga whale proposed critical habitat
designation, as there are no quantitative estimates available for how
the proposed critical habitat designation will affect Cook Inlet beluga
whale population estimates.
Cultural values of species habitat conservation inherently differ
by culture. Values derived in Japan, while an indicator of potential
value, are not used in this analysis.
Comment 97: Several comments concern the assumptions regarding the
current environmental conditions in Cook Inlet, or regarding the effect
of the proposed critical habitat designation on environmental
conditions. Specifically, some comments assert that the analysis
erroneously assumes that degradation of habitat is inevitable in the
absence of the proposed critical habitat designation, while others
allege that the analysis mistakenly assumes that the proposed critical
habitat designation will improve the quality of the natural environment
in Cook Inlet, above current levels. One commenter was concerned that
the analysis implies that Cook Inlet is currently polluted.
Response: The Final RIR/4(b)(2)PA/FRFA recognizes that the current
state of Cook Inlet is suitable for the conservation and recovery of
the species. The aim of the critical habitat designation is to bring
about the conservation of the Cook Inlet beluga whale through the
creation of the benefits described above. The analysis does assume
that, in the absence of the designation, the risk of degradation is
unacceptably high and that through consultations the risk of
degradation otherwise occurring in connection with Federal actions in
Cook Inlet will be reduced.
Critical Habitat
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
[[Page 20202]]
impact, of specifying any particular area as critical habitat.'' This
section also 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 applies along with the section 7 requirement that Federal
agencies ensure their actions do not jeopardize the continued existence
of listed species.
Physical and Biological Features Essential for Conservation
ESA section 3(5)(A)(i) defines critical habitat to include 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
(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.''
Scientific research, direct observation, and TEK indicate fish are
the primary prey species of the Cook Inlet beluga whale, and that
certain species are especially important. This importance may be due to
feeding strategies of the whales, physical attributes of the prey
(e.g., size), the caloric value of the prey, the availability of the
prey, and the life-history aspects of the whales, among other
considerations. Two fish species that are highly utilized by Cook Inlet
beluga whales are king (Chinook) salmon and Pacific eulachon
(hooligan). Both of these species are characterized as having very high
fat content, returning to the upper Inlet early in the spring, and
having adult (spawning) returns which occupy relatively narrow
timeframes during which large concentrations of fish may be present at
or near the mouths of tributary streams.
Analysis of stomach contents and research of fatty acid signatures
within beluga blubber indicate the importance of other species of
fishes and invertebrates to the diets of these whales. The most
prominent of these are other Pacific salmon (sockeye, chum, and coho),
Pacific cod, walleye pollock, saffron cod, and yellowfin sole. Beluga
whales are also known to feed on a wide variety of vertebrate and
invertebrate prey species. However, the aforementioned fish species
occupy a prominent role in their foraging and energetic budgets and are
considered essential to the beluga whales' conservation.
NMFS research has considered the distribution of the Cook Inlet
beluga whale and its correlations with behavior, habitat function, and
physical parameters (Goetz et al., 2007). While these whales are highly
mobile and capable of ranging over a large portion of Cook Inlet on a
daily basis, in fact they commonly occupy very discrete areas of the
Inlet, particularly during summer months. These areas are important
feeding habitats, whose value is due to the presence of certain species
of prey within the site, the numbers of prey species within the site,
and the physical aspects of the site which may act to concentrate prey
or otherwise facilitate feeding strategy. In upper Cook Inlet, beluga
whales concentrate offshore from several important salmon streams and
appear to use a feeding strategy which takes advantage of the
bathymetry in the area. The channels formed by the river mouths and the
shallow waters act as a funnel for salmon as they move past waiting
belugas. Dense concentrations of prey may be essential to beluga whale
foraging. Hazard (1988) hypothesized that beluga whales were more
successful feeding in rivers where prey were concentrated than in bays
where prey were dispersed. Fried et al. (1979) noted that beluga whales
in Bristol Bay fed at the mouth of the Snake River, where salmon runs
are smaller than in other rivers in Bristol Bay. However, the mouth of
the Snake River is shallower, and hence may concentrate prey. Research
on beluga whales in Bristol Bay suggests these whales preferred certain
streams for feeding based on the configuration of the stream channel
(Frost et al., 1983). This study theorized beluga whales' feeding
efficiencies improve in relatively shallow channels where fish are
confined or concentrated. Bathymetry and fish density may be more
important than sheer numbers of fish in beluga whale feeding success.
Although beluga whales do not always feed at the streams with the
highest runs of fish, proximity to medium to high flow river systems is
also an important descriptor in assigning importance to feeding
habitats. Research has found beluga whale distribution in Cook Inlet is
significantly greater near mudflats and medium and high flow
accumulation rivers. (These waters were categorized in Goetz et al.
(2007) using a digital elevation model, similar to drainage basins. A
complete list of these waters may be found on our Web site http://www.fakr.noaa.gov/). Beluga whales are seldom observed near small flow
tributaries.
Cook Inlet beluga whales are preyed upon by killer whales, their
only known natural predator. We have received reports of killer whales
throughout Cook Inlet, and have responded to several instances of
predation within Turnagain Arm, near Anchorage.
Given the small population size of the Cook Inlet beluga whale,
predation may have a significant effect on beluga whale recovery. In
addition to directly reducing the beluga whale population, the presence
of killer whales in Cook Inlet may also increase stranding events. We
consider killer whale predation to
[[Page 20203]]
be a potentially significant threat to the conservation and recovery of
these whales. Beluga whales may employ several defense strategies
against killer whale predation. One strategy is to retreat to shallow
estuaries too shallow for the larger killer whales. These areas might
also provide acoustical camouflage due to their shallow depths, silt
loads, and multiple channels.
Because of their importance in the Cook Inlet beluga whales'
feeding strategy, as predator escape terrain, and in providing other
habitat values, we consider ``mudflats,'' identified here as shallow
and nearshore waters proximate to certain tributary streams, to be a
physical feature essential to the conservation of the Cook Inlet beluga
whale.
For purposes of describing and locating this feature, and after
consultation with the author of the model presented in Goetz et al.
(2007), we determined spatial extent of this feature may best be
described as being within the 30-foot (9.1-m) depth contour and within
5 miles (8.0 km) of medium and high flow accumulation rivers. These
accumulation rivers are also waters with populations of anadromous fish
that are important prey to Cook Inlet belugas.
It appears Cook Inlet beluga whales have lower levels of
contaminants stored in their bodies than other populations of belugas.
Because these whales occupy the most populated and developed region of
the state, they must compete with various anthropogenic stressors,
including pollution. These whales often occur in dense aggregations
within small nearshore areas, where they are predisposed to adverse
effects of pollution. Beluga whales are apex predators, occupying the
upper levels of the food chain. This predisposes them to illness and
injury by biomagnification of certain pollutants. Another population of
beluga whales found in the Gulf of St. Lawrence in Canada is
characterized by very high body burdens of contaminants. There, high
levels of PCBs, DDT, Mirex, mercury, lead, and indicators of
hydrocarbon exposure have been detected in beluga whales. These
substances are well-known for their toxic effects on animal life and
for interfering with reproduction and resistance to disease. Many of
these contaminants are transferred from mother to calf through nursing.
Given present abundance levels, the impact of any additional
mortalities to the extinction risk for this DPS, the sensitivity of
beluga whales to certain pollutants, their trophic position and
biomagnifications, the fact that large numbers of Cook Inlet beluga
whales typically occupy very small habitats, and that their range
includes the most populated and industrialized area of the state, we
consider water quality to be an important aspect of their ecology, and
essential to their conservation within both areas 1 and 2.
Cook Inlet beluga whales do not occupy an extensive range, and are
not known to undertake migrations. Within their occupied range,
however, these whales move freely and continuously. The range of the
Cook Inlet beluga whale is neither biologically nor physically uniform.
It ranges between shallow mudflats, glacial fjords, deep waters with
marine salinities, vegetated shallows of predominantly freshwaters, and
areas of the upper Inlet in which heavy ice scour, extreme tidal
fluctuations, high silt content, low temperatures, and high turbidity
work to limit any intertidal or persistent nearshore organisms. Beluga
whales have adapted here by utilizing certain areas over time and space
to meet their ecological needs. While much remains to be understood of
their ecology and basic life history, it is apparent a large part of
their movement and distribution is associated with feeding. Feeding
habitat occurs near the mouths of anadromous fish streams, coinciding
with the spawning runs of returning adult salmon. These habitats may
change quickly as each species of salmon, and often each particular
river, is characterized as having its individual run timing. Calving
habitat is poorly described, but may depend on such factors as
temperatures, depths, and salinities. Predator avoidance may be a very
important habitat attribute, and is likely to exist only in shallows
within Turnagain and Knik Arms of the upper Inlet. Causeways, dams, and
non-physical effects (e.g., noise) can interfere with whale movements.
It is essential to the conservation of Cook Inlet beluga whales that
they have unrestricted access within and between the critical habitat
areas.
Beluga whales are known to be among the most adept users of sound
of all marine mammals, using sound rather than sight for many important
functions, especially in the highly turbid waters of upper Cook Inlet.
Beluga whales use sound to communicate, locate prey, and navigate, and
may make different sounds in response to different stimuli. Beluga
whales produce high frequency sounds which they use as a type of sonar
for finding and pursuing prey, and likely for navigating through ice-
laden waters. In Cook Inlet, beluga whales must compete acoustically
with natural and anthropogenic sounds. Man-made sources of noise in
Cook Inlet include large and small vessels, aircraft, oil and gas
drilling, marine seismic surveys, pile driving, and dredging.
Anthropogenic noise above ambient levels may cause behavioral
reactions in whales (harassment) or mask communication between these
animals. The effects of harassment may also include abandonment of
habitat. At louder levels, noise may result in temporary or permanent
damage to the whales' hearing. Empirical data exist on the reaction of
beluga whales to in-water noise (harassment and injury thresholds) but
are lacking regarding levels that might elicit more subtle reactions
such as avoiding certain areas. Noise capable of killing or injuring
beluga whales, or that might cause the abandonment of important
habitats, would be expected to have consequences to this DPS in terms
of survival and recovery. We consider ``quiet'' areas in which noise
levels do not interfere with important life history functions and
behavior of these whales to be a necessity. Therefore, we consider the
assurance of in-water noise levels that do not cause beluga whales to
abandon or fail to access important critical habitat areas, such as
foraging sites at river mouths, to be an essential feature. This
feature is found in both areas 1 and 2.
Based on the best scientific data available of the ecology and
natural history of Cook Inlet beluga whales and their conservation
needs, we have determined the following physical or biological features
are essential to the conservation of this species:
(1) Intertidal and subtidal waters of Cook Inlet with depths less
than 30 feet (MLLW)(9.1 m) and within 5 miles (8 km) of high and medium
flow anadromous fish streams.
(2) Primary prey species consisting of four species of Pacific
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific
cod, walleye pollock, saffron cod, and yellowfin sole.
(3) Waters free of toxins or other agents of a type and amount
harmful to Cook Inlet beluga whales.
(4) Unrestricted passage within or between the critical habitat
areas.
(5) Waters with in-water noise below levels resulting in the
abandonment of critical habitat areas by Cook Inlet beluga whales.
One or more of these features is found or identified within the
designated critical habitat.
Special Management Considerations or Protection
An occupied area may be designated as critical habitat only if it
contains
[[Page 20204]]
physical and biological features that ``may require special management
considerations or protection.'' It is important to note the term ``may
require special management considerations or protection'' refers to the
physical or biological features, rather than the area proposed as
critical habitat. Neither the ESA nor NMFS regulations define the ``may
require'' standard. We interpret it to mean that a feature may
presently or in the future require special management considerations or
protection. 50 CFR 424.02(j) defines ``special management
considerations or protection'' to mean ``any methods or procedures
useful in protecting physical and biological features of the
environment for the conservation of listed species.'' We considered
whether the PCEs indentified for Cook Inlet beluga whales may require
special management considerations or protection. In our initial
determination, we considered whether there is:
(a) Presently a negative impact on the feature(s);
(b) A possible negative impact on the feature in the future;
(c) Presently a need to manage the feature(s); or
(d) A possible need to manage the feature(s) in the future.
Intertidal and subtidal waters of Cook Inlet with depths less than
30 feet (MLLW)(9.1 m) and within 5 miles (8 km) of high and medium flow
anadromous fish streams support important beluga feeding habitat
because of their shallow depths and bottom structure which act to
concentrate prey and aid in feeding efficiency by belugas. The physical
attributes of this PCE could be modified or lost through filling,
dredging, channel re-alignment, dikes, and other structures. Within
navigable waters, the ACOE has jurisdiction over these actions and
structures and administers a permit program under the Rivers and
Harbors Act and CWA. In establishing these laws, it was the intent of
the U.S. Congress to regulate and manage these activities. The CWA was
created to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. Section 404 of the CWA regulates the
discharge of fill materials into these waters, noting concerns with
regard to water supplies, shellfish beds, fishery areas, and spawning
and breeding areas. The intent of Congress to protect these features
indicates that they may require special management considerations or
protection. Further, through the ESA section 7 consultation process, we
may identify reasonable and prudent measures to minimize impacts to
these features.
Four species of Pacific salmon (Chinook, sockeye, chum, and coho),
Pacific eulachon, Pacific cod, walleye pollock, saffron cod, and
yellowfin sole constitute the most important food sources for Cook
Inlet beluga whales as identified through research and as held by the
traditional wisdom and knowledge of Alaska Natives who have
participated in the subsistence hunting of these whales. Stomach
analysis of Cook Inlet beluga whales has found these species constitute
the majority of consumed prey by weight during summer/ice free periods.
All of these species are targeted by commercial fisheries, and some are
prized by sport fishermen. The recognition of harm due to
overexploitation and the need for continued management underlie the
efforts of the state and Federal government to conserve these species.
The fisheries in State waters of Cook Inlet are managed under various
management plans. In addition to commercial fisheries, State plans
manage subsistence, sport, guided sport, and personal use fisheries.
Federal fisheries management plans provide for sustainable fishing in
Federal waters of lower Cook Inlet. These regulatory efforts indicate
that these four fish species may require special management
considerations or protection.
Cook Inlet is the most populated and industrialized region of the
state. Its waters receive various pollutant loads through activities
that include urban runoff, oil and gas activities (e.g., discharges of
drilling muds and cuttings, production waters, treated sewage effluent
discharge, deck drainage), municipal sewage treatment effluents, oil
and other chemical spills, fish processing, and other regulated
discharges. The EPA regulates many of these pollutants, and may
authorize certain discharges under their National Pollution Discharge
Elimination System (section 402 of the CWA). Management of pollutants
and toxins is necessary to protect and maintain the biological,
ecological, and aesthetic integrity of Cook Inlet's waters.
Accordingly, ensuring the absence of toxins or other agents of a type
or amount harmful to beluga whales may require special management
considerations or protection.
Certain actions may have the effect of reducing or preventing
beluga whales from freely accessing the habitat area necessary for
their survival. Dams and causeways may create physical barriers, while
noise and other disturbance or harassment might cause a behavior
barrier, whereby the whales reach these areas with difficulty or, in a
worst case, abandon the affected habitat areas altogether due to such
stressors. Most in-water structures would be managed under several on-
going Federal regulatory programs (e.g., CWA). Regulation for behavior
barriers is less clear. Any significant behavioral reaction with the
potential to injure whales may be prohibited under the provisions of
the ESA and MMPA. However, it is unclear whether these two acts could
manage this proposed feature in the absence of designation of critical
habitat and recognition of this PCE. The unrestricted passage within or
between critical habitat areas may require special management
considerations or protection.
We have discussed the importance of sound to beluga whales, and
concern for man-made noise in their environment. There exists a large
body of information on the effects of noise on beluga whales. Research
on captive animals has found noise levels that result in temporary
threshold shifts in beluga whale hearing. Based on this research and
empirical data from beluga whales in the wild, we have established in-
water noise levels that define when these animals are harassed or
injured. We consider the threshold for acoustic harassment to be 160 dB
re: 1 [mu]Pa for impulsive sounds (e.g., pile driving) and 120 dB re: 1
[mu]Pa for continuous noise.
No specific mechanisms presently exist to regulate in-water noise,
other than secondarily through an associated authorization. Even then,
there is some question whether the authorizing state, local, or Federal
agency has the authority to regulate noise. Because of the importance
of the ability to use sound to Cook Inlet beluga whales, the in-water
noise essential feature is clearly one that may require special
management considerations or protection.
While these PCEs are currently subject to the aforementioned
regulatory management, there remain additional and unmet management
needs owing to the fact that none of these management regimes is
directed at the conservation and recovery needs of Cook Inlet beluga
whales. As a result, through the ESA section 7 consultation process, we
may identify reasonable and prudent measures designed to minimize
impacts to the PCEs. This supports the finding that each of the
identified PCEs ``may require special management considerations or
protection.''
Specific Areas Within the Geographical Area Occupied by the Species
We previously identified the range of Cook Inlet belugas as of the
time of listing (74 FR 63080; December 2, 2009)
[[Page 20205]]
to be waters of Cook Inlet north of a line from Cape Douglas to Cape
Elizabeth. We reviewed all available information on Cook Inlet beluga
whale distribution, habitat use and requirements, and features
essential to the conservation of these whales. Within the occupied
geographical area we identified two specific areas that contain
essential physical or biological features (Areas 1 and 2).
Area 1: Area 1 encompasses 1,909 square kilometers (738 sq. mi.) of
Cook Inlet northeast of a line from the mouth of Threemile Creek to
Point Possession. This area is bounded by the Municipality of
Anchorage, the Matanuska-Susitna Borough, and the Kenai Peninsula
borough. The area contains shallow tidal flats and river mouths or
estuarine areas, and it is important as foraging and calving habitats.
Mudflats and shallow areas adjacent to medium and high flow
accumulation streams may also provide for other biological needs, such
as molting or escape from predators (Shelden et al., 2003). Area 1 also
has the highest concentrations of beluga whales from spring through
fall as well as the greatest potential for adverse impact from
anthropogenic threats.
Many rivers in Area 1 habitat have large eulachon and salmon runs.
Two such rivers in Turnagain Arm, Twenty-mile River, and Placer River
are visited by beluga whales in early spring, indicating the importance
of eulachon runs for beluga whale feeding. Beluga whale use of upper
Turnagain Arm decreases in the summer and then increases again in
August through the fall, coinciding with the coho salmon run. Early
spring (March to May) and fall (August to October) use of Knik Arm is
confirmed by studies by Funk et al. (2005). Intensive summer feeding by
beluga whales occurs in the Susitna delta area, Knik Arm, and Turnagain
Arm.
Whales regularly move into and out of Knik Arm and the Susitna
delta (Hobbs et al., 2000; Rugh et al., 2004). The combination of
satellite telemetry data and long-term aerial survey data demonstrate
beluga whales use Knik Arm 12 months of the year, often entering and
leaving the Arm on a daily basis (Hobbs et al., 2005; Rugh et al.,
2005, 2007). These surveys demonstrate intensive use of the Susitna
delta area (from the Little Susitna River to Beluga River) and
Chickaloon Bay (Turnagain Arm), with frequent large scale movements
between the delta area, Knik Arm, and Turnagain Arm. During annual
aerial surveys conducted by the National Marine Mammal Lab in June and
July, up to 61 percent of the whales sighted in Cook Inlet were in Knik
Arm (Rugh et al., 2000, 2005). The Chickaloon Bay area also appears to
be used by beluga whales throughout the year.
Beluga whales are particularly vulnerable to impacts in Area 1 due
to their high seasonal densities and the biological importance of the
area. Because of their intensive use of this area (e.g., foraging,
nursery, predator avoidance), activities that restrict or deter use of
or access to Area 1 habitat could reduce beluga whale calving success,
impair their ability to secure prey, and increase their susceptibility
to predation by killer whales. Activities that reduce anadromous fish
runs could also negatively impact beluga whale foraging success,
reducing their fitness, survival, and recovery. Furthermore, the
tendency for beluga whales to occur in high concentrations in Area 1
habitat predisposes them to harm from such events as oil spills.
Area 2: Area 2 consists of 5,891 square kilometers (2,275 square
miles) of less concentrated spring and summer beluga whale use, but
known fall and winter use areas. It is located south of Area 1, and
includes nearshore areas along the west side of the Inlet and Kachemak
Bay on the east side of the lower inlet.
Area 2 is largely based on dispersed fall and winter feeding and
transit areas in waters where whales typically occur in smaller
densities or deeper waters. It includes both near and offshore areas of
the mid and upper Inlet, and nearshore areas of the lower Inlet. Due to
the role of this area as probable fall feeding areas, Area 2 includes
Tuxedni, Chinitna, and Kamishak Bays on the west coast and a portion of
Kachemak Bay on the east coast. Winter aerial surveys (Hansen, 1999)
sighted belugas from the forelands south, with many observations around
Kalgin Island. Based on tracking data, Hobbs et al. (2005) document
important winter habitat concentration areas reaching south of Kalgin
Island.
Beluga whales have been regularly sighted at the Homer Spit and the
head of Kachemak Bay, appearing during spring and fall of some years in
groups of 10 to 20 individuals (Speckman and Piatt, 2000). Beluga
whales have also been common at Fox River Flats, Muddy Bay, and the
northwest shore of Kachemak Bay (NMFS unpubl. data), sometimes
remaining in Kachemak Bay all summer (Huntington, 2000).
Deeper mid Inlet habitats may also be important to the winter
survival and recovery of Cook Inlet beluga whales.
Unoccupied Areas
Section 3(5)(A)(ii) of the ESA defines critical habitat to include
specific areas outside the geographical area occupied by the species at
the time of listing 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 50 CFR 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 are not including unoccupied
areas because there is no information available indicating that any
such area may be essential to the conservation of the species.
Activities That May Be Affected
Section 4(b)(8) of the ESA requires that we describe briefly and
evaluate, in any proposed or final regulation to designate critical
habitat, those activities that may destroy or adversely modify such
habitat, or that may be affected by such designation. A wide variety of
activities may affect critical habitat and, when carried out, funded,
or authorized by a Federal agency, require consultation under section 7
of the ESA. These same activities may also be affected by the
designation. Such activities include: Coastal development; pollutant
discharge; navigational projects (dredging); bridge construction;
marine tidal generation projects; marine geophysical research; oil and
gas exploration, development, and production; DOD activities; and
hydroelectric development. We do not propose to include in critical
habitat any manmade structures and the land on which they rest within
the described boundaries that were in existence at the time of
designation. While these areas would not be directly affected by
designation, they may be affected if a Federal action associated with
the area/structure (e.g., a discharge permit from the EPA) might have
indirect impacts to critical habitat.
We assessed those actions that may destroy or adversely modify this
critical habitat by considering recent agency guidance on conducting
adverse modification analyses. Here we apply the statutory provisions
of the ESA, including those in section 3 that define ``critical
habitat'' and ``conservation,'' to
[[Page 20206]]
determine whether a proposed action might result in the destruction or
adverse modification of critical habitat. We have not relied on the
regulatory definition of ``destruction or adverse modification'' at 50
CFR 402.02 because that definition has been struck down by courts. See
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059
(9th Cir. 2004). As discussed in our economic report on this
designation, each action is reviewed on a case-by-case basis. Without
knowledge of, or ability to predict, the specifics of a particular
action or activity, it is not possible to list all those that may
adversely modify critical habitat. Depending on the specific details of
any action, any of the aforementioned activities that may affect
critical habitat might also result in its adverse modification.
ESA Section 4(a)(3)(B)(i) Analysis
The ESA was amended by the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. 108-136) to address the designation of
military lands as critical habitat. ESA section 4(a)(3)(B)(i) states:
``The Secretary shall not designate as critical habitat any lands or
other geographical areas owned or controlled by the DOD, or designated
for its use, that are subject to an integrated natural resources
management plan prepared under section 670a of this title [section 101
of the Sikes Act], if the Secretary determines in writing that such
plan provides a benefit to the species for which critical habitat is
proposed for designation.''
The Eagle River Flats Impact Area (ERFIA), a military live-fire
practice range on Joint Base Elmendorf-Richardson, near Anchorage,
provides training in artillery such as mortars. While the boundaries
for the ERFIA (i.e., the MHHW line) do not overlap with the proposed
critical habitat, the firing range includes the lower reaches of Eagle
River which could have been included in the designation (similar to the
Susitna and Little Susitna Rivers). Research by the DOD has documented
beluga whale use, including feeding behavior, within this portion of
Eagle River. Having consulted with the U.S. Army Garrison, Alaska, and
reviewed its 2007-2011 INRMP, we have determined and set forth in
writing here that the plan provides benefit to the Cook Inlet beluga
whale. The INRMP establishes coordination and consultation mechanisms
with NMFS on issues which may affect Cook Inlet beluga whales, and
provides specific means to reduce potential harm due to military
actions on the garrison. Some of these benefits include restrictions on
access to habitat areas utilized by beluga whales, mitigation measures
to reduce potential harassment or injury to beluga whales from activity
at the ERFIA, and implementation of research programs regarding the
habitat use of Cook Inlet belugas in and adjacent to DOD property at
Joint Base Elmendorf-Richardson, Alaska. For the foregoing reasons, we
have determined pursuant to section 4(a)(3)(B)(i) that the beluga
habitat areas occurring here (specifically; within the ERFIA) do not
qualify as critical habitat.
In response to the ANPR, we received a request from the U.S. Air
Force to exempt other portions of Joint Base Elmendorf-Richardson from
the designated critical habitat. The Air Force sought this exemption
based on the existence of an INRMP, consistent with Public Law 108-136.
The landward boundary of critical habitat (MHHW) would overlay the
seaward military boundaries for Joint Base Elmendorf-Richardson, which
have been established as MHW. Because the areas between MHHW and MHW
are predominately unvegetated mudflats at relatively high elevations
(or shallow depths) rarely used by beluga whales, and because all lands
of Joint Base Elmendorf-Richardson are administered under an INRMP
which we found to provide benefit to Cook Inlet beluga whales, these
areas were also determined to be ineligible for designation as critical
habitat.
ESA Section 4(b)(2) Analysis
Section 4(b)(2) of the ESA states that the Secretary must designate
and revise critical habitat on the basis of the best scientific data
available after taking into consideration the economic impact, the
impact on national security, and other relevant impacts of specifying
any particular area as critical habitat. The Secretary of Commerce may
exclude an area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as critical habitat, unless he determines that failure to
designate that area would result in the extinction of the species. In
making that determination, the legislative history is clear that the
Secretary has broad discretion regarding which factors to use and how
much weight to give any factor. Because the authority to exclude is
discretionary, exclusion is not required for any area. The section
4(b)(2) considerations are more fully described in the proposed rule.
In the following sections, we address the issues relevant to our
determinations under this section.
Economic Analysis
We conducted an analysis of the economic impacts of the proposed
designation of critical habitat for the Cook Inlet beluga whale, under
the mandates of the ESA, Executive Order 12866, Regulatory Flexibility
Act, and other applicable law. Each prescribes the analytical frame-of-
reference, methodology, interpretive context, and threshold criteria
that must be adhered to. These include, but are not limited to, a
national accounting stance, use of traditional cost/benefit analytical
techniques, emphasis on changes in domestic surplus measures, whether
and how impacts accrue to, and distribute across, specific populations
of concern (e.g., small entities, minority communities, tribal
authorities). The economic analyses were further required to (and, to
the fullest extent practicable, do) employ the best scientific data and
commercial information available. The analyses underwent a series of
systematic technical reviews by agency scientists, attorneys, and
administrators, resulting in significant revisions and refinements,
both prior to, and after formal public presentation and comment
periods. The draft analysis report was made available for public review
and comment on our regional Web site. Substantive comments and
information received on the analysis are summarized above and are
incorporated into the final 4(b)(2) analysis, as appropriate. Taking
into account all new and relevant information, we have completed a
final economic analysis. That analysis is also available on our Web
site (see ADDRESSES above). NMFS considered the conservation benefits
to the Cook Inlet beluga whale of designating two areas; the economic
benefits of excluding particular areas within the two areas; and the
national security benefits of excluding particular military sites and
associated assets owned, heavily utilized, highly depended upon, or
controlled by the DOD; and other relevant impacts or benefits, such as
impacts to tribal interests, raised through the public comment process.
Benefits of Designation
The primary benefit of designating critical habitat for any
endangered species is that, upon designation, section 7 of the ESA
requires all Federal agencies to ensure actions they authorize, fund,
or undertake are not likely to destroy or adversely modify habitat
critical for the conservation and recovery of the listed species. This
is in addition to the ESA's requirement that all Federal agencies
ensure their actions
[[Page 20207]]
are not likely to jeopardize the species' continued existence. Another
benefit of designation is that it provides notice of areas, PCEs, and
features important to species conservation, and information about the
types of activities that may reduce the conservation value of the
habitat. Such notice will focus future consultations on key habitat
attributes and avoid unnecessary attention to other, non-essential
habitat features.
Critical habitat designation may also trigger complementary
protections (i.e., benefits) under state or local regulations. In
addition to the direct benefits of critical habitat designation
accruing to Cook Inlet beluga whales, there are indirect benefits.
These benefits may be economic in nature (whether market or non-market,
consumptive, non-consumptive, or passive), educational, cultural, and
sociological, or they may be expressed through beneficial changes in
the ecological functioning and service flows of Cook Inlet, which
themselves yield ancillary welfare gains (e.g., improved quality of
life) to the region's human population.
All these benefits are also relevant to the evaluation of the ``net
benefit to the Nation'' attributable to critical habitat designation
for the Cook Inlet beluga whale. For example, Cook Inlet is one of the
``premier tourist destinations'' in Alaska, and local economies
throughout the inlet and surrounding region provide support services
to, and benefit directly from, tourism. Beluga whales are widely
identified with Cook Inlet and aggressively promoted as a ``unique''
and high value component of the Cook Inlet tourism experience. In
addition, many local residents express strong affinity for the beluga
whales and place significant ``value'' on the opportunity to encounter
this whale in the wild. Federal, state, regional and local governments,
Alaska Native peoples, civic groups, non-governmental organizations,
and private citizens in the region have invested considerable money,
time, and effort to promote, educate, inform, and advocate for the Cook
Inlet beluga whale population (e.g., roadside visitor's centers and
interpretive sights focusing public attention on, and enjoyment of, the
resident beluga whale population). It follows that conservation and
recovery of the Cook Inlet beluga whale population, resulting, in part,
from designation of its critical habitat, would enhance the ``value''
tourists (and other travelers) to the inlet receive from visiting the
region, and simultaneously benefit the tourism, hospitality, and
affiliated services sectors.
Residents of Cook Inlet communities and surrounding areas who value
the beluga whale would also be expected to experience a welfare gain,
as conservation of the whale's critical habitat results in an enhanced
beluga whale population, in turn, making opportunities for sightings
and observation more probable and frequent. With sufficient recovery,
subsistence users could benefit from the restoration of their
traditional uses of Cook Inlet beluga whales. Another benefit of
designation could be the increased abundance and sustained viability of
Cook Inlet salmon populations, if the environmental and ecological
functions of the inlet upon which they depend are sustained or enhanced
by beluga whale critical habitat designation.
Cook Inlet salmon runs support a myriad of uses and users,
including: commercial fisheries and associated support sectors;
recreational anglers, guides, lodges and lodging, transportation,
support and affiliated businesses; subsistence communities; and
personal use fishermen. Salmon constitute a critical resource for non-
human users, as well. Four of the five Pacific salmon species native to
the region are listed as PCEs of Cook Inlet beluga whale critical
habitat. At various life stages, salmon support many other marine and
terrestrial organisms (i.e., mammals, birds, and fishes) as prey
species. Ancillary benefits from Cook Inlet beluga whale critical
habitat designation may accrue through protection and enhancement of
vital components and characteristics of the critical habitat relied
upon and exploited by a vast array of species.
It is not presently feasible to monetize, or even quantify, each
and every component part of the comprehensive benefit accruing from
designation of critical habitat for the Cook Inlet beluga whale. We
augmented the quantitative measurements that have been presented with
qualitative and descriptive assessment techniques, as provided for in
Executive Order 12866 and OMB Circular A-4.
With respect to the qualitative elements of this impact analysis,
we have systematically assessed the expected benefit of designating the
two critical habitat areas based upon their individual physical,
ecological, and biological features and functions. Each area was
evaluated on the basis of frequency, duration, seasonality, and
behavioral characteristics (e.g., foraging, predatory avoidance,
breeding, calving) of use by the beluga whales. These were (to the
extent practicable) correlated with site-specific human activity
mappings in each area that, through an assumed need for Federal
authorization, permits, or funding, might require one or more future
ESA section 7 consultations stemming from this critical habitat
designation. Based upon available information pertaining to specific
structural design elements, physical attributes, construction materials
and techniques, development scheduling and duration, etc., for each
such identified federally authorized activity, the likelihood and
nature of any substantial physical, design, or schedule modification
(or other accommodation) of an anticipated Federally authorized
activity were analyzed.
The benefit of a comprehensive designation also depends on the
inherent conservation value arising from the complementary contribution
each area makes to the whole. The two identified critical habitat areas
for the Cook Inlet beluga whales are unique and irreplaceable. It is
difficult to isolate the value contributed by one area, as each of the
two areas supports a distinct and crucial aspect of the Cook Inlet
beluga whales' life history. The designation of each particular area
(i.e., Area 1 and Area 2) is essential to the conservation function of
the whole. On the collective basis of these assessments, evaluations,
and analyses, we conclude that there is substantial and compelling
evidence that the aggregate (i.e., monetized, quantifiable, and
qualitative) conservation benefits of designating the two particular
areas identified as critical habitat for Cook Inlet beluga whales is
high. By contrast, the expected costs, including those we could
monetize, as well as those that can only be qualitatively characterized
at this time, such as unspecified design modifications to potential
projects, are relatively modest in comparison. Based on past experience
and our professional judgment, we expect design modifications
attributable solely to the designation of critical habitat will occur
rarely. In the event that such a modification was to occur, it could
require substantial costs, but it is also possible that the
modification would decrease overall project costs. There is no
information available at this time to provide any reasonable estimate
of costs for the rare and speculative project modifications
attributable solely to the designation of critical habitat.
Economic Benefits of Exclusion
The economic impact analysis and preparatory 4(b)(2) assessment,
prepared in connection with the designation of critical habitat,
describe: the actions and activities within Cook Inlet that we estimate
have some potential to be
[[Page 20208]]
impacted by the designation; the potential nature of modifications that
might be required to avoid adversely modifying or destroying critical
habitat; and the expected economic impacts that may accompany such
modifications.
Consideration of Benefits of Exclusion Versus Benefits of Designation
of Particular Areas
After directing NMFS to consider the economic impact, the impact to
national security, and other relevant impacts of specifying a
particular area as critical habitat, section 4(b)(2) of the ESA
provides that the Secretary may exclude any area from critical habitat
if he determines that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat,
unless such exclusion will result in the extinction of the species. The
benefit to the species of designation depends upon the inherent
conservation value of the area, the seriousness of the threats to that
conservation value, and the extent to which an ESA section 7
consultation or other aspects of designation will ameliorate those
threats. If a particular action or activity, which is authorized,
funded, or carried out by the Federal Government, may destroy or
adverse modify critical habitat (as distinct from the ``jeopardy''
prohibition under section 7), one may isolate and measure the
incremental benefit of designation, beyond those protections also
provided by virtue of the listing.
We have endeavored to identify the categories of actions and
activities within each of the two proposed designated areas that may
have the potential to destroy or adversely modify critical habitat.
Based upon these categorical lists, the analysis has, to the extent
possible in light of the best scientific data and commercial
information available, identified and analyzed project-specific impacts
attributable to the proposed designation. With a few notable exceptions
identified in the analyses, detailed engineering design, construction
methods, materials, and schedules, and financing/investment/cost
information are not readily available on a project-by-project basis,
particularly for plans that are far off into the future.
Notwithstanding these empirical data limitations, we have
systematically and objectively evaluated the likely economic impact to
future development and use uniquely attributable to the beluga whale
critical habitat designation in Cook Inlet.
We have determined that designation of critical habitat will
enhance the nation's welfare by augmenting the Federal Government's
ability to conserve this endangered species and ensuring Federal
actions do not destroy or adversely modify habitat critical to that
end. This outcome would be facilitated through ESA section 7
consultations and through ongoing public involvement, outreach,
information, and education.
The benefits of exclusion of any particular area, as contemplated
under section 4(b)(2), involve many of the same considerations
identified in assessing the benefits of designation. Among these would
be the likelihood or expectation of a Federal action occurring within
the particular area under scrutiny. Should such an action or activity
be identified, it could trigger one or more of the ESA section 7
consultation requirements. If any such consultation resulted in the
determination that the action would destroy or adversely modify
critical habitat (or jeopardize the continued existence of the
species), we would attempt to identify reasonable and prudent
alternatives that allow the project to go forward but avoid adverse
modification/jeopardy by changes to design, construction practices, or
scheduling. For the benefit-of-designation side of the equation, it is
the incremental cost of designation incurred (or, if exclusion of any
particular area is justified, the incremental cost avoided), uniquely
attributable to designation, that should, to the extent practicable, be
evaluated. By disentangling the sources of section 7 consultation
effects, we can more appropriately weigh those incremental costs of
designation, distinct from the cost associated with listing and the
jeopardy prohibition.
In balancing the potential costs of designation, we considered the
nature of the threats to critical habitat and the relevance to these
threats of ESA section 7's requirement that Federal actions avoid
causing the destruction or adverse modification of critical habitat.
Because in the present case the condition of adverse modification is
likely to be associated with certain work along the Cook Inlet
shoreline (and in-water construction and development), and because some
modifications to design, construction practices, or scheduling of such
projects are possible as a result of consultation, we gave these costs
of designation moderately high weight. Such construction and
development has the potential to alter several of the identified PCEs
of beluga whale habitat, including, but not limited to, in-water noise
levels, access to passage corridors, and access to shallow areas for
feeding, breeding, or predator escape use. Further, we recognize that
the adverse modification/destruction of critical habitat criterion
bears a strong relationship to water quality management (e.g.,
municipal waste water discharge, oil spills, gas and oil drilling
discharges, dredge spoils disposal, bilge and ballast discharges), but
we lack sufficient point-source and project-specific data to
quantitatively estimate any potential attributable economic impact.
Nonetheless, we recognize their significance and qualitatively assigned
these costs of critical habitat designation a moderate weight.
However, our analysis found few cases where these costs were not
co-extensive. We evaluated these incremental costs (i.e., costs beyond
those associated with the jeopardy standard), and concluded that the
economic benefits of excluding any particular area do not outweigh the
conservation benefits of including each particular area within the
critical habitat designation, given the endangered status of the
whales, the uniqueness and irreplaceable attributes of the habitat, and
the fact that designation will enhance the ability of an ESA section 7
consultation to facilitate cost effective and successful protection of
this critical habitat.
Exclusion for National Security Reasons
We received a request from the Port of Anchorage to exclude both
the Port of Anchorage and Port MacKenzie from critical habitat
designation based on national security considerations. While the DOD
itself did not make a request to exclude the POA, DOD has designated
the POA as one of nineteen Strategic Ports, which forms the basis for
our exclusion. NMFS conferred with the Alaska Command after the request
from the POA for the exclusion and the Alaska Command confirmed that
the POA is a strategic port that could be excluded from critical
habitat designation. Both the Port of Anchorage and Port MacKenzie are
within the boundaries we proposed for critical habitat designation and
include docking facilities, nearshore areas and structures such as
docks, piers, and wharfs, and offshore navigational channels, turning
basins, anchorage areas, and areas with security restrictions enforced
by the U.S. Coast Guard (USCG).
In making its request for an exclusion, the POA asserts that it is
strategically important for military readiness. The DOD did not request
the exclusion of the POA, but confirmed, through the Alaskan Command,
that the U.S. Army's worldwide deployments from Alaska go through the
POA, and that since 2005, over 18,000 pieces of military-related
[[Page 20209]]
cargo-combat vehicles, weaponry, and support equipment have passed
through the POA on their way to and from the Middle East and training
grounds in the Lower 48 and the Western Pacific.
In addition, the POA is one of nineteen ports designated by the DOD
as a Strategic Port. There are four military bases located in Alaska
(Joint Base Elmendorf-Richardson, Eielson AFB, Ft. Wainwright, and Ft.
Greely), and the POA supports the U.S. military in Alaska as its
primary source of daily operating supplies. Over 33 million gallons of
aviation fuel for the military are offloaded annually at this port.
Thus the U.S. military's ability to deploy to combat theaters
around the globe is heavily dependent on sealift through the POA.
Particularly in times of active warfare, it is critical that there be
no unnecessary delays in deployment or reductions in military
readiness. In short, the POA plays a vitally important role in ensuring
the readiness of military operations in Alaska.
We have conferred with the Alaskan Command and conclude that the
benefits of exclusion outweigh the benefits of inclusion. The principal
benefit from excluding the POA is avoiding the risk that the
designation might impede the POA's operations or otherwise result in a
reduction in military readiness. The costs of including the area as
critical habitat generally include the costs (including delays)
associated with ESA section 7 consultation under the destruction/
adverse modification of critical habitat standard, any change in the
POA's activities or functions necessary to avoid adverse modification
or destruction of critical habitat, and any concomitant reduction in
military readiness. Given that the DOD has stated the POA is critical
to military operations in and deploying out of the State of Alaska, any
delays in military movements through the POA could reduce the ability
of the military to ensure national security.
By contrast, we believe the benefits to the conservation of the
Cook Inlet beluga whale from designating the particular area subject to
the exclusion as critical habitat are small. Even with the exclusion,
Federal agencies would still have to consult to ensure that their
activities do not jeopardize the continued existence of the Cook Inlet
beluga whale, which would include any direct, indirect, or cumulative
effects of the action on critical habitat adjacent to the excluded
area. Moreover, any Federal actions at the POA that may adversely
affect or destroy critical habitat areas not excluded by this rule
would remain subject to all of section 7's consultation requirements.
Therefore, most of the conservation benefits will accrue despite the
exclusion.
In assessing the impacts of this critical habitat designation on
national security, we considered the following factors: (1) The size of
the particular area requested for exclusion relative to the area
proposed for critical habitat designation; (2) the likelihood of a
consultation with the DOD, or of a consultation having direct impact on
DOD in this area; (3) the intensity of use of the area by the DOD; (4)
the likelihood that DOD activities would destroy or adversely modify
the critical habitat; (5) the level of protection provided to one or
more PCEs by existing DOD safeguards, and (6) the likelihood that other
Federal actions may occur in the particular area that would no longer
be subject to the critical habitat provisions if the area were excluded
from designation.
Factors 1, 3, 4, and 6 weigh in favor of the exclusion. The area
excluded is very small in contrast to the area included--less than 1
percent of the habitat proposed for designation in Cook Inlet. It
appears unlikely that most DOD activities associated with the POA would
require consultation on critical habitat because cargo loading and ship
movement should not affect that habitat or the identified essential
features. There appears little probability that DOD activities here
would be likely to destroy or adversely modify critical habitat.
Finally, there are no other Federal actions expected to occur that
would no longer be subject to the critical habitat provisions if the
area were excluded from designation. As for the remaining factors,
factor 2 is neutral, and factor 5 weighs against granting the exclusion
since we are unaware of any existing protections provided by DOD to the
PCEs within the excluded area.
We also considered the high priority placed on national security,
the potential for designation of critical habitat to impact military
readiness, and the total habitat value represented by this area. Based
on our assessment of these considerations, we conclude that benefits to
national security of exclusion outweigh the conservation benefits of
inclusion. We, therefore, are not designating the POA, nor its
immediately adjacent offshore operational area, as critical habitat.
See Figure 1 for the specific areas and excluded area.
While the POA exclusion area contains some of the essential
features of this critical habitat, those features exist throughout the
designated habitat and are not unique to the POA area. The area of the
POA is less than 1 percent of the available habitat within Cook Inlet,
and its exclusion would not be likely to result in the extinction of
this DPS.
Port MacKenzie is not listed as a Strategic Port, nor is it
currently adjacent to military lands, accessible by a major road
system, utilized for munitions transfers, or serviced by rail. We
received no supporting recommendations for this exemption from the DOD,
and did not find substantial evidence of impacts to national security
because of Port MacKenzie's inclusion as critical habitat. In light of
the conservation benefits described in this rulemaking from its
inclusion, we decline to exercise our discretion to exclude Port
MacKenzie from the critical habitat designation.
Conclusions
With one exception, we conclude that the benefits from excluding
any and each particular area do not outweigh the benefits of
designation as critical habitat, upon consideration of: (1) The
functional role of critical habitat and its essential features in the
conservation of Cook Inlet beluga whales; (2) the benefits of
designation to Cook Inlet beluga whales in terms of enhanced ability to
protect or conserve this habitat under ESA consultation; and (3) the
economic costs borne by any and each particular area's inclusion. We
conclude that, based on consideration of the impact to national
security, the benefits from excluding the POA from the critical habitat
designation outweigh those for its inclusion, and we have determined
not to designate this particular area as critical habitat for the Cook
Inlet beluga whale.
Critical Habitat Designation
This final rule will designate as critical habitat for the Cook
Inlet beluga whale 7,800 square kilometers (3,013 square miles) of
marine and estuarine area in Cook Inlet, Alaska, within the
geographical area occupied by this species. In determining this
critical habitat, we considered comments received in response to the
Advance Notice of Proposed Rulemaking (74 FR 17131; April 14, 2009),
the proposed rule (74FR 63080; December 2, 2009), peer review, public
hearings; sighting reports, satellite telemetry data, TEK, scientific
papers and other research; the biology and ecology of the Cook Inlet
DPS of beluga whales; and information indicating the presence of one or
more of the identified PCEs within certain areas of their range. We
designate
[[Page 20210]]
critical habitat within two areas of Cook Inlet.
The designated critical habitat does not include two areas for
which the military has provided an INRMP that we have determined
provides benefits to the Cook Inlet beluga whale pursuant to section
4(a)(3)(B)(i) of the ESA: (1) The Eagle River Flats Range on Fort
Richardson; and (2) military lands of Joint Base Elmendorf-Richardson
between Mean Higher High Water and Mean High Water. In addition, we
have determined that the benefits of excluding the Port of Anchorage
and adjacent navigation channel and turning basin outweigh the benefits
of including it because of national security reasons, and excluding
these areas will not result in the extinction of the Cook Inlet beluga
whale. We are not designating any unoccupied geographical areas as
critical habitat.
Classification
Regulatory Planning and Review (Executive Order 12866)
This final rule has been determined to be significant for purposes
of E.O. 12866. The economic benefits and costs of this critical habitat
designation are described in our economic report supporting this
rulemaking.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, whenever an agency is required to publish a notice of proposed
rulemaking for any proposed rule, it must either certify that the
action is not likely to result in significant adverse economic impacts
on a substantial number of small entities; or it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
We have prepared a final regulatory flexibility analysis (FRFA), as
part of our economic analysis. Responses to comments on this document
are provided above in the preamble to the rule, and any necessary
changes were made to the FRFA.
The reasons for the action, a statement of the objectives of the
action, and the legal basis for the final rule are discussed earlier in
the preamble. A summary of the analysis follows.
The small entities that may be directly regulated by this action
are those that seek formal approval (e.g., a permit) from, or are
otherwise authorized by, a Federal agency to undertake an action or
activity that ``may affect'' critical habitat for the Cook Inlet beluga
whale. Submission by a small entity of such a request for a Federal
agency's approval would require that agency (i.e., the ``action
agency'') to consult with NMFS (i.e., the ``consulting agency'').
Consultations vary from simple to highly complex, depending on the
specific facts of each action or activity for which application is
made. Attributable costs are directly proportionate to complexity. In
the majority of instances projected to take place under this critical
habitat designation, these costs are expected to accrue solely to the
Federal agencies that are party to the consultation. In only the most
complex formal consultations, a private sector applicant might incur
costs directly attributable to the designation consultation process.
For example, if the formal consultation concludes that the proposed
activity is likely to destroy or adversely modify critical habitat, the
applicant will have to implement modifications to avoid such effects.
These modifications have the potential to result in adverse economic
impacts, although they need not necessarily do so.
An examination of the Federal agencies with management,
enforcement, or other regulatory authority over activities or actions
within, or immediately adjacent to, the designated critical habitat
area, resulted in the following list: The ACOE, EPA, Minerals
Management Service (MMS), Maritime Administration (MARAD), USCG, DOD,
NMFS, Federal Highway Administration (FHWA), Federal Energy Regulatory
Commission (FERC), and Federal Aviation Administration (FAA).
Activities or actions that require Federal authorization, permits, or
funding, and which may be expected to require some level of
consultation, include: COE permits for structures and work in waters of
the United States; EPA permitting of discharges under the National
Pollutant Discharge Elimination System; MMS oil and gas exploration and
production permitting in Federal waters of Cook Inlet; MARAD permits
for the POA expansion; USCG permits for spill response plans; DOD
activities at Joint Base Elmendorf-Richardson facilities; NMFS
authorizations of commercial fisheries, and review of subsistence
harvest allowances; FHWA funding of highway and bridge improvements
along Turnagain Arm; FERC permits for turbine electrical generation
projects (wind and tidal); and FAA permitting of regional airport
expansions and development.
A 10-year ``post-critical habitat designation'' analytical horizon
was adopted, during which time NMFS may reasonably expect to consult on
critical habitat-related actions with one or more of the action
agencies identified above. The majority of the consultations are
expected to be ``informal'' (we estimate 90 percent of all
consultations would be informal). In each of these, no adverse impacts
would accrue to the entity or applicant requesting Federal action. The
more complex and costly formal consultations are projected to account
for, perhaps, ten percent. Here, NMFS and the Federal action agency may
develop alternatives that prevent the likelihood that critical habitat
will be destroyed or adversely affected. The extent to which these
formal consultations will result in more than de minimus third party
costs, as well as whether such third parties constitute small entities
for Regulatory Flexibility Act purposes, cannot be predicted. Often, no
consultation will be necessary, as all questions can be resolved
through the ``technical assistance'' process.
We lack sufficient information to estimate precisely the number of
consultations that may result in a determination of destruction or
adverse modification to critical habitat. However, on the basis of the
underlying biological, oceanographic, and ecological science used to
identify the PCEs that define critical habitat for the Cook Inlet
beluga whale, as well as the foregoing assumptions, empirical data,
historical information, and accumulated experience regarding human
activity in Cook Inlet, we believe that various federally authorized
activities have the potential to ``destroy or adversely modify'' Cook
Inlet beluga whale critical habitat. While we are unable to predict in
advance exactly which activities might result in the destruction or
adverse modification of the designated critical habitat, we note that
such activities are restricted to those actions impacting the
identified essential features, or PCEs. Importantly, however, an action
that may adversely affect a PCE is not necessarily one that will result
in the destruction or adverse modification of the proposed critical
habitat.
Executive Order 13211
On May 18, 2001, the President issued an E.O. on regulations that
significantly affect energy supply, distribution, and use. E.O. 13211
requires agencies to prepare Statements of Energy Effects when
undertaking any action that promulgates or is expected to lead to the
promulgation of a final rule or
[[Page 20211]]
regulation that (1) is a significant regulatory action under E.O. 12866
and (2) is likely to have a significant adverse effect on the supply,
distribution, or use of energy.
We have considered the potential impacts of this action on the
supply, distribution, or use of energy and finds the designation of
critical habitat will not have impacts that exceed the thresholds
identified above.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
(a) This final rule will not produce a Federal mandate. In general,
a Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that
``would impose an enforceable duty upon the private sector, except (i)
a condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.'' The designation of
critical habitat does not impose a legally binding duty on non-Federal
government entities or private parties. Under the ESA, the only
regulatory effect is that Federal agencies must ensure that their
actions do not destroy or adversely modify critical habitat under
section 7. While non-Federal entities who receive Federal funding,
assistance, permits or otherwise require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Furthermore, to the extent that non-Federal
entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
to State governments.
(b) Due to the prohibition against the take of this species both
within and outside of the designated areas, we do not anticipate that
this final rule will significantly or uniquely affect small
governments. As such, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630, the final rule does not have
significant takings implications. A takings implication assessment is
not required. The designation of critical habitat affects only Federal
agency actions. Private lands do not exist within the designated
critical habitat and therefore would not be affected by this action.
Federalism
In accordance with E.O. 13132, this final rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of Commerce policies, we have
requested information from, and will continue to coordinate this
critical habitat designation with appropriate state resource agencies
in Alaska. This designation may have some benefit to state and local
resource agencies in that the areas essential to the conservation of
the species are more clearly defined, and the PCEs of the habitat
necessary to the survival of Cook Inlet beluga whale are specifically
identified. While making this definition and identification does not
alter where and what federally sponsored activities may occur, it may
assist local governments in long-range planning (rather than waiting
for case-by-case ESA section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988, the Department of Commerce has
determined that this final rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order. We are designating critical habitat in accordance with the
provisions of the ESA. This final rule uses standard property
descriptions and identifies the PCEs within the designated areas to
assist the public in understanding the habitat needs of the Cook Inlet
beluga whale.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final rule does not contain new or revised information
collection for which the Office of Management and Budget (OMB) approval
is required under the Paperwork Reduction Act. This rule will not
impose recordkeeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. Notwithstanding
any other provision of the law, no person is required to respond to,
nor shall any person be subject to a penalty for failure to comply
with, a collection of information subject to the requirements of the
PRA, unless that collection of information displays a currently valid
OMB Control Number.
National Environmental Policy Act
NMFS has determined that an environmental analysis as provided for
under the National Environmental Policy Act of 1969 for critical
habitat designations made pursuant to the ESA is not required. See
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied,
116 S.Ct. 698 (1996).
Government-to-Government Relationship
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights. E.O.
13175--Consultation and Coordination with Indian Tribal Governments--
outlines the responsibilities of the Federal Government in matters
affecting tribal interests. Public Law 108-199 (2004), codified in
notes to 25 U.S.C. 450, requires all Federal agencies to consult with
Alaska Native corporations on the
[[Page 20212]]
same basis as Indian tribes under this Executive Order.
We have determined that designation of critical habitat for the
Cook Inlet beluga whale in Cook Inlet, Alaska, would not have tribal
implications, nor affect any tribal governments or Native corporations.
Although the Cook Inlet beluga whale may be hunted by Alaska Natives
for traditional use or subsistence purposes, none of the designated
critical habitat areas occurs on tribal lands, affects tribal trust
resources, or the exercise of tribal rights.
References Cited
A complete list of all references cited in this rulemaking can be
found on our Web site at http://www.fakr.noaa.gov/ and is available
upon request from the NMFS office in Juneau, Alaska (see ADDRESSES
section).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: April 1, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons stated in the preamble, we amend 50 CFR part 226 as
follows:
PART 226--[AMENDED]
0
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Add Sec. 226.220, to read as follows:
Sec. 226.220 Critical habitat for the Cook Inlet beluga whale
(Delphinapterus leucas).
Critical habitat is designated in Cook Inlet, Alaska, for the Cook
Inlet beluga whale as described in paragraphs (a) and (b) of this
section. The textual description of this critical habitat is the
definitive source for determining the critical habitat boundaries.
General location maps are provided for general guidance purposes only,
and not as a definitive source for determining critical habitat
boundaries. Critical habitat does not include manmade structures and
the land on which they rest within the designated boundaries described
in paragraphs (a)(1) and (2) of this section that were in existence as
of May 11, 2011.
(a) Critical Habitat Boundaries. Critical habitat includes two
specific marine areas in Cook Inlet, Alaska. These areas are bounded on
the upland by Mean High Water (MHW) datum, except for the lower reaches
of four tributary rivers. Critical habitat shall not extend into the
tidally-influenced channels of tributary waters of Cook Inlet, with the
exceptions noted in the descriptions of each critical habitat area.
(1) Area 1. All marine waters of Cook Inlet north of a line from
the mouth of Threemile Creek (61[deg]08.5' N., 151[deg]04.4' W.)
connecting to Point Possession (61[deg]02.1' N., 150[deg]24.3' W.),
including waters of the Susitna River south of 61[deg]20.0' N., the
Little Susitna River south of 61[deg]18.0' N., and the Chickaloon River
north of 60[deg]53.0' N.
(2) Area 2. All marine waters of Cook Inlet south of a line from
the mouth of Threemile Creek (61[deg]08.5' N., 151[deg]04.4' W.) to
Point Possession (61[deg]02.1' N., 150[deg]24.3' W.) and north of
60[deg]15.0'N., including waters within 2 nautical miles seaward of MHW
along the western shoreline of Cook Inlet between 60[deg]15.0' N. and
the mouth of the Douglas River (59[deg]04.0' N., 153[deg]46.0' W.); all
waters of Kachemak Bay east of 151[deg]40.0' W.; and waters of the
Kenai River below the Warren Ames bridge at Kenai, Alaska.
(b) A map of the designated critical habitat for Cook Inlet beluga
whale follows (Figure 1).
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[[Page 20213]]
[GRAPHIC] [TIFF OMITTED] TR11AP11.000
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[[Page 20214]]
(c) Primary constituent elements. The primary constituent elements
essential to the conservation of the Cook Inlet beluga whale are:
(1) Intertidal and subtidal waters of Cook Inlet with depths <30
feet (MLLW) and within 5 miles of high and medium flow anadromous fish
streams.
(2) Primary prey species consisting of four species of Pacific
salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific
cod, walleye pollock, saffron cod, and yellowfin sole.
(3) Waters free of toxins or other agents of a type and amount
harmful to Cook Inlet beluga whales.
(4) Unrestricted passage within or between the critical habitat
areas.
(5) Waters with in-water noise below levels resulting in the
abandonment of critical habitat areas by Cook Inlet beluga whales.
(d) Sites owned or controlled by the Department of Defense, or of
interest to national security. Critical habitat does not include the
following areas owned by the Department of Defense or for which the
Secretary has determined to exclude for reasons of national security:
(1) All property and overlying waters of Joint Base Elmendorf-
Richardson between Mean Higher High Water and Mean High Water; and
(2) All waters off the Port of Anchorage which are east of a line
connecting Cairn Point (61[deg]15.4' N., 149[deg]52.8' W.) and Point
MacKenzie (61[deg]14.3' N., 149[deg]59.2' W.) and north of a line
connecting Point MacKenzie and the north bank of the mouth of Ship
Creek (61[deg]13.6' N., 149[deg]53.8' W.).
[FR Doc. 2011-8361 Filed 4-8-11; 8:45 am]
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