Proposed Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 Southern Resident Killer Whale

Federal Register / Vol. 71, No.
115 / Thursday, June 15, 2006 / Proposed Rules 34571
DEPARTMENT OF COMMERCE • Federal eRulemaking Portal: http:// exclusion outweigh the benefits of
www.regulations.gov. Follow the designation, unless excluding an area
National Oceanic and Atmospheric instructions at that site for submitting from critical habitat will result in the
Administration comments. extinction of the species concerned.
• Mail: Submit written comments and Once critical habitat is designated,
50 CFR Part 226 information to Chief, Protected section 7(a)(2) of the ESA requires that
Resources Division, 1201 NE Lloyd each Federal agency, in consultation
[Docket No. 060228057–6057–01; I.D. Blvd., Suite 1100, Portland, OR 97232– with us and with our assistance, ensure
022206D] that any action it authorizes, funds, or
1274.
RIN 0648–AU38 The proposed rule, maps, stock carries out is not likely to result in the
assessments, listing rule, biological and destruction or adverse modification of
Endangered and Threatened Species; economic analyses, and other materials critical habitat.
Designation of Critical Habitat for the relating to this proposal can be found on Killer Whale Natural History
Southern Resident Killer Whale our Web site at http://
www.nwr.noaa.gov/. Killer whales are the world’s largest
AGENCY: National Marine Fisheries dolphin. The sexes show considerable
FOR FURTHER INFORMATION CONTACT:
Service, National Oceanic and size dimorphism, with males attaining
Lynne Barre at (206) 526–4745, or Marta
Atmospheric Administration, maximum lengths and weights of 29.5
Nammack at (301) 713–1401.
Commerce. feet (9 m) and 12,275 pounds (5,568 kg),
SUPPLEMENTARY INFORMATION: respectively, compared to 25.3 feet (7.7
ACTION: Proposed rule; request for
comment. Background m) and 8,400 pounds (3,810 kg) for
females (Dahlheim and Heyning, 1999).
SUMMARY: We, the National Marine Under the Endangered Species Act of Adult males develop larger pectoral
Fisheries Service (NMFS), propose to 1973, as amended (ESA), we are flippers, dorsal fins, tail flukes, and
designate critical habitat for the responsible for determining whether girths than females (Clark and Odell,
Southern Resident killer whale (Orcinus certain species, subspecies, or distinct 1999). Maximum life span is estimated
orca) distinct population segment (DPS), population segments (DPS) are to be 80–90 years for females and 50–
which was recently listed as endangered threatened or endangered, and 60 years for males (Olesiuk et al., 1990).
under the Endangered Species Act designating critical habitat for them (16 Animals are black dorsally and have a
(ESA). Three specific areas are proposed U.S.C. 1533). In November 2005, we white ventral region extending from the
for designation: The Summer Core Area listed the Southern Resident killer chin and lower face to the belly and
in Haro Strait and waters around the whale DPS as endangered under the anal region. Each whale has a uniquely
San Juan Islands; Puget Sound; and the ESA (70 FR 69903; November 18, 2005). shaped and scarred dorsal fin and
Strait of Juan de Fuca, which comprise At the time of listing, we also saddle patch, which permits animals to
approximately 2,564 square miles (6,641 announced our intention to propose be individually recognized, as depicted
sq km) of marine habitat. We propose to critical habitat for the Southern in photo-identification catalogs, such as
exclude 18 military sites, comprising Resident killer whale. those compiled for the northeastern
approximately 112 square miles (291 sq Section 3 of the ESA defines critical Pacific region (e.g., Black et al., 1997;
km), because of national security habitat as ‘‘(i) the specific areas within Dahlheim, 1997; Dahlheim et al., 1997;
impacts. the geographical area occupied by the van Ginneken et al., 1998; 2000; 2005;
We are soliciting comments from the species, at the time it is listed * * *, on Matkin et al., 1999; Ford and Ellis, 1999;
public on all aspects of the proposal, which are found those physical or Ford et al., 2000).
including information on the economic, biological features (I) essential to the Three distinct forms of killer whales,
national security, and other relevant conservation of the species and (II) termed residents, transients, and
impacts of the proposed designation, as which may require special management offshores, are recognized in the
well as the benefits to Southern considerations or protection; and (ii) northeastern Pacific Ocean. Although
Resident killer whales from designation. specific areas outside the geographical there is considerable overlap in their
A draft economic analysis, biological area occupied by the species at the time ranges, these forms display significant
report, and Section 4(b)(2) report it is listed * * *, upon a determination genetic differences due to a lack of
conducted in support of this proposal by the Secretary that such areas are reproductive interchange (Stevens et al.,
are also available for public review and essential for the conservation of the 1989; Hoelzel and Dover, 1991; Hoelzel
comment. species.’’ Section 3 of the ESA (16 et al., 1998; Barrett-Lennard, 2000;
U.S.C. 1532(3)) also defines the terms Barrett-Lennard and Ellis, 2001; Krahn
DATES: Comments on this proposed rule
‘‘conserve,’’ ‘‘conserving,’’ and et al., 2004). There are also important
must be received by close of business on ‘‘conservation’’ to mean: ‘‘to use, and differences in ecology, behavior,
August 14, 2006. Public meetings have the use of, all methods and procedures morphology, and acoustics among these
been scheduled for July 12, 2006, 7–9 which are necessary to bring any three forms (Baird, 2000; Ford et al.,
p.m., at the Seattle Aquarium, Seattle, endangered species or threatened 2000).
WA and July 13, 2006, 7–9 p.m., at the species to the point at which the Resident killer whales in U.S. waters
Whale Museum, Friday Harbor, WA. measures provided pursuant to this are distributed from Alaska to
Requests for additional public hearings chapter are no longer necessary.’’ California, with four distinct
must be made in writing by July 31, Section 4 of the ESA requires that, communities recognized: Southern,
cprice-sewell on PROD1PC66 with PROPOSALS
2006. before designating critical habitat, we Northern, Southern Alaska, and Western
ADDRESSES: Comments may be consider economic impacts, impacts on Alaska (Krahn et al., 2002; 2004). The
submitted by any of the following national security, and other relevant Southern Resident DPS consists of three
methods: impacts of specifying any particular area pods, identified as J, K, and L pods, that
• E-mail: orcahabitat.nwr@noaa.gov. as critical habitat. The Secretary may reside for part of the year in the inland
E-mail comments, with or without exclude any area from critical habitat if waterways of Washington State and
attachments, are limited to 5 megabytes. he determines that the benefits of British Columbia (Strait of Georgia,
VerDate Aug<31>2005 15:35 Jun 14, 2006 Jkt 208001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\15JNP1.SGM 15JNP1
34572 Federal Register / Vol. 71, No. 115 / Thursday, June 15, 2006 / Proposed Rules
Strait of Juan de Fuca, and Puget southeastern Vancouver Island, that daily and that younger whales (<13
Sound), principally during the late focused primarily on Northern years of age) need 15–17 salmon daily
spring, summer, and fall (Ford et al., Residents, relied on several field to maintain their energy requirements.
2000; Krahn et al., 2002). Pods visit techniques susceptible to bias (e.g., These data provide a ‘‘rule of thumb’’ of
coastal sites off Washington and surface observations and scale approximately 25 salmon per day per
Vancouver Island (Ford et al., 2000), but sampling), and reported on a relatively whale, estimated over all age classes.
travel as far south as central California small sample of observations for We estimate that a Southern Resident
and as far north as the Queen Charlotte Southern Residents. Of the 487 records DPS of 90 individuals would eat about
Islands. Offshore movements and of apparent fish predation events from 820,000 adult salmon annually
distribution are largely unknown for the 1974–2004, only 68 (14 percent) (Osborne, 1999). This does not,
Southern Resident DPS. observations came from Southern however, account for any other prey
Social organization in this region is Residents. While this information is species and is therefore likely an
based on maternal kinship. Most mating limited, it is the best information overestimate of potential salmon
in the North Pacific is believed to occur available. consumption. The average fish size in
from May to October (Nishiwaki, 1972; In this study, salmon were found to the extrapolation was based on a
Olesiuk et al., 1990; Matkin et al., 1997). represent over 96 percent of the prey combination of five species, so the
However, small numbers of conceptions during the summer and fall. Chinook estimate also does not account for
apparently happen year-round, as salmon (Oncorhynchus tshawytscha) consumption of varying amounts of
evidenced by births of calves in all were selected over other species, different species of salmon.
months. Calves remain close to their comprising over 70 percent of the As with other delphinids, killer
mothers during their first year of life, identified salmonids taken. This whales hear sounds through the lower
often swimming slightly behind and to preference occurred despite the much jaw and other portions of the head,
the side of the mother’s dorsal fin. lower abundance of Chinook in the which transmit the sound signals to
Weaning age remains unknown, but study area in comparison to other receptor cells in the middle and inner
nursing probably ends at 1 to 2 years of salmonids and is probably related to the ears (Mhl et al., 1999; Au, 2002).
age (Haenel, 1986; Kastelein et al., species’ large size, high fat and energy Hearing ability extends from one to at
2003). Mothers and offspring maintain content, and year-round occurrence in least 120 kHz, but is most sensitive in
highly stable social bonds throughout the area. Other salmonids eaten in the range of 18–42 kHz (Szymanski et
their lives, and this natal relationship is smaller amounts included chum (O. al., 1999). The most sensitive frequency
the basis for the matrilineal social keta, 22 percent of the diet), pink (O.
is 20 kHz, which corresponds with the
structure (Bigg et al., 1990; Baird, 2000; gorbuscha, three percent), coho (O.
approximate peak energy of the species’
Ford et al., 2000). A matriline is usually kisutch, two percent), and sockeye (O.
echolocation clicks (Szymanski et al.,
composed of a female, her sons and nerka, one percent) salmon, and
1999). Clicks are brief pulses of
daughters, and offspring of her steelhead (O. mykiss, less than one
ultrasonic sound given singly or more
daughters, and contains up to 17 percent) (Ford and Ellis, 2005). This
often in series known as click trains.
individuals spanning up to five work suggests an overall preference for
They are used primarily for navigation
generations. Members maintain Chinook salmon during the summer and
and discriminating prey and other
extremely strong bonds, and individuals fall, but also revealed extensive feeding
objects in the surrounding environment,
seldom separate from the group for more on chum salmon in the fall. Rockfish
than a few hours. (Sebastes spp.), Pacific halibut but are also commonly heard during
Although there is considerable (Hippoglossus stenolepis), and Pacific social interactions and may have a
overlap in the geographic ranges of herring (Clupea pallasi) were also communication function (Barrett-
Southern and Northern Resident killer observed during predation events (Ford Lennard et al., 1996). Killer whales
whales, pods from the two communities and Ellis, 2005), but in much smaller locate their prey through a combination
have not been observed to intermix amounts. This study may underestimate of echolocation and passive listening
(Ford et al., 2000). Genetic analyses the extent of feeding on bottom fish (Barrett-Lennard et al., 1996), but
using nuclear (microsatellite) and (Baird, 2000) because it is more difficult probably rely on vision and
mitochondrial DNA indicate that the to observe predation on bottom fish. echolocation during capture.
two communities are most likely A number of smaller flatfish, lingcod Vocal communication is particularly
reproductively isolated from each other (Ophiodon elongatus), greenling advanced in killer whales and is an
(Hoelzel et al., 1998; Barrett-Lennard, (Hexagrammos spp.), and squid have essential element of the species’
2000; Barrett-Lennard and Ellis, 2001). been identified in stomach content complex social structure. Like all
Recent paternity analyses using analyses of resident whales (Ford et al., dolphins, killer whales produce
microsatellite DNA indicate that 1998). Additional sampling of prey numerous types of vocalizations that are
resident males nearly always mate with remains in 2004 and 2005 also indicate useful in navigation, communication,
females outside of their own pods, consistent primary selection of Chinook and foraging (Dahlheim and Awbrey,
thereby reducing the risks of inbreeding by the Southern Residents in the 1982; Ford, 1989; Barrett-Lennard et al.,
(Barrett-Lennard, 2000; Barrett-Lennard seasons sampled (NWFSC, unpubl. 1996; Ford et al., 2000; Miller, 2002;
and Ellis, 2001). data). Miller et al., 2004). Dialects are complex
Based on scale sampling and stomach The energy requirements of killer and stable over time, and are unique to
contents studies, Southern Resident whales are about 85,000 kcal per day for single pods. Call patterns and structure
killer whales are known to consume 22 juveniles, 100,000 kcal per day for are also distinctive within matrilines
species of fish and one species of squid immatures, 160,000 kcal per day for (Miller and Bain, 2000). Individuals
(Scheffer and Slipp, 1948; Ford et al., adult females, and 200,000 kcal per day likely learn their dialect through contact
1998; 2000; Ford and Ellis, 2005; for adult males (Osborne, 1999). Based with their mother and other pod
Saulitis et al., 2000). Most published on these values and an average size for members (Ford, 1989; 1991; Miller and
information originates from a single five salmon species combined, Osborne Bain, 2000). Distinct vocal repertoires,
study (Ford et al., 1998; Ford and Ellis, (1999) estimated that adults must or dialects, may be a mechanism that
2005) in British Columbia, including consume about 28–34 adult salmon guides breeding with individuals
Federal Register / Vol. 71, No. 115 / Thursday, June 15, 2006 / Proposed Rules 34573
outside of natal pods, but within the sites, feeding sites, seasonal wetland or tradition passed from one generation to
resident group. dryland, water quality or quantity, the next (Ford et al., 1998).
Killer whales frequent a variety of geological formation, vegetation type, Based on this natural history of the
marine habitats that do not appear to be tide, and specific soil types.’’ Southern Resident killer whales and
constrained by water depth, Fish are the major dietary component their habitat needs, the physical or
temperature, or salinity (Baird, 2000). of resident killer whales in the biological features of Southern Resident
They are highly mobile, can cover large northeastern Pacific, with 22 species of killer whale habitat identified in the
distances, and range over a variety of fish and one species of squid proposal to list the species (69 FR
habitats, including inland waters and (Gonatopsis borealis) known to be eaten 76673; December 22, 2004) were:
open ocean coastal areas. (Scheffer and Slipp, 1948; Ford et al., (1) Water quality to support growth
The Southern Residents spend large 1998; 2000; Ford and Ellis, 2005; and development;
amounts of time in ‘‘core’’ inland Saulitis et al., 2000). Observations from (2) Prey species of sufficient quantity,
marine waters coinciding with this region indicate that salmon are quality and availability to support
congregations of migratory salmon clearly preferred as prey (Ford et al., growth and development;
returning from the Pacific Ocean to 1998; Ford and Ellis, 2005) and are (3) Sound levels that do not exceed
spawn in U.S. and Canadian Rivers. The likely consumed in large amounts, as thresholds that inhibit communication
topographic and oceanographic features indicated by the estimates of total or foraging activities or result in
in these core areas include channels and salmon consumed by the Southern temporary or permanent hearing loss;
shorelines which congregate prey and Resident killer whale DPS. Sufficient and
assist with foraging. Southern Residents prey abundance is necessary to support (4) Safe passage conditions to support
are large mammals requiring abundant individual growth to reach sexual migration and foraging.
food sources to sustain metabolic maturity and reproduction, including NMFS received several comments on
processes throughout the year. Prey lactation and successful rearing of the features mentioned in the proposal
availability changes seasonally, and calves. to list the species. For purposes of this
Southern Residents appear to depend on proposal to designate critical habitat, we
In addition to a sufficient biomass of
different prey species and habitats have revised the PCEs as follows:
prey species, the prey must not have (1) Water quality to support growth
throughout the year. The seasonal
amounts of contaminants that exceed and development;
timing of salmon returns to Southern
Puget Sound river systems likely levels that can cause mortality or (2) Prey species of sufficient quantity,
influences the movements of Southern reproductive failure. Because of their quality and availability to support
Residents out of core summer areas. long life span, position at the top of the individual growth, reproduction and
Whales may travel significant distances food chain, and their blubber stores, development, as well as overall
to locate prey aggregations sufficient to killer whales accumulate high population growth; and
support their numbers. concentrations of contaminants. (3) Passage conditions to allow for
Organochlorines, such as migration, resting, and foraging.
Physical or Biological Features polychlorinated biphenyls (PCBs) and We are gathering additional
Essential for Conservation (Primary dichlorodiphenyltrichloroethane (DDT), information to assist us in evaluating
Constituent Elements) and many other chemical compounds sound as a potential PCE, see Public
Joint NMFS–U.S. Fish and Wildlife are a concern because of their ability to Comments Solicited.
Service regulations for listing induce immune suppression,
endangered and threatened species and reproductive impairment, and other Geographical Area Occupied by the
designating critical habitat at 50 CFR physiological damage, as observed in Species
424.12(b) state that the agencies ‘‘shall several species of marine mammals Photo-identification studies, tracking
consider those physical and biological (Béland et al., 1998; Bergman et al., by boats, and opportunistic sightings
features that are essential to the 1992; De Guise et al., 2003; Jepson et al., have provided considerable information
conservation of a given species and that 1999; Reijinders, 2003; Ross, 2002). To on the ranges and movements of
may require special management move between important habitat areas, Southern Resident killer whales since
considerations or protection (hereafter find prey, and fulfill other life history the early 1970s. Ranges are best known
also referred to as ‘Essential Features’ or requirements, the Southern Resident from late spring to early autumn (May-
‘Primary Constituent Elements’/ killer whales require open waterways September), when survey effort is
‘PCEs’).’’ Pursuant to the regulations, that are free from obstruction, such as greatest. During this period, all three
such requirements include, but are not in-water structures that block passage. Southern Resident pods—J, K and L—
limited to, the following: (1) Space for Killer whale habitat use is dynamic, are regularly present in the Georgia
individual and population growth, and and specific breeding, calving or resting Basin (defined as the Georgia Strait, San
for normal behavior; (2) food, water, air, areas have not been documented. Births Juan Islands, and Strait of Juan de Fuca)
light, minerals, or other nutritional or occur largely from October to March, (Heimlich-Boran, 1988; Felleman et al.,
physiological requirements; (3) cover or but may take place in any month 1991; Olson, 1998; Osborne, 1999).
shelter; (4) sites for breeding, (Olesiuk et al., 1990), and, therefore, While in inland waters during
reproduction, rearing of offspring, potentially in any part of the whales’ summer months, all of the pods
germination, or seed dispersal; and range. Southern Residents are highly concentrate their activity in Haro Strait,
generally, (5) habitats that are protected mobile and can travel up to 100 miles Boundary Pass, the southern Gulf
from disturbance or are representative of (160 km) in a 24-hour period (Baird, Islands, the northeastern end of the
the historic geographical and ecological 2000), allowing rapid movements Strait of Juan de Fuca, and several
distributions of a species. These between areas. These movements likely localities in southern Georgia Strait
regulations state that we shall focus on coincide with prey concentrations. (Heimlich-Boran, 1988; Felleman et al.,
essential features within the specific Individual knowledge of productive 1991; Olson, 1998; Ford et al., 2000).
areas considered for designation. These feeding areas and other special habitats Pods commonly occur and are observed
features ‘‘may include, but are not is probably important in the selection of foraging in areas where salmon frequent,
limited to, the following: spawning locations visited and is likely a learned especially during the times of year
salmon are migrating to their natal Southern Residents are less well known. fill in the data gaps about the important
rivers (Heimlich-Boran, 1986; 1988; J pod continues to occur intermittently habitat features of these coastal and
Nichol and Shackleton, 1996). Notable in the Georgia Basin and Puget Sound offshore areas.
concentrations include Haro Strait and part of this time, but its location during NMFS regulations at 50 CFR 424.12(h)
Boundary Passage, the southern tip of apparent absences is uncertain state: ‘‘Critical habitat shall not be
Vancouver Island, Swanson Channel off (Osborne, 1999). One sighting of this designated within foreign countries or
North Pender Island, and the mouth of pod was made off Cape Flattery, in other areas outside of United States
the Fraser River delta, which is visited Washington, in March 2004 (Krahn et jurisdiction.’’ Although the Southern
by all three pods in September and al., 2004). Prior to 1999, K and L pods Residents’ range includes inland waters
October (Felleman et al., 1991; Ford et followed a general pattern in which they of Canada, we are not proposing these
al., 2000). These sites are major spent progressively smaller amounts of areas for designation.
corridors for migrating salmon. time in inland waters during October Specific Areas Within the Geographical
Individual pods are generally similar and November and departed them Area Occupied by the Species
in their preferred areas of use (Olson, entirely by December of most years
1998), although some seasonal and (Osborne, 1999). Sightings of both Several commenters stated that
temporal differences exist in areas used. groups passing through the Strait of designating critical habitat was
All three pods typically arrive in May or Juan de Fuca in late fall suggested that important for the recovery of Southern
June and spend most of their time in activity shifted to the outer coasts of Resident killer whales and that
inland waters until departing in October Vancouver Island and Washington designation should occur as soon as
or November. However, K and L pods (Krahn et al., 2002), although it is possible. Suggestions for essential
make frequent trips lasting a few days unclear if the whales spend a features, and specific areas where they
to the outer coasts of Washington and substantial portion of their time in this could be found, were general and
southern Vancouver Island during this area or simply transit to other locations. included ‘‘most of Puget Sound,’’ ‘‘Puget
time period (Ford et al., 2000). During While there are considerable data on Sound and the Straits of Georgia and
early autumn, Southern Resident pods, the use of inland waters of Washington, Juan de Fuca,’’ and ‘‘all internal waters
especially J pod, routinely expand their there is very little information on the of Washington State.’’
movements into Puget Sound, probably movements of Southern Resident killer We reviewed the available
to take advantage of chum and Chinook whales off the coast. Areas of activity of information on Southern Resident
salmon runs (Osborne, 1999). all pods are virtually unknown during distribution, habitat use and habitat
Additional studies currently underway their absences from inland waters. In needs in a biological report to assist in
have identified finer scale pod the last 30 years of study, there are only identifying critical habitat (NMFS,
differences in seasonal movement 28 confirmed sightings in outside waters 2006a). Within the geographical area
patterns and use of core areas (Hauser (Krahn et al., 2004; NWFSC unpubl. occupied by the Southern Resident
et al., in prep). data). The majority of these sightings killer whales we have identified three
There are no confirmed sightings of were opportunistic, with most occurring specific areas that contain essential
Southern Resident killer whales inside within 10 miles (16.1 km) of shore, and habitat features. We have divided the
Hood Canal. On one occasion in 1995, we do not know how far from shore the inside waters of Washington State into
acoustic recordings from Dabob Bay Southern Residents range. Several new specific areas based on the habitat
were identified as J pod vocalizations sightings occurred during the last 5 features and the use patterns of the
(Unger, 1997). We do not consider this years, when effort was increased with Southern Resident killer whales.
sufficient evidence of presence to find dedicated ship surveys and expanded We analyzed Southern Resident killer
Hood Canal ‘‘within the geographical volunteer coastal sighting networks. Our whale sightings data from The Whale
area occupied by the species.’’ knowledge of the southern and northern Museum (Osborne, 2005; The Whale
(Transient killer whales, in contrast, boundaries of the range has expanded Museum Orca Master, 1990–2003) to
have been observed in Hood Canal on with these new sightings from California assist in identifying specific areas based
multiple occasions and have remained and the Queen Charlotte Islands in on habitat use patterns by the whales.
in Hood Canal for extended periods in recent years. At this time there are few The Whale Museum data are
the last several years.) data on how the whales are using predominantly opportunistic sightings
We also do not consider extremely offshore areas; however, some of the from a variety of sources, including
shallow waters of Puget Sound to be sightings included observations of public reports, commercial whale
within the geographical area occupied feeding. watching industry pager system,
by the species. Male killer whales grow There is an active research effort Soundwatch, Lime Kiln State Park land-
to 29.5 feet (9m), and females to 25.3 underway to identify coastal and based observations, and compilations of
feet (7.7m), which may limit offshore distribution of Southern independent researcher reports. The
maneuverability in shallow waters. Residents. We have increased outreach data set does not account for level of
Southern Residents are seldom observed efforts to gather sighting information effort by season or location, and,
in shallow waters. (This is in contrast to from coastal communities, vessel therefore, the sampling and data are
transient killer whales, which enter operators, and pilots along the coasts of biased (Osborne, 2005). The 1990–2003
shallow water to capture seals and sea Oregon, Washington, and British Whale Museum data set is, however, the
lions, and Northern Residents, which Columbia. In addition, researchers are most comprehensive long-term data
spend time in shallow water at rubbing conducting dedicated ship surveys to available to evaluate broad-scale whale
beaches.) Because there is limited locate the whales and observe their distribution in inland waters at this time
information, we are requesting activities outside of Puget Sound. The (with a total number of sighting records
information on killer whale use of research program is a long-term effort, of 22,509). In order to evaluate
shallow areas with less than 20 feet but we hope to greatly increase the frequency of use, our analysis of the
(6.1m) of water (see Public Comments number of coastal observations in the sightings was limited to one unique
Solicited). next 5 years. As new information is location sighting, per location, per day
During the late fall, winter, and early collected on the coastal and offshore to reduce the bias introduced by
spring, the ranges and movements of the distribution and habitat use, we hope to multiple sightings of the same whales in
the same location on the same day (total strength of the summer use pattern a passage used to access outer coastal
number of unique sightings per day is would undoubtedly persist if waters feeding grounds, including
11,836). For the majority of the killer accounting for sighting effort. Sighting Swiftsure and La Perouse Banks, off
whale sightings the location reported data from 1976–1990, when effort was Tofino, British Columbia, and off
was not an exact point location (Lat./ significantly lower, also reflects this Westport, as well as other areas with
Long.), and all locations were pattern (Whale Museum, unpubl. data). unknown usage, such as the coast of
subsequently assigned to a center point The largest number of sightings in northern California. Recent observations
in a quadrant system (Osborne, 2005). Washington’s inland waters is from at Westport coincided with presence of
Almost half of the data is from the Haro Strait off the west side of San Juan a spring Chinook salmon run, although
Whale Watch pager system created by Island. There are over 1,200 unique other species were also likely present
the commercial whale watch industry sightings from 1990–2003 in one (NWFSC, unpubl. data). The presence of
and available to subscribers. A quadrant off the west side of San Juan migrating salmonids in the Strait of Juan
validation of recent pager data revealed Island. de Fuca suggests that feeding might
greater than 90 percent accuracy in Much of the behavioral research on occur during times the whales are
locating whales (Hauser et al., in prep). Southern Residents takes place within transiting. However, the whales are not
From the sightings and other data, we Area 1. Southern Residents are observed known to spend long periods in
have identified three ‘‘specific areas,’’ exhibiting a variety of behaviors in this localized areas in the Strait. Sightings of
within the geographical area occupied area, including travel, forage, social, and the Southern Residents in Area 3 are
by the species, that contain PCEs. We play. Resident whales spend 50–67 limited, particularly on the U.S. side of
considered presence and movements of percent of their time foraging (Heimlich the international boundary, as there is
the whales, behavioral observations and Boran, 1988; Ford, 1989; Morton, 1990; little observation effort in the area,
studies, and other information to verify Felleman et al., 1991). Opportunities to particularly to the west toward the
that one or more of the physical or forage are presumed to be a major factor Bonilla Point/Tatoosh Island line. Even
biological features, or PCEs, can be attracting Southern Residents to Area 1, with a small number of actual sightings,
found in these three areas. In some cases particularly in the summer months we can infer that the whales are using
where direct data on PCEs were not when it is considered a primary feeding this corridor, and the passage PCE is
available, we relied on distribution area for all three pods (J, K, and L). present in Area 3 based on the inland
patterns of the whales to infer presence Area 2. Puget Sound—south from and coastal sightings of whales. The
of PCEs. Deception Pass Bridge, entrance to Strait of Juan de Fuca is not the only
Area 1. Core Summer Area—Bordered Admiralty Inlet, Hood Canal Bridge. transit corridor between inland waters
to the North and West by the U.S./ Southern Resident killer whale and coastal British Columbia, and the
Canadian border, Area 1 includes the occurrence in Area 2 has been whales occasionally use the Strait of
waters surrounding the San Juan correlated with fall salmon runs, a prey- Georgia and Johnstone Strait in
Islands, the U.S. portion of the Southern related PCE. Feeding has been observed Canadian waters as an alternate route.
Strait of Georgia, and areas directly in Area 2 (NWFSC, unpubl. data),
offshore of Skagit and Whatcom though few behavioral studies have Special Management Considerations
counties. Prey species, one of the PCEs, been conducted in this area. During the The specific areas within the
are present in Area 1. Runs of salmon fall, Southern Residents, especially J geographical area occupied by a species
passing through Area 1 include pod, expand their movements into Puget meet the definition of critical habitat
Chinook, chum, coho, pink, and sockeye Sound, likely taking advantage of chum only if they contain physical or
salmon, which have all been identified and Chinook salmon runs (Osborne, biological features that ‘‘may require
as prey for Southern Residents (Ford et 1999). A fall chum run was suggested as special management considerations or
al., 1998; Ford and Ellis, 2005; NWFSC, the likely reason for an extended protection.’’ Agency regulations at 50
unpubl. data). The Strait of Juan de presence of members of L pod in Dyes CFR 424.02(j) define ‘‘special
Fuca, Haro and Georgia Straits are Inlet during October and November of management considerations or
relatively narrow channels and 1997. protection’’ to mean ‘‘any methods or
concentrate salmon returning from the Southern Resident killer whales have procedures useful in protecting physical
Pacific Ocean to spawn in U.S. and been sighted in parts of Area 2 in all and biological features of the
Canadian rivers. In particular, Area 1 seasons despite limited search effort. environment for the conservation of
lies near the mouth of the Fraser River, The presence of Southern Residents in listed species.’’ Several forms of human
which has the largest salmon runs in the Area 2 is intermittent, with the smallest activity have the potential to affect the
Georgia Basin/Puget Sound region number of sightings in May–July. There habitat of killer whales and, specifically,
(Northcote and Atagi, 1997). are different sighting patterns in Area 2 the PCEs that are essential to their
Occurrence of Southern Residents in for the three pods. In the most southern conservation.
Area 1 coincides with concentrations of portion of Area 2, south of Tacoma Most salmon stocks throughout the
salmon. Southern Resident killer whales Narrows Bridge, there have been only a Northwest are at a fraction of their
have been sighted in Area 1 during small number of Southern Resident historic levels. Historically, overfishing
every month of the year, but sightings sightings from October–January, with was a major cause of decline. More
are more consistent and concentrated in one additional sighting in April. recently the major cause is loss of
the summer months of June through Area 3. Strait of Juan de Fuca— freshwater habitat. Poor ocean
August. The Whale Museum database Deception Pass Bridge, San Juan and conditions over the past two decades
from 1990–2003 contains 11,836 unique Skagit County lines to the northeast, reduced populations already weakened
sightings after duplicate locations on the entrance to Admiralty Inlet to the by the degradation and loss of
same date are excluded. Of these, 8,508 southeast, U.S./Canadian border to the freshwater and estuary habitat, fishing
are in U.S. waters, and 85 percent of the north, Bonilla Point/Tatoosh Island line pressures, hydropower system
U.S. sightings are in Area 1. Although to the West. All pods regularly use the management, and hatchery practices.
sighting effort in Area 1 is extensive Strait of Juan de Fuca for passage from Continued regulation of contaminants
during the summer months as compared Areas 1 and 2 to outside waters in the and pollution in Puget Sound is also
to other areas, which biases the data, the Pacific Ocean. Area 3 is predominantly necessary to protect the prey PCE for
Southern Residents through show a trend of decreasing levels of Coastal and Offshore Areas
management schemes, such as the contamination moving north from South We have few data on Southern
National Pollutant Discharge Puget Sound to the San Juans and up Resident distribution and habitat use of
Elimination System (NPDES). into Canadian waters (Jeffries et al., coastal and offshore areas in the Pacific
Contaminants enter marine waters and 2003; Ross et al., 2004). Exposure to Ocean. While we know that the whales
sediments from numerous sources, but contaminants for species of salmon occupy these waters for a portion of the
are typically concentrated near areas of depends on feeding patterns and may year and they are considered part of the
high human population and also be linked to salmon spending geographical area occupied by the
industrialization. Once in the different amounts of time in Puget species, we do not have detailed
environment these substances proceed Sound (O’Neill et al., 2005). Three of the information about distribution,
up the food chain, accumulating in four major oil refineries in Puget Sound behavior, and habitat. While we can
long-lived top predators like Southern are located in Area 1. There is infer that some of the PCEs, such as
Resident killer whales. Chemical commercial and recreational fishing for prey, must be present to support the
contamination through the food chain salmon and other species in Area 1, and whales, we do not have sufficient data
continues to be a potential threat to effort is seasonally dependent on fish to describe them adequately and
Southern Resident killer whales, despite abundance.
the enactment of modern pollution identify ‘‘specific areas’’ with those
controls in recent decades, which were Area 1 and nearby adjoining Canadian features. Based on the difficulties of
successful in reducing, but not waters contain the highest level of determining PCEs, we cannot assess the
eliminating, the presence of many commercial and recreational whale human activities affecting them or the
contaminants in the environment. watching activity in the region. The special management considerations for
Oil spills are another source of majority of both Canadian- and U.S.- their protection. At this time we are not
contamination that can have long- based whale watching vessels originate proposing to designate coastal or
lasting impacts on habitat (although the from ports and marinas in Area 1, offshore areas, though we do recognize
primary concern with oil spills is the although there are a small number of that they are important for the Southern
potential for direct injury to the whales). vessels originating from ports in Areas Resident killer whales. There is an
The Environmental Protection Agency 2 and 3 (Hauser et al., in prep). Fishing active research program to fill the data
and U.S. Coast Guard oversee the Oil vessels, ferries, oil tankers, and gaps regarding coastal and offshore
Pollution Prevention regulations commercial shipping vessels are also distribution and habitat features, and we
promulgated under the authority of the present in Area 1, which contains a anticipate obtaining additional data in
Federal Water Pollution Control Act. major shipping channel along the U.S.- the coming years. We will consider new
There is a Northwest Area Contingency Canada border. information as it becomes available to
Plan, developed by the Northwest Area inform future considerations of critical
Area 2. Contaminated sediment levels
Committee, which serves as the primary habitat for Southern Residents.
in Area 2 likely range from low/
guidance document for oil spill moderate (northern portions) to very Unoccupied Areas
response in Washington and Oregon. high (e.g., near Tacoma). A higher
Southern Residents are highly mobile ESA section 3(5)(A)(ii) further defines
number of NPDES permits are issued in critical habitat to include ‘‘specific areas
and use a variety of areas for foraging Area 2 than in Areas 1 or 3. One of the
and other activities, as well as for outside the geographical area occupied’’
four major oil refineries in Puget Sound if the areas are determined by the
traveling between these areas. Human is located in Area 2. Considerable vessel
activities can interfere with movements Secretary to be ‘‘essential for the
traffic (including shipping, oil tanker conservation of the species.’’
of the whales and impact the passage and ferry traffic) occurs in Area 2, and
PCE. In particular, vessels may present Regulations at 50 CFR 424.12(e) specify
the ports of Seattle and Tacoma are that NMFS ‘‘shall designate as critical
obstacles to whale passage, causing the located in Area 2. Whale watching may
whales to swim further and change habitat areas outside the geographical
be expanding in Area 2 to include fall area presently occupied by a species
direction more often, which potentially months following the primary summer
increases energy expenditure for whales only when a designation limited to its
whale watch season. There is present range would be inadequate to
and impacts foraging behavior (although commercial and recreational fishing for
this effect of vessels is primarily a direct ensure the conservation of the species.’’
salmon and other species in Area 2, and At the present time we have not
effect on the whales rather than an effect effort is seasonally dependent on fish
on their habitat). identified any areas outside the
abundance. geographical area occupied by the
Major categories of habitat-related
activities which may require special Area 3. Contaminated sediment levels species that are essential for its
management considerations or in Area 3 likely range from low to conservation, and, therefore, we are not
protection include fishery management, moderate with isolated spots of proposing to designate any unoccupied
vessel activities, and water quality moderate/high levels (e.g., Port areas. During the comment period we
management. All of these activities have Angeles). Area 3 contains a major are requesting information on any
the potential to affect the PCEs by shipping lane for commercial shipping potential unoccupied areas that may be
altering prey abundance, prey vessels entering and departing major essential for conservation.
contamination levels, and passage U.S. ports of Seattle and Tacoma, and
Vancouver in British Columbia, Canada. Activities That May be Affected
between areas.
Oil tankers also use the shipping lane to Section 4(b)(8) of the ESA requires
Features Which May Require Special transport crude oil to the four major that we describe briefly and evaluate, in
Management Considerations or refineries in Puget Sound. There is little any proposed or final regulation to
Protection in Each Specific Area whale watching activity in Area 3. designate critical habitat, those
Area 1. Area 1 likely has areas of low There is commercial and recreational activities that may destroy or adversely
to moderate levels of contaminated fishing for salmon and other species in modify such habitat or that may be
sediments. Levels of contaminants in Area 3, and effort is seasonally affected by such designation. A wide
marine mammals such as harbor seals dependent on fish abundance. variety of activities may affect critical
habitat and, when carried out, funded, this designation, we analyzed two types modification prohibition, beyond the
or authorized by a Federal agency, of ‘‘particular’’ areas. Where we changes predicted to occur as a result of
require an ESA section 7 consultation. considered economic impacts, and listing and the jeopardy prohibition. For
Such activities include, but are not weighed the economic benefits of example, in our recent critical habitat
limited to, fishery management exclusion against the conservation designations for salmon and steelhead,
practices, vessel traffic, dredging and benefits of designation, we used the informed by a Tenth Circuit decision,
disposal, sub-marine cable/pipeline same biologically-based ‘‘specific’’ areas we considered the ‘‘co-extensive’’
installation and repair, oil and gas we had identified under section 3(5)(A) impact of designation—that is, the
exploration, pollutant discharge, and oil (Areas 1, 2, and 3). This delineation predicted change in agency action as a
spill prevention and response. allowed us to most effectively consider result of critical habitat designation and
This proposed designation of critical the conservation value of the different the adverse modification prohibition,
habitat will provide Federal agencies, areas when balancing conservation even if the same change would have
private entities, and the public with benefits of designation against economic occurred because of listing and the
clear notification of proposed critical benefits of designation. Where we jeopardy prohibition. For the present
habitat for Southern Resident killer considered impacts on national security, rulemaking, we have again predicted the
whales and the boundaries of the however, we instead used a delineation co-extensive impact of designation.
habitat. This proposed designation will of ‘‘particular’’ areas based on We examined the types of Federal
also assist Federal agencies and others ownership or control of the area. This activities that may affect Southern
in evaluating the potential effects of delineation allowed us to compare and Resident killer whale critical habitat.
their activities on critical habitat and in balance the benefits of designation and We identified three categories of
determining if ESA section 7 exclusion relative to land ownership activities that may affect killer whale
consultation with NMFS is needed. and management. critical habitat and therefore be subject
Consistent with recent agency guidance to ESA section 7’s adverse modification
on conducting adverse modification Impacts of Designation
requirement: Salmon fishing, vessel
analyses (NMFS, 2005a), we will apply ESA Section 4(b)(2) provides that the
traffic, and water quality management.
the statutory provisions of the ESA, Secretary shall consider certain impacts
Because killer whales are newly listed
including those in section 3 that define before designating critical habitat: ‘‘the
and we lack a consultation history, we
‘‘critical habitat’’ and ‘‘conservation,’’ to Secretary shall designate critical habitat
necessarily had to make assumptions
determine whether a proposed action * * * on the basis of the best scientific
data available and after taking into about what types of Federal activities
might result in the destruction or
consideration the economic impact, might undergo section 7 consultation.
adverse modification of critical habitat.
impact to national security, and any We next considered the range of
Application of ESA Section 4(b)(2) other relevant impact of specifying any modifications we might seek in these
The foregoing discussion describes particular area as critical habitat.’’ The activities to avoid adverse modification
the specific areas that fall within the primary impact of a critical habitat of Southern Resident killer whale
ESA section 3(5) definition of critical designation comes from the ESA section critical habitat, again making
habitat and are eligible for designation 7(a)(2) requirement that Federal assumptions, given the lack of
as critical habitat. Specific areas eligible agencies ensure their actions are not consultation history. We relied on
for designation are not automatically likely to result in the destruction or information from our proposed
designated as critical habitat. Section adverse modification of critical habitat. conservation plan for the Southern
4(b)(2) of the ESA requires the Secretary Determining this impact is complicated Resident killer whales developed under
to first consider the economic impact, by the fact that section 7(a)(2) contains the Marine Mammal Protection Act (70
impact on national security, and any the overlapping requirement that FR 57565; October 3, 2005), comments
other relevant impact of designation. Federal agencies must also ensure their on that plan, comments on the proposed
The Secretary has the discretion to actions are not likely to jeopardize the listing determination, and other
exclude an area from designation if he species’ continued existence. The true information available to the agency to
determines the benefits of exclusion impact of designation is the extent to establish the types of activities and the
(that is, avoiding the impact that would which Federal agencies modify their potential range of changes.
result from designation) outweigh the actions to ensure their actions are not A draft economic report describes in
benefits of designation based upon best likely to adversely modify the critical detail the actions we assumed may be
scientific and commercial data. The habitat—beyond any modifications they affected, the potential range of changes
Secretary may not exclude an area from would make because of listing and the we might seek in those actions, and the
designation if exclusion will result in jeopardy requirement. Additional estimate of economic impacts that might
the extinction of the species. Because impacts of designation include state and result from such changes (NMFS,
the authority to exclude is discretionary, local protections that may be triggered 2006b). A separate draft ESA 4(b)(2)
exclusion is not required for any area. as a result of designation, and benefits report describes which actions we
The first step in conducting an ESA that may arise from education of the consider more directly linked to habitat
section 4(b)(2) analysis is to identify the public to the importance of an area for effects than species effects, as well as
‘‘particular areas’’ to be analyzed. ESA species conservation. We did not our consideration of benefits of
section 3(5) defines critical habitat in identify state or local protections that designation versus benefits of exclusion
terms of ‘‘specific areas,’’ and ESA may be triggered by this proposed (NMFS, 2006c). This report also
section 4(b)(2) requires the agency to designation, but have identified describes the likelihood of an ESA
consider certain factors before educational benefits. We discuss section 7 consultation resulting in
designating ‘‘particular areas.’’ educational benefits in the ‘‘Benefits of changes to each type of action. These
Depending on the biology of the species, Designation’’ section below. reports are available on the NMFS
the characteristics of its habitat, and the We have found it difficult to predict Northwest Region Web site at http://
nature of the impacts of designation, the incremental change in Federal www.nwr.noaa.gov/. We are soliciting
‘‘specific’’ areas might be different from, agency activities as a result of critical comments on our analysis of impacts
or the same as, ‘‘particular’’ areas. For habitat designation and the adverse and their potential benefits and costs.
Impacts of Designation Generally impacts to particular areas but recognize a change will occur in most cases); some
that because of the migratory behavior changes to be ‘‘potential’’ (it is
To predict potential impacts of
of salmon (in contrast to fixed habitat foreseeable a change will occur but we
designation, we first identified three
features), designation of any area has the currently lack data to predict with any
categories of activities that may affect
potential to affect harvest in other areas. confidence the nature and extent of the
killer whale critical habitat and In considering potential impacts for
therefore be subject to ESA section 7 change); or ‘‘unlikely’’ (it is foreseeable
each particular area, we kept in mind a change will not occur in most cases).
consultation and the adverse certain analytical limitations resulting
modification prohibition: Salmon In balancing the benefits of designation
in part from our lack of a consultation against the benefits of exclusion, we
fishing, vessel traffic, and water quality history: Not all activity types are equally
management. For salmon fishing, we gave greater weight to changes we
likely to incur changes as a result of considered ‘‘likely’’ or ‘‘potential’’ than
considered a range of potential changes: ESA section 7 consultation; all estimates
Reductions in commercial and to changes we considered ‘‘unlikely.’’
are based on potential changes resulting
recreational salmon fishing from 5 from section 7 consultation, regardless Regarding the overlapping
percent to 50 percent, and closures of of whether the modifications are the prohibitions of section 7 under the ESA,
fisheries in different catch management result of the ‘‘jeopardy’’ or ‘‘adverse we analyzed each type of activity to
areas. We could not identify a federal modification’’ prohibition of section 7; determine whether it directly affects
nexus for a section 7 consultation on within each activity type, estimates are individual members of the species or
vessel traffic that would relate to the based on potential changes, so there is affects them through a habitat
effects of vessels on killer whale a wide range of estimated impacts; modification (that is, does the activity
passage. (The only vessels we identified while some impacts are allocated to a bear a more direct relationship to the
with a section 7 nexus were U.S. particular area, they could result jeopardy or adverse modification
vessels, such as military, Coast Guard, because of other areas being designated. prohibition of section 7?). In balancing
etc., and ferries, which receive federal Regarding the first two limitations, we the benefits of designation against the
funding. However, since these vessels have attempted in this analysis to weigh benefits of exclusion, we gave greater
do not affect the whales’ ability to pass impacts of designation according to weight to changes we considered as
freely among areas, we do not anticipate whether they are more or less likely to having a more direct relationship to
section 7 consultations will have any occur, and whether they are more adverse modification of critical habitat
habitat-related impacts on operations of closely associated with jeopardy or and less weight to changes we
these vessels.) For actions related to adverse modification, as described considered as having a more direct
water quality management, we below. relationship to jeopardy. Table 1
considered it too speculative to predict Regarding the first limitation, we summarizes the nature and likelihood of
either the actions that might undergo considered each of the activity types impact for each type of activity, and
ESA section 7 consultation or the types and how likely it was that a change in Table 2 depicts the relative weight we
of changes we might seek. a proposed Federal action would be gave each impact as a result of these
Where possible, we allocated impacts required as a result of ESA section 7 considerations. A summary of how we
to each particular area. For impacts to consultation. We considered some assigned the likelihood, nature of
salmon fisheries, we did allocate changes to be ‘‘likely’’ (it is foreseeable impacts, and weights follows the tables.
TABLE 1.—NATURE AND LIKELIHOOD OF IMPACT RESULTING FROM ESA SECTION 7 CONSULTATION, BY ACTIVITY TYPE
Essential feature affected Likelihood of
Activity type Type of impact
and nature of effect section 7 impact
Fisheries ................................................ —Affects prey ....................................... Harvest reduction or change in timing, Potential
—Potential to impact individuals and location, etc. by critical habitat area.
habitat modification.
Harvest closure by management area Unlikely.
Water Quality Management—Contami- —Affects prey ....................................... Changes in NPDES standards ............. Potential.
nants. —Stronger connection to habitat modi-
fication.
Changes in sewer and stormwater run- Potential.
off standards.
Water Quality Management—Oil Spills —Affects water quality .......................... Changes in oil spill regulations ............. Unlikely.
—Stronger connection to impact on in-
dividuals.
TABLE 2.—IMPACT OF DESIGNATION—RELATIVE WEIGHTS FOR EACH TYPE OF ACTIVITY

[Greatest Weight at Top Left of the Matrix, Least Weight at Bottom Right]
Likely (high weight) Potential Unlikely

Likelihood of change occurring as a result of section 7 consultation
Relationship to section 7: jeopardy vs. ad- Adverse modification .................................... —Water Quality Man-
verse modification. (high weight). agement (NPDES).
—Sewer and
stormwater runoff.
Both ............................ .................................... —Harvest Reduction —Harvest closure by
or Modification. management area.
TABLE 2.—IMPACT OF DESIGNATION—RELATIVE WEIGHTS FOR EACH TYPE OF ACTIVITY—Continued

[Greatest Weight at Top Left of the Matrix, Least Weight at Bottom Right]
Likely (high weight) Potential Unlikely
Jeopardy .................... .................................... .................................... —Changes in oil spill

regulations.
Salmon Fishing. We considered Water Quality Management. We NPDES standards and sewer and runoff
changes to salmon harvest, either considered changes in water quality standards are potential, and have a
through harvest reductions or changes management through changes in NPDES strong connection to the adverse
in timing or location of fishing effort to standards or changes in sewer and modification prohibition of section 7,
be ‘‘potential.’’ The limited available stormwater runoff standards to be we gave these changes a moderate to
information about killer whale foraging ‘‘potential.’’ Presently, we lack high weight. We gave changes to oil
indicates salmon are their primary prey sufficient information about the spill regulations a low weight because
species (NMFS, 2006a). We are therefore relationships among the sources of we consider such changes an unlikely
likely to focus ESA section 7 contaminants, their movement through result of section 7 consultation and
consultations on actions affecting the food chain, and their impact on because such changes would be more
salmon abundance, particularly in times killer whales to determine what changes closely linked to jeopardy than to
and areas where the whales are foraging. we might seek. Once we have more adverse modification.
There is presently little direct information, however, we anticipate
Benefits of Designation
information, however, about the some changes may be required. Our
interactions between salmon harvest ability to estimate impacts of The primary benefit of designation is
and foraging success of whales. Because designation is also complicated by the that section 7 of the ESA requires all
we presently lack information allowing fact that the State of Washington has Federal agencies to ensure their actions
us to predict the nature and extent of many efforts already underway to are not likely to destroy or adversely
any changes we might seek, we consider address water quality issues (PSAT, modify the designated habitat. This is in
reductions in salmon harvest or changes 2005) and recently announced a new addition to the requirement that all
in the location and timing of harvest as Puget Sound Partnership initiative to Federal agencies ensure their actions are
‘‘potential’’ impacts of section 7 restore and protect Puget Sound. These not likely to jeopardize the species’
consultation. In contrast, we considered efforts would presumably be in addition continued existence. Another benefit of
harvest closure by management area to existing requirements under the designation is that it provides notice of
‘‘unlikely’’ because the management Clean Water Act and other applicable areas and features important to species
areas are large, not necessarily aligned standards. Any new requirements conservation, and information about the
with whale foraging areas, would likely imposed or efforts undertaken by the types of activities that may reduce the
involve species that may not be state and local governments would alter conservation value of the habitat, which
important components of the Southern the baseline conditions, which we use can be effective for education and
Residents’ diet, and could include large to determine the impacts of designation. outreach. Critical habitat designation
numbers of fish that surpass the We considered changes to oil spill may also trigger protection under state
nutritional requirements of the whales regulations unlikely because we believe or local regulations.
for some catch areas. additional oil spill regulations are not In addition to the direct benefits of
We considered fishing to have an needed to meet section 7 requirements. critical habitat designation to the killer
equally strong connection to both the Water quality management has the whales, there may be ancillary benefits.
jeopardy and the adverse modification potential to affect individual Southern These other benefits may be economic
prohibitions of ESA section 7. Salmon Residents, but is of greatest concern in nature, or they may be expressed
fishing directly affects individual because it may allow contaminants to through beneficial changes in the
members of the species by reducing the enter the whales’ habitat and food ecological functioning of Puget Sound.
amount of food available, and, therefore, chain. When ultimately consumed by For example, Puget Sound supports an
potentially affecting the ability of killer whales, the contaminants can active whale watching industry, and so
individual animals to meet their cause injury, but the effect is through an increase in the killer whale
nutritional requirements. Salmon are the whales’ prey, an important feature of population could increase the economic
also one of the biological features in the their habitat. Once the contaminants value of that activity. Another example
habitat essential to conservation of the enter the habitat, they cause a long- could be the increased viability of Puget
whales, so fishing also modifies critical lasting modification of the habitat. This Sound salmon populations if their
habitat by removing prey. Because modification occurs regardless of harvest is reduced to assure a larger
changes in fisheries through catch whether the whales are present at the prey supply for killer whales. Yet
reductions or changes in timing and time of the activity. We therefore another example could be reduced
location are potential, and because they consider this the activity with the levels of pollution in Puget Sound.
have a connection to both the jeopardy strongest link to the adverse With sufficient information, it may be
and adverse modification prohibition of modification prohibition of ESA section possible to monetize benefits of critical
section 7, we gave these potential 7. Oil spills have the potential to modify habitat designation. For the direct
changes a moderate weight (see Table habitat, but are a primary concern benefits, this would require us to first
2). We gave area management closures because of their potential to directly quantify the benefit to killer whales
a low weight because, while they have injure individual animals. We expected from ESA section 7
a connection to both the jeopardy and considered this activity to have a consultation (for example, the number
adverse modification prohibitions, they stronger link to the jeopardy prohibition of killer whales saved or the increase in
are unlikely. of ESA section 7. Because changes to their longevity, health, productivity,
etc.), and then translate that benefit into in the area, the types of human activities al., 1998; Ford and Ellis, 2005; NWFSC,
dollars (for example, using information occurring in the area that may threaten unpubl. data).
about willingness-to-pay). For the the features, and the likelihood that Killer whales require abundant prey
ancillary benefits, monetizing benefits designation would lead to changes in for successful foraging. Designation of
would require quantifying the effects of those activities either because of an ESA Area 1 as critical habitat is likely to
critical habitat protection to these other section 7 consultation or because of the improve the ability of an ESA section 7
possible sources of benefits, and then educational effect of designation. We consultation to focus on salmon
translating these impacts into dollars. also considered that each area is unique abundance as an essential biological
We are not aware of any available data and supports a distinct aspect of the
feature of the whales’ habitat. It is also
that would support either step of such whales’ life history. This consideration
likely to improve the ability of a section
an analysis for killer whales. The short is described in the 4(b)(2) report
statutory timeframes and the ESA’s 7 consultation to affect water quality
supporting this proposed rule (NMFS,
requirement to use the best ‘‘available’’ management activities, though we have
2006c) and summarized below.
information suggest such a costly and Area 1. This is the particular area little information at this time to predict
time-consuming approach is not where Southern Residents are most what those actions may be and how
currently possible. In addition, ESA frequently observed and likely the most such actions may be changed as a result
section 4(b)(2) requires us to consider important area for their conservation. of section 7 consultation.
and weigh impacts other than economic Whales are observed feeding, There is little likelihood that an ESA
impacts that are equally difficult to socializing, traveling and resting in Area section 7 consultation would affect
monetize, such as the benefits to 1. The Strait of Juan de Fuca and the vessel traffic in Area 1, but we believe
national security of excluding areas Haro and Georgia Straits are relatively critical habitat designation may provide
from critical habitat. Given the lack of narrow channels that concentrate significant conservation benefits to
information that would allow us either salmon returning from the Pacific Ocean killer whales, particularly in Area 1
to quantify or monetize the benefits of to spawn in U.S. and Canadian rivers. because of its educational value for the
designation for the whales, we have In particular, Area 1 lies near the mouth large numbers of boaters and whale
determined the qualitative conservation of the Fraser River, which has the watchers. If we can highlight that the
benefits of designating each of the three largest salmon runs in the Georgia area is ‘‘critical habitat’’ for the whales,
particular areas identified as critical Basin/Puget Sound region (Northcote it will strengthen the messages to
habitat for Southern Residents. In and Atagi, 1997). Runs of salmon boaters about operating their vessels
determining the benefit of designation passing through the area include responsibly in the area. Table 3
for each area, we considered a number Chinook, chum, coho, pink, and illustrates the various factors we
of factors. We took into account the sockeye, which have all been identified considered in weighing the benefit of
physical and biological features present as prey for Southern Residents (Ford et designation for Area 1.
TABLE 3.—BENEFIT OF DESIGNATION FOR AREA 1

Frequency/Importance of Weights of impacts based on Likelihood of
PCEs Threats threats Table 2 education benefits
Water quality ........................ Oil spills ................................ High ...................................... Low.

Prey ...................................... Water quality ........................ Moderate .............................. Mod-High.
Fishing .................................. High ...................................... Moderate.
Passage ............................... Physical presence of vessels High ...................................... .............................................. High.
Area 2. Southern Resident killer There are fewer sightings of whales in quality in Area 2 is the most impaired
whales have been seen in parts of Area this area, particularly south of the of all three areas.
2 in all seasons, but they use Area 2 Tacoma Narrows bridge, and salmon There is little likelihood that a section
more in the fall than in the summer. stocks are not as abundant as in Area 1. 7 consultation would affect vessel traffic
They likely move into this area to take Nevertheless, late salmon runs appear to in Area 2, but we believe critical habitat
advantage of chum and Chinook runs as provide needed prey during the fall, designation may provide some
their occurrence in the area has been particularly for J pod. As with
correlated with fall salmon runs. conservation benefits to killer whales in
designation of Area 1, designation of this area because of its educational
Feeding has been observed in Area 2 Area 2 as critical habitat is likely to
(NWFSC, unpubl. data), although few value for boaters. Interference with the
improve the ability of an ESA section 7 whales from vessels is not as great a
behavioral studies have been conducted
consultation to focus on salmon concern in Area 2 as in Area 1, but it
in this area. The J pod in particular
expands into this area in the fall abundance as a habitat feature. It may is still an important concern because of
(Osborne, 1999), and a fall chum run also improve the ability of a section 7 the large number of recreational vessels
has been suggested as the likely reason consultation to affect water quality in this area and the potential for
for an extended presence of members of management activities. Though we have disturbance. Table 4 illustrates the
L pod in Dyes Inlet during October and little information at this time to predict various factors we considered in
November of 1997. what those actions may be and how they weighing the benefit of designation for
Area 2 may be less important than may be changed as a result of section 7 Area 2.
Area 1 to killer whale conservation. consultation, it is clear that water


Prey ...................................... Water quality ........................ High ...................................... Mod-High.
Fishing .................................. High ...................................... Moderate.
Passage ............................... Physical presence of vessels Moderate .............................. .............................................. Moderate.
Area 3. Area 3 provides needed corridor and the passage is an essential It may improve the ability of a section
passage for Southern Residents from the feature of Area 3 based on the inland 7 consultation to affect water quality
interior waters of Puget Sound to coastal and coastal sightings of whales. The management activities, though we have
waters. Although the whales may also Strait of Juan de Fuca is not the only little information at this time to predict
feed as they transit this area, the most transit corridor between inland waters what those actions may be and how they
important habitat feature of this area is and coastal British Columbia; the may be changed as a result of section 7
passage. Sightings of the Southern whales occasionally use the Strait of consultation. Water quality in Area 3 is
Residents in Area 3 are limited, Georgia and Johnstone Strait in the least impaired of all three areas.
particularly on the U.S. side of the Canadian waters as an alternate route. Although there are limited observations
international boundary as there is little It is difficult to compare the in this area, it appears that the Southern
observation effort in the area, importance of this area to Areas 1 and Residents do not stop and feed here, but
particularly to the west near the Bonilla 2 because the whales use the areas for primarily use this area for transit. Table
Point/Tatoosh Island line. Even with a different activities. Designation of Area 5 illustrates the various factors we
small number of actual sightings we can 3 as critical habitat may provide less considered in weighing the benefit of
infer that the whales are using this benefit than designation of Areas 1 or 2. designation for Area 3.


Prey ...................................... Water quality ........................ Moderate .............................. Mod-High.
Fishing .................................. Moderate .............................. Moderate.
Passage ............................... Physical presence of vessels Low ....................................... .............................................. Low.
Determining the Benefits of Excluding areas and considered national security Management and Budget, Circular A–4,
Particular Areas and Balancing the benefits of excluding the 18 ‘‘particular’’ September 17, 2003 (OMB, 2003)).
Benefits of Designation Against the areas delineated based on military
Benefits of Exclusion Economic Impacts (Economic Benefits
ownership or control.
of Exclusion)
Section 4(b)(2) of the ESA calls for ESA section 4(b)(2) calls for balancing
balancing the benefits of designation the benefits that are not directly A draft economic report describes in
against the economic, national security, comparable—the benefit associated with detail the actions we assumed may be
and other benefits of exclusion. We species conservation balanced against affected, the potential range of changes
recognize that, in reality, excluding an the economic benefit, benefit to national we might seek in those actions, and the
area from designation will not likely security, or other relevant benefit that estimate of economic impacts that might
avoid all of the impacts we considered, results if an area is excluded from result from such changes. We
because the ESA section 7 requirement designation. ESA section 4(b)(2) does considered a range of potential
regarding jeopardy still applies, just as not specify a method for the weighing modifications to fishing in Puget Sound
designating an area provides protection process. Agencies are frequently (described above) and developed an
that overlaps with that afforded by the required to balance benefits of expected direct cost for changes at each
section 7 jeopardy prohibition. To end of the range as well as in some cases
regulations against impacts; Executive
determine the benefits of excluding for intermediate points within the range.
Order (E.O.) 12866 established this
particular areas, we considered the We considered it too speculative at this
requirement for Federal agency
previously-discussed Federal activities time to postulate likely consultations on
regulation. Ideally such a balancing
that could be changed as a result of a water quality management actions, and
section 7 consultation and application would involve first translating the what changes we might seek in those
of the adverse modification prohibition. benefits and impacts into a common actions. The results of our analysis are
We considered changes to those actions metric. Executive branch guidance from contained in a draft economic report
that could potentially be required to the Office of Management and Budget (NMFS, 2006b) supporting this
avoid adversely modifying critical (OMB) suggests that benefits should first proposed rule and are summarized
habitat, regardless of whether the be monetized (converted into dollars). below. Although the range of potential
changes could also potentially be Benefits that cannot be monetized impacts is large, we consider it unlikely
required to avoid jeopardizing the should be quantified. Where benefits that the extreme ends of the range will
whales’ continued existence. We also can be neither monetized nor be achieved. The extreme ends of the
considered economic benefits of quantified, agencies are to describe the range (for all impacts in a category)
excluding each of the three ‘‘particular’’ expected benefits (U.S. Office of assume that every project or action
consulted on would have the lowest or Washington and other Federal agencies the more likely option. Thus, for salmon
highest possible cost for that type of between the publication of this fishing, the more likely option is harvest
action. This outcome is highly unlikely, proposed rule and the final rule, to reduction or changes in area and timing,
as projects are likely to have a obtain better information on current and rather than closure of management
distribution of costs within the low-high proposed programs. We will use this areas. The tables also display the weight
range. Further, because we lack information to account for any changes we gave each activity, which is relevant
information on the likely distribution of in State programs or requirements that to our consideration of costs for each
costs across projects, we believe it is may alter the baseline conditions and to area. As described in the draft
reasonable to construct a range of costs better estimate economic impacts of economics report (NMFS 2006c), the
for each area. designation for the final rule.
total range of estimated economic
Regarding impacts from changes to Tables 6 through 8 illustrate the
water quality management activities, we potential range of economic benefits of impacts for this proposed designation is
are aware of many of the programs exclusion for each area, both by activity $1,007,000–$10,071,000. (This number
currently in place to restore and protect category and by total for the area. For is slightly lower than the sum of the
Puget Sound (PSAT, 2005), and we activity categories where there were two impacts shown in Tables 6–8 due to
intend to coordinate with the State of mutually exclusive options, we selected rounding.)
TABLE 6.—ECONOMIC BENEFIT OF EXCLUSION FOR AREA 1

[in $1,000s]
Activity type Type of impact Weight Range
Salmon Fisheries .................................................. Harvest reduction or change in timing or location Moderate ....................... 305–3,055
Water Quality Management .................................. NPDES standards ................................................ Moderate-High .............. NA
Sewer and stormwater runoff ............................... Moderate-High .............. NA
Oil spills ................................................................ Low ............................... 0
Total ............................................................... ............................................................................... ....................................... 305–3,055

[in $1,000s]
Oil spills ................................................................ Low ............................... 0
Total ............................................................... ............................................................................... ....................................... 466–4,660

[in $1,000s]
Oil spills ................................................................ Low ............................... 0
Total ............................................................... ............................................................................... ....................................... 236–2,357
Section 4(b)(2) of the ESA requires weight to the incremental benefit of environment, and the potential limits on
that we balance the benefit of designation beyond the protection prey availability (primarily salmon)
designation against the economic provided by listing and the jeopardy given uncertain future ocean
benefit of exclusion for each particular prohibition. We have identified the conditions.’’ As described above,
area. The co-extensive benefit to the threats that face each area and the designation of critical habitat will
species of designation depends upon the likelihood that the adverse modification enhance our ability to address some of
inherent conservation value of the area, prohibition will enhance our ability to these threats, either through an ESA
the seriousness of the threats to that address those threats. section 7 consultation or through
conservation value, and the extent to We listed the whales as endangered, ongoing public outreach and education.
which an ESA section 7 consultation or citing, among other reasons, ‘‘the Because some of these threats bear a
the educational aspects of designation ongoing and potentially changing nature stronger relationship to adverse
will address those threats. If a threat of pervasive threats, in particular, modification than to jeopardy, we also
bears a closer relationship to the adverse disturbance from vessels, the believe there is an incremental benefit
modification prohibition of section 7, persistence of legacy toxins and the of designation beyond the protection
we can begin to understand and give addition of new ones into the whales’ afforded by the jeopardy prohibition.
The benefit of designation also before a final designation. These include affect military readiness. The Army and
depends on the inherent conservation a better understanding of the potential Navy concluded that critical habitat
value of the area. The habitat areas for impacts of designation on water quality designation at any of these sites would
these killer whales are unique and management activities. likely impact national security by
irreplaceable. It is difficult to separate diminishing military readiness. The
Impacts on National Security
the value of any one of the areas: each DoD requested that we consider
of the three areas supports a distinct Prior to listing Southern Resident conducting an ESA section 4(b)(2)
aspect of the whales’ life history, and killer whales under the ESA, we analysis to determine whether all of the
the conservation function of each area contacted the DoD by letter and sites could be excluded from
complements the conservation function identified 18 military sites, previously designation because the benefits of
of the others. Therefore, designation of addressed during salmon and steelhead exclusion outweigh the benefits of
each particular area benefits the habitat designations, that potentially designation. The possible impacts to
conservation function of the other areas. overlapped with areas under national security include: preventing,
For all of the reasons discussed above, consideration for Southern Resident restricting, or delaying training or
we consider the benefit of designation of killer whale critical habitat: (1) Naval testing exercises or access to sites;
each area to be high. Undersea Warfare Center, Keyport; (2) restricting or delaying activities
The benefit of exclusion of an area Naval Ordnance Center, Port Hadlock associated with vessel/facility
depends on some of the same factors— (Indian Island); (3) Naval Fuel Depot, maintenance and ordnance loading; and
the likelihood of an ESA section 7 Manchester; (4) Naval Air Station, delaying response times for ship
consultation and the extent to which an Whidbey Island; (5) Naval Station deployments and overall operations.
activity is likely to change as a result of Everett; (6) Naval Hospital Bremerton; The benefit of excluding these
that consultation. As with the benefit of (7) Fort Lewis (Army); (8) Pier 23 particular areas is that the Navy would
designation side of the equation, if a (Army); (9) Puget Sound Naval Ship only be required to comply with the
threat bears a closer relationship to the Yard; (10) Strait of Juan de Fuca naval jeopardy prohibition of ESA section
adverse modification prohibition of air-to-surface weapon range, restricted 7(a)(2) and not the adverse modification
section 7, we can begin to understand area; (11) Strait of Juan de Fuca and prohibition. The Navy maintains that
and give weight to the incremental cost Whidbey Island naval restricted areas; the additional commitment of resources
of designation (benefit of exclusion) (12) Admiralty Inlet naval restricted in completing an adverse modification
beyond the cost associated with listing area; (13) Port Gardner Naval Base analysis, and any change in its activities
and the jeopardy prohibition. In restricted area; (14) Port Orchard to avoid adverse modification of critical
balancing the potential costs of Passage naval restricted area; (15) habitat, would likely reduce its
designation, we also considered the Sinclair Inlet naval restricted area; (16) readiness capability. Given that the
nature of the threats and the relevance Carr Inlet naval restricted area; (17) Port Navy is currently actively engaged in
of section 7’s adverse modification Townsend/Indian Island/Walan Point training, maintaining, and deploying
prohibition to each threat. Because naval restricted area; and (18) Crescent forces in the current war effort, this
adverse modification and jeopardy bear Harbor Explosive Ordnance Units reduction in readiness could reduce the
an equally strong relationship to fishing, Training Area. ability of the military to ensure national
and because some changes in fishing are These 18 sites overlap with areas we security.
likely as a result of consultation, we found to meet the definition of critical We assessed the benefit of designating
gave these costs of designation moderate habitat for the Southern Resident killer these areas of overlap based on: the
weight. We recognize that adverse whale DPS. These sites include shore- physical or biological features of each
modification bears the strongest based facilities and offshore areas in area, the Southern Residents’ use of
relationship to water quality Puget Sound where the Navy has each area (including how frequently
management, but we presently lack security restrictions. Because of they are present), the Federal activities
sufficient data to estimate an economic mapping imprecision, we cannot in each area that might trigger an ESA
impact. We also recognize that we have determine the extent to which the shore- section 7 consultation, the likelihood
not monetized (quantified) the costs that based facilities may extend into 20-foot that we would seek a modification of
may be associated with the education (6.1 m) deep waters of Puget Sound, those activities, and the strength of the
benefit of designation with respect to and, therefore, the exact amount of connection between those activities and
vessel traffic. overlap with proposed killer whale habitat modification. The benefit of
We conclude that the economic critical habitat. There are, however, sites designation is that the section 7
benefits of excluding each particular that clearly include waters deeper than requirement regarding adverse
area do not outweigh the conservation 20 feet (6.1 meters). The 18 sites, modification would focus our section 7
benefits of designating each particular including open marine areas associated consultations on essential physical and
area as critical habitat, given the with these sites, cover approximately biological features of the whales’
endangered status of the whales, the 112 square miles (291 sq km) out of the habitat, particularly where the Federal
uniqueness of the habitat, the fact that total 2,676 square miles (6,931 sq km) activity has a more direct impact on
threats to habitat were a primary under consideration as critical habitat habitat features and a less direct impact
concern leading to our endangered for Southern Residents. The shore-based on individual killer whales.
finding, and the fact that designation sites cover 81 miles (130 km) of We considered the overlap of killer
will enhance the ability of an ESA shoreline out of the total 2,081 miles whale habitat within the boundaries of
section 7 consultation to protect the (3,349 km) of shoreline in the proposed military sites; the conservation value of
habitat. critical habitat areas. that habitat; and the types of Federal
We will seek further information, The DoD confirmed that the 18 sites activities in those areas that would
including public comment and are owned or controlled by the DoD, likely undergo ESA section 7
information from other Federal identified the types of military activities consultation. We also considered the
agencies, on important and relevant that take place in the areas, and high priority placed on national
aspects of this economic analysis to provided an assessment as to whether security, the potential for critical habitat
better understand economic impacts designation of critical habitat would designation to have some impact on
military readiness, and the fact that, comments or suggestions from the and parties to give comments, exchange
collectively, these areas represent public, other concerned governments information and opinions, and engage in
relatively small percentages of the total and agencies, the scientific community, a constructive dialogue concerning this
habitat and none of them are located in industry, or any other interested party proposed rule. We encourage the
Area 1, the core summer area. Based on concerning this proposed rule. public’s involvement in such ESA
our consideration of these factors, we Comments particularly are sought matters. Based on the level of public
concluded that the national security concerning: interest in Southern Resident killer
benefits of exclusion outweigh the (1) Maps and specific information whales, public meetings have been
conservation benefits of designation for describing the amount, distribution, and scheduled for July 12, 2006, 7–9 p.m.,
each of the 18 sites, and we are not use type (e.g., feeding, migration, at the Seattle Aquarium, Seattle, WA
proposing to designate these DoD sites resting) of Southern Resident killer and for July 13, 2006, 7–9 p.m., at the
as critical habitat. whales in inland and coastal waters, Whale Museum, Friday Harbor, WA.
including shallow areas with less than Requests for additional public hearings
Other Relevant Impacts
20 feet (6.1 m) of water; must be made in writing (see
We did not identify other relevant (2) Information on the identification, ADDRESSES) by July 31, 2006.
impacts of designation beyond location, and quality of physical or
economic impacts and impacts on biological features which may be Peer Review
national security. In this proposed rule, essential to the conservation of OMB issued its Final Information
we are seeking information on such Southern Resident killer whales, Quality Bulletin for Peer Review on
impacts. including information on sound as a December 16, 2004. The Bulletin went
Critical Habitat Designation PCE; into effect June 16, 2005, and generally
(3) Information regarding potential requires that all ‘‘influential scientific
We are proposing to designate impacts of designating any particular information’’ disseminated on or after
approximately 2,564 square miles (6,641 area, including the types of Federal that date be peer reviewed. A scientific
km) of marine habitat within the area activities that may trigger an ESA document supports this proposal to
occupied by Southern Resident killer section 7 consultation and the possible designate critical habitat for Southern
whales in Washington. Although areas modifications that may be required of Resident killer whales—a draft
with water less than 20 feet (6.1 meters) those activities as a result of section 7 Biological Report (NMFS, 2006a), which
deep are not proposed for critical consultation. In particular, we are is available on our Web site (see
habitat, these shallow areas have not seeking information on water quality ADDRESSES). We obtained independent
been subtracted from the estimate of management activities that may trigger peer review of this document and
square mileage, so it is an overestimate. section 7 consultation, potential incorporated the peer review comments
The proposed areas are occupied and modifications of those activities, and into the document prior to its
contain physical or biological features estimated costs of those modifications; dissemination in support of this
that are essential to the conservation of (4) Information regarding the benefits rulemaking. A draft Economic Analysis
the species and that may require special of designating any particular area of the (NMFS, 2006b) that supports the
management considerations or proposed critical habitat; proposal to designate critical habitat for
protection. Some of these areas overlap (5) Information regarding the benefits Southern Resident killer whales was
with military sites, which are not of excluding particular areas from the also peer reviewed and is available on
proposed for designation because they critical habitat designation; our Web site (see ADDRESSES).
were determined to have national (6) Current or planned activities in the
security impacts that outweigh the areas proposed for designation and their Required Determinations
benefit of designation and are therefore possible impacts on proposed critical Regulatory Planning and Review
being excluded under ESA section habitat; and
4(b)(2). We determined that the (7) Any foreseeable economic or other We have determined this proposed
economic benefits of exclusion of any of potential impacts resulting from the rule to be significant for purposes of
the areas do not outweigh the benefits proposed designations. E.O. 12866. A draft economic report and
of designation, and we are therefore not You may submit your comments and ESA section 4(b)(2) report document our
proposing to exclude any areas based on materials concerning this proposal by consideration of alternatives to
economic impacts. Section 4(b)(2) does any one of several methods (see rulemaking as required by this E.O.
not allow the agency to exclude areas if ADDRESSES). The proposed rule, map,
Regulatory Flexibility Act (5 U.S.C. 601
exclusion will result in extinction of the fact sheets, references, and other et seq.)
species. We are recommending materials relating to this proposal can be
exclusion of only a small percentage of found on the NMFS Northwest Region Under the Regulatory Flexibility Act
the whales’ habitat because of impacts Web site at http://www.nwr.noaa.gov/. (RFA) (5 U.S.C. 601 et seq.), as amended
to national security. Given this small We will consider all comments and by the Small Business Regulatory
percentage, we conclude that the information received during the Enforcement Fairness Act (SBREFA) of
exclusion of these areas will not result comment period in preparing the final 1996), whenever an agency publishes a
in extinction of the Southern Resident rule. Accordingly, the final decision notice of rulemaking for any proposed
killer whale DPS. No unoccupied areas may differ from this proposal. or final rule, it must prepare and make
are currently proposed for designation available for public comment a
Public Hearings regulatory flexibility analysis that
of critical habitat.
50 CFR 424.16(c)(3) requires the describes the effects of the rule on small
Public Comments Solicited Secretary to promptly hold at least one entities (i.e., small businesses, small
We request that interested persons public hearing if any person requests organizations, and small government
submit comments, information, maps, one within 45 days of publication of a jurisdictions). We have prepared an
and suggestions concerning this proposed rule to designate critical initial regulatory flexibility analysis,
proposed rule during the comment habitat. Such hearings provide the which is part of the draft Economic
period (see DATES). We are soliciting opportunity for interested individuals Analysis and available on our Web site
(NMFS, 2006b). The analysis is affect energy supply, distribution, and duty arising from participation in a
summarized below. use. E.O. 13211 requires agencies to voluntary Federal program.’’ The
A description of the reasons why this prepare Statements of Energy Effects designation of critical habitat does not
action is being considered, as well as a when undertaking any action that impose a legally binding duty on non-
statement of the objectives of, and legal promulgates or is expected to lead to the Federal government entities or private
basis for, this proposed rule is provided promulgation of a final rule or parties. Under the ESA, the only
earlier in the preamble and is not regulation that (1) is a significant regulatory effect is that Federal agencies
repeated here. This proposed rule will regulatory action under E.O. 12866 and must ensure that their actions do not
not impose any recordkeeping or (2) is likely to have a significant adverse destroy or adversely modify critical
reporting requirements and will not effect on the supply, distribution, or use habitat under section 7. While non-
duplicate, overlap, or conflict with any of energy. Federal entities which receive Federal
other laws or regulations. We have considered the potential funding, assistance, permits or
At the present time, insufficient impacts of this action on the supply, otherwise require approval or
information exists regarding the cost distribution, or use of energy and find authorization from a Federal agency for
structure and operational procedures the designation of critical habitat will an action may be indirectly impacted by
and strategies in the sectors that may be not have impacts that exceed the the designation of critical habitat, the
directly impacted by the potential thresholds identified above (NMFS, legally binding duty to avoid
critical habitat designation. Further, 2006b). destruction or adverse modification of
significant uncertainty exists regarding critical habitat rests squarely on the
the activities that may trigger an ESA Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.) Federal agency. Furthermore, to the
section 7 consultation or how those extent that non-Federal entities are
activities may be modified as a result of In accordance with the Unfunded indirectly impacted because they
consultation. Bearing in mind these Mandates Reform Act, NMFS makes the receive Federal assistance or participate
limitations, we considered which of the following findings: in a voluntary Federal aid program, the
potential economic impacts we (a) This proposed rule will not Unfunded Mandates Reform Act would
analyzed might affect small entities. produce a Federal mandate. In general, not apply; nor would critical habitat
These estimates should not be a Federal mandate is a provision in shift the costs of the large entitlement
considered exact estimates of the legislation, statute or regulation that programs listed above to state
impacts of potential critical habitat to would impose an enforceable duty upon governments.
individual businesses. state, local, tribal governments, or the (b) Due to the prohibition against take
There are 344 entities engaged in private sector and includes both of this species both within and outside
fishing activities in the region, 332 of ‘‘Federal intergovernmental mandates’’ of the designated areas, we do not
which are considered ‘‘small entities.’’ and ‘‘Federal private sector mandates.’’ anticipate that this proposed rule will
Assuming reductions in catch, the These terms are defined in 2 U.S.C. significantly or uniquely affect small
annual impact across all regulated 658(5)–(7). ‘‘Federal intergovernmental governments. As such, a Small
fishers may range from $1 million for a mandate’’ includes a regulation that Government Agency Plan is not
5 percent reduction in catch to $10.1 ‘‘would impose an enforceable duty required.
million for a 50 percent reduction. upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a Takings
Closing particular catch areas would
have impacts ranging from $29,000 to condition of Federal assistance.’’ It also In accordance with E.O. 12630, the
$7.1 million, depending on the Catch excludes ‘‘a duty arising from proposed rule does not have significant
Area closed. participation in a voluntary Federal takings implications. A takings
Although ESA section 7 consultations program,’’ unless the regulation ‘‘relates implication assessment is not required.
may also occur on water quality to a then-existing Federal program The designation of critical habitat
management activities, at this time it is under which $500,000,000 or more is affects only Federal agency actions.
too speculative to estimate the type and provided annually to state, local, and Private lands do not exist within the
number of activities and the potential tribal governments under entitlement proposed critical habitat and therefore
modifications that could result from a authority,’’ if the provision would would not be affected by this action.
consultation. ‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or Federalism
The RFA, as amended by SBREFA,
requires us to consider alternatives to otherwise decrease, the Federal In accordance with E.O. 13132, this
the proposed regulation that will reduce Government’s responsibility to provide proposed rule does not have significant
the impacts to small entities. We funding’’ and the state, local, or tribal federalism effects. A federalism
considered and rejected the alternative governments ‘‘lack authority’’ to adjust assessment is not required. In keeping
of not designating critical habitat for accordingly. (At the time of enactment, with Department of Commerce policies,
Southern Resident killer whales because these entitlement programs were: we request information from, and will
such an approach does not meet the Medicaid; Aid to Families with coordinate development of this
legal requirements of the ESA. We also Dependent Children work programs; proposed critical habitat designation
rejected an alternative in which some or Child Nutrition; Food Stamps; Social with, appropriate state resource
all of the critical habitat areas are Services Block Grants; Vocational agencies in Washington. The proposed
excluded under the section 4(b)(2) Rehabilitation State Grants; Foster Care, designation may have some benefit to
authority because we did not find that Adoption Assistance, and Independent state and local resource agencies in that
the economic benefits of exclusion Living; Family Support Welfare the areas essential to the conservation of
outweigh the conservation benefits of Services; and Child Support the species are more clearly defined,
designation. Enforcement.) ‘‘Federal private sector and the PCEs of the habitat necessary for
mandate’’ includes a regulation that the survival of the Southern Resident
E.O. 13211 ‘‘would impose an enforceable duty killer whales are specifically identified.
On May 18, 2001, the President issued upon the private sector, except (i) a While making this definition and
an E.O. on regulations that significantly condition of Federal assistance; or (ii) a identification does not alter where and
what federally sponsored activities may fiduciary standards of due care with marine areas of Puget Sound,
occur, it may assist local governments in respect to Indian lands, tribal trust Washington, within the following
long-range planning (rather than waiting resources, and the exercise of tribal counties: Clallam, Jefferson, King,
for case-by-case ESA section 7 rights. E.O. 13175—Consultation and Kitsap, Island, Mason, Pierce, San Juan,
consultations to occur). Coordination with Indian Tribal Skagit, Snohomish, Thurston, and
Governments—outlines the Whatcom. Critical habitat includes all
Civil Justice Reform responsibilities of the Federal waters deeper than 20 feet (6.1 m)
In accordance with E.O. 12988, the Government in matters affecting tribal relative to a contiguous shoreline
Department of Commerce has interests. delimited by the line of extreme high
determined that this proposed rule does None of the proposed critical habitat water in each of the following areas:
not unduly burden the judicial system occurs on tribal lands. However,
proposed critical habitat does overlap (1) Summer Core Area: All U.S.
and meets the requirements of sections
with Usual and Accustomed hunting marine waters in Whatcom and San
3(a) and 3(b)(2) of the E.O. We are
and fishing grounds. The proposed Juan counties; and all marine waters in
proposing to designate critical habitat in
designation of critical habitat for Skagit County west and north of the
accordance with the provisions of the
Southern Resident killer whales has the Deception Pass Bridge (Highway 20)
ESA. This proposed rule uses standard
potential to affect tribal trust resources, (48°24′ 25″ N./122°38′35″ W.)
property descriptions and identifies the
PCEs within the designated areas to particularly in relation to salmon, an (2) Puget Sound Area: All marine
assist the public in understanding the important tribal resource and PCE for waters in Island County east and south
habitat needs of Southern Resident the whales. We will continue to consult of the Deception Pass Bridge (Highway
killer whales. with affected tribes regarding this 20) (48°24′ 25″ N./122°38′35″ W.), and
proposal to designate critical habitat. east of a line connecting the Point
Paperwork Reduction Act of 1995 (44 Wilson Lighthouse (48°8′39″ N./
U.S.C. 3501 et seq.) References Cited
122°45′12″ W.) and a point on Whidbey
This proposed rule does not contain A complete list of all references cited Island located at 48°12′30″ N./
new or revised information collection in this rulemaking can be found on our 122°44′26″ W.; all marine waters in
for which OMB approval is required Web site at http://www.nwr.noaa.gov/ Skagit County east of the Deception Pass
under the Paperwork Reduction Act. and is available upon request from the Bridge (Highway 20) (48°24′25″ N./
This proposed rule will not impose NMFS office in Seattle, Washington (see 122°38′35″ W.); all marine waters of
recordkeeping or reporting requirements ADDRESSES.) Jefferson County east of a line
on state or local governments, List of Subjects in 50 CFR Part 226 connecting the Point Wilson Lighthouse
individuals, businesses, or (48°8′39″ N./122°45′12″ W.) and a point
organizations. An agency may not Endangered and threatened species. on Whidbey Island located at latitude
conduct or sponsor, and a person is not Dated: June 7, 2006. 48°12′30″ N./122°44′26″ W., and north
required to respond to, a collection of William T. Hogarth, of the Hood Canal Bridge (Highway 104)
information unless it displays a Assistant Administrator for Fisheries, (47°51′36″ N./122°37′23″ W.); all marine
currently valid OMB control number. National Marine Fisheries Service. waters in eastern Kitsap County east of
For the reasons set out in the the Hood Canal Bridge (Highway 104)
National Environmental Policy Act of
preamble, we propose to amend part (47°51′36″ N./122°37′23″ W.); all marine
1969 (NEPA)
226, title 50 of the Code of Federal waters (excluding Hood Canal) in
NMFS has determined that an Regulations as set forth below: Mason County; and all marine waters in
environmental analysis as provided for King, Pierce, Snohomish, and Thurston
under NEPA for critical habitat PART 226—[AMENDED] counties.
designations made pursuant to the ESA
1. The authority citation of part 226 (3) Strait of Juan de Fuca Area: All
is not required. See Douglas County v.
continues to read as follows: U.S. marine waters in Clallam County
Babbitt, 48 F.3d 1495 (9th Cir. 1995),
east of a line connecting Cape Flattery,
cert. denied, 116 S.Ct. 698 (1996). Authority: 16 U.S.C. 1533.
Washington (48°23′10″ N./124°43′32″
Government-to-Government 2. Add § 226.206, to read as follows: W.), Tatoosh Island, Washington
Relationship With Tribes § 226.206 Critical habitat for the Southern (48°23′30″ N./124°44′12″ W.), and
The long-standing and distinctive Resident killer whale (Orcinus orca). Bonilla Point, British Columbia
relationship between the Federal and Critical habitat is designated for the (48°35′30″ N./124°43′00″ W.); all marine
tribal governments is defined by Southern Resident killer whale as waters in Jefferson and Island counties
treaties, statutes, executive orders, described in this section. The textual west of the Deception Pass Bridge
judicial decisions, and agreements, descriptions of critical habitat in this (Highway 20) (48°24′25″ N./122°38′35″
which differentiate tribal governments section are the definitive source for W.), and west of a line connecting the
from the other entities that deal with, or determining the critical habitat Point Wilson Lighthouse (48°8′39″ N./
are affected by, the Federal Government. boundaries. The overview map is 122°45′12″ W.) and a point on Whidbey
This relationship has given rise to a provided for general guidance purposes Island located at 48°12′30″ N./
special Federal trust responsibility only, and not as a definitive source for 122°44′26″ W.
involving the legal responsibilities and determining critical habitat boundaries. (b) An overview map of proposed
obligations of the United States toward (a) Critical Habitat Boundaries. critical habitat for Southern Resident
Indian Tribes and the application of Critical habitat includes three specific killer whales follows.
EP15JN06.055</GPH>
(c) Primary Constituent Elements. The of Defense, or designated for its use, in (12) Admiralty Inlet naval restricted
primary constituent elements essential the State of Washington: area;
for conservation of the Southern (1) Naval Undersea Warfare Center, (13) Port Gardner Naval Base
Resident killer whales are: Keyport; restricted area;
(1) Water quality to support growth (2) Naval Ordnance Center, Port (14) Port Orchard Passage naval
and development; Hadlock (Indian Island);
(2) Prey species of sufficient quantity, restricted area;
(3) Naval Fuel Depot, Manchester;
quality and availability to support (4) Naval Air Station, Whidbey Island; (15) Sinclair Inlet naval restricted
individual growth, reproduction and (5) Naval Station, Everett; area;
development, as well as overall (6) Naval Hospital Bremerton; (16) Carr Inlet naval restricted area;
population growth; and (7) Fort Lewis (Army); (17) Port Townsend/Indian Island/
(3) Passage conditions to allow for (8) Pier 23 (Army); Walan Point naval restricted area; and
migration, resting, and foraging. (9) Puget Sound Naval Ship Yard; (18) Crescent Harbor Explosive
(d) Sites owned or controlled by the (10) Strait of Juan de Fuca naval air-
Ordnance Units Training Area.
Department of Defense. Critical habitat to-surface weapon range, restricted area;
does not include the following areas (11) Strait of Juan de Fuca and [FR Doc. 06–5439 Filed 6–14–06; 8:45 am]
owned or controlled by the Department Whidbey Island naval restricted areas; BILLING CODE 3510–22–P

Proposed Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 Southern Resident Killer Whale

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Proposed Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 Southern Resident Killer Whale

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Federal Register / Vol. 71, No.

115 / Thursday, June 15, 2006 / Proposed Rules 34571

TABLE 2.—IMPACT OF DESIGNATION—RELATIVE WEIGHTS FOR EACH TYPE OF ACTIVITY

Likely (high weight) Potential Unlikely

Likelihood of change occurring as a result of section 7 consultation

TABLE 2.—IMPACT OF DESIGNATION—RELATIVE WEIGHTS FOR EACH TYPE OF ACTIVITY—Continued

Likely (high weight) Potential Unlikely

Jeopardy .................... .................................... .................................... —Changes in oil spill

TABLE 3.—BENEFIT OF DESIGNATION FOR AREA 1

Water quality ........................ Oil spills ................................ High ...................................... Low.

TABLE 4.—BENEFIT OF DESIGNATION FOR AREA 2

Water quality ........................ Oil spills ................................ High ...................................... Low.

TABLE 5.—BENEFIT OF DESIGNATION FOR AREA 3

Water quality ........................ Oil spills ................................ High ...................................... Low.

TABLE 6.—ECONOMIC BENEFIT OF EXCLUSION FOR AREA 1

Activity type Type of impact Weight Range

Total ............................................................... ............................................................................... ....................................... 305–3,055

TABLE 7.—ECONOMIC BENEFIT OF EXCLUSION FOR AREA 2

Activity type Type of impact Weight Range

Total ............................................................... ............................................................................... ....................................... 466–4,660

TABLE 8.—ECONOMIC BENEFIT OF EXCLUSION FOR AREA 3

Activity type Type of impact Weight Range

Total ............................................................... ............................................................................... ....................................... 236–2,357

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