# Endangered and Threatened Wildlife and Plants; Revision of Critical Habitat for the Southern Resident Killer Whale Distinct Population Segment

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-16094

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 2, 2021
- **Citation:** 86 FR 41668

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 210719-0149]
RIN 0648-BH95
Endangered and Threatened Wildlife and Plants; Revision of Critical Habitat for the Southern Resident Killer Whale Distinct Population Segment

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

We, NMFS, issue a final rule to revise the critical habitat designation for the Southern Resident killer whale (
Orcinus orca
) distinct population segment (DPS) under the Endangered Species Act (ESA) by designating six additional coastal critical habitat areas along the U.S. West Coast. Specific newly designated areas along the U.S. West Coast include 15,910 square miles (mi
2
) (41,207 square kilometers (km
2
)) of marine waters between the 20-feet (ft) (6.1-meter (m)) depth contour and the 656.2-ft (200-m) depth contour from the U.S. international border with Canada south to Point Sur, California. We have excluded one area, the Quinault Range Site (including a 10-km buffer around a portion of the site), comprising 1,400.4 mi
2
(3627 km
2
), from the critical habitat designation because we have determined that the benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in extinction of the species.

DATES:

This rule is effective September 1, 2021.

ADDRESSES:

The final rule, maps, and other supporting documents (Economic Report, ESA Section 4(b)(2) Report, and Biological Report) can be found on the NMFS website at
https://www.fisheries.noaa.gov/action/critical-habitat-southern-resident-killer-whale.

FOR FURTHER INFORMATION CONTACT:

Lynne Barre, NMFS West Coast Region, 206-526-4745; or Lisa Manning, NMFS, Office of Protected Resources, 301-427-8466.

SUPPLEMENTARY INFORMATION:

Background

NMFS listed the Southern Resident killer whale DPS as endangered under the ESA in 2005 (70 FR 69903; November 18, 2005). In 2006, NMFS designated critical habitat for the Southern Resident killer whale DPS in inland waters of Washington State (71 FR 69054; November 29, 2006). The designated critical habitat consists of three areas: (1) The Summer Core Area in Haro Strait and waters around the San Juan Islands, (2) Puget Sound Area, and (3) the Strait of Juan de Fuca Area. Together, these areas comprise approximately 2,560 mi
2
(6,630 km
2
) of marine habitat.

The 2006 final rule designating critical habitat identified three habitat features essential to the conservation of the DPS: (1) Water quality to support growth and development; (2) prey species of sufficient quantity, quality, and availability to support individual growth, reproduction, and development, as well as overall population growth; and (3) passage conditions to allow for migration, resting, and foraging.

On January 21, 2014, we received a petition from the Center for Biological Diversity (CBD) requesting revisions to the critical habitat designation for the Southern Resident killer whale DPS. CBD requested we revise critical habitat to include “inhabited marine waters along the West Coast of the United States that constitute essential foraging and wintering areas,” specifically the region between Cape Flattery, Washington, and Point Reyes, California, extending from the coast to a distance of 47.2 mi (76 km) offshore.

On April 25, 2014, we announced in our 90-day finding that the petition presented substantial scientific information indicating that a revision to the current critical habitat designation may be warranted and requested public comments (79 FR 22933). Due to new information available regarding habitat use by Southern Resident killer whales, we decided a revision to critical habitat was warranted, and we announced our intention to proceed toward a proposed rule in the 12-month finding (80 FR 9682; February 24, 2015).

CBD filed a complaint in August 2018 with the U. S. District Court for the Western District of Washington at Seattle seeking an order from the Court establishing deadlines for NMFS to revise the Southern Resident killer whale critical habitat designation. A court-approved settlement agreement was filed on April 17, 2019 (
Center for Biological Diversity
v.
National Marine Fisheries Service,
2:18-cv-01201-RSM (W.D. Wash.)). The settlement agreement stipulated that NMFS must submit a proposed rule revising critical habitat to the Office of the Federal Register by September 6, 2019.

Based on the recommendations provided in the Draft Biological Report, the Initial Regulatory Flexibility Analysis (IRFA) and ESA section 4(b)(2) analysis (which considers exclusions to critical habitat based on economic, national security and other relevant impacts), we published a proposed rule on September 19, 2019 (84 FR 49214), to designate marine waters between the 20-ft (6.1-m) depth contour and the 656.2-ft (200-m) depth contour from the U.S. international border with Canada south to Point Sur, California, as Southern Resident killer whale critical habitat. In accordance with the definition of critical habitat under the ESA, this area contained physical or biological features essential to the conservation of the species and which may require special management considerations or protections. The proposed rule included background information on Southern Resident killer whale biology and habitat use. That background information is not included here but can be accessed by referring to the proposed rule (84 FR 49214; September 19, 2019) and supporting documents (at
https://www.fisheries.noaa.gov/west-coast/endangered-species-conservation/critical-habitat-southern-resident-killer-whales
).

In the proposed rule, we described the physical or biological features essential to the conservation of Southern Resident killer whales as (1) water quality to support growth and development; (2) prey species of sufficient quantity, quality, and availability to support individual growth, reproduction, and development, as well as overall population growth; and (3) passage conditions to allow for migration, resting, and foraging. We requested public comments through December 18, 2019, and held three public hearings. For a complete description of our proposed action, we refer the reader to the proposed rule (84 FR 49214; September 19, 2019). The proposed rule and supporting documents included information on the natural history of Southern Resident killer whales, which has been updated in the Final Biological Report (NMFS 2021a).

Statutory and Regulatory Background for Critical Habitat Designations

The ESA defines critical habitat under section 3(5)(A) as the (1) specific areas within the geographical area occupied by the species at the time it is listed, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the

Secretary of Commerce (Secretary) that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). Conservation is defined in section 3(3) of the ESA as to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA provides that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. Our regulations provide that critical habitat shall not be designated within foreign countries or in other areas outside U.S. jurisdiction (50 CFR 424.12(g)).

Section 4(a)(3)(B) prohibits designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD) or designated for its use, that are subject to an Integrated Natural Resources Management Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is designated.

Section 4(b)(2) of the ESA requires us to designate critical habitat for threatened and endangered species on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. Pursuant to this section, the Secretary may exclude any area from critical habitat upon determining that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat. However, the Secretary may not exclude areas if this will result in the extinction of the species.

Once critical habitat is designated, section 7(a)(2) of the ESA requires Federal agencies to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify that habitat (16 U.S.C. 1536(a)(2)). This requirement is in addition to the section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to jeopardize the continued existence of ESA-listed species. Specifying the geographic location of critical habitat also facilitates implementation of section 7(a)(1) of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the ESA. Critical habitat requirements do not apply to citizens engaged in actions on private land that do not involve a Federal agency. However, designating critical habitat can help focus the efforts of other conservation partners (
e.g.,
state and local governments, individuals, and non-governmental organizations).

Summary of Changes From the Proposed Rule

We evaluated the comments and information received from the public during the public comment period and at public hearings. Based on our consideration of these comments and information and our reconsideration of issues discussed in the proposed rule, the final rule and supporting documents include one substantive change to the exclusions for national security impacts, as well as inclusion of clarifications and new information and references in response to public comments. Below we briefly summarize these changes and clarifications, which are discussed in further detail in the relevant responses to comments and other sections of this final rule.

After considering public comments received and the best scientific information available, the final rule reduces the extent of the excluded 10-km buffer around the Quinault Range Site (QRS) where the QRS overlaps with the Olympic Coast National Marine Sanctuary (OCNMS).

In accordance with section 4(b)(2) of the ESA, our proposed rule excluded the QRS based on national security impacts. It also excluded a 10-km buffer around the site, calculated by the Navy based on the full extent to which noise-related impacts on fish species are estimated to occur from the use of the largest explosives the Navy foresees testing within the QRS. We received numerous public comments opposing the exclusion and one comment pointing out that part of the QRS overlaps with the OCNMS.

After considering these comments and requesting additional information from the Navy regarding planned activities in the OCNMS, we have reduced the extent of the 10-km buffer being excluded, where the QRS overlaps with the OCNMS. As detailed in the Section 4(b)(2) Report (NMFS 2021b), we found the benefits of designating critical habitat for Southern Resident killer whales within this portion of the buffer are not outweighed by national security impacts of including that portion. This change represents a reduction in the size of the area being excluded from critical habitat compared to the proposed rule. The proposed exclusion area encompassed approximately 1,687.9 mi
2
(4,371.5 km
2
) of potential critical habitat, and the final exclusion area encompasses 1,400.4 mi
2
(3627 km
2
) of potential critical habitat.

In addition to the one substantive change in the final rule, we also updated our supporting documents with additional information and clarifications based on the public comments, including updates related to sound, inclusion of newly available references, and clarifications related to our economic analysis. A number of comments requested that we include sound as a fourth essential feature or more explicitly describe how communication space is encompassed within the prey and passage essential features. After carefully considering the studies cited by commenters seeking to include sound as a fourth essential feature, we are still not able to identify specific in-water sound levels or thresholds for communication, behavioral or displacement impacts on Southern Resident killer whales (as requested by CBD) so we consider effects of sound qualitatively (see further explanation in section `Physical and Biological Features Essential to Conservation' and in the Biological Report, NMFS 2021a, section V.B.4). Because potential impacts of sound are already addressed through qualitative section 7 analyses of the prey and passage features, as well as analyses of effects of sound on individual whales themselves, we have not included sound as a separate feature. However, in response to the concerns expressed in the comments, we have added more detail to the Final Biological Report (NMFS 2021a, sections V.B.2, V.B.3, and V.B.4) to clarify that the effects of anthropogenic noise on communication and social behavior are and will continue to be evaluated through the prey and passage essential features, as well as analyses of effects to individual whales. Activities producing sound that impact Southern Resident prey availability (including access to prey and impacts to communication for prey sharing) or safe and unrestricted passage (including passage necessary for social behavior) are considered activities that may require special management considerations under section 7 of the ESA. Finally, we also updated the Final Biological Report to include information on how this approach is compatible with the approaches used to address sound for other listed species: Cook Inlet beluga whale DPS, the Main Hawaiian Islands insular false killer whale DPS, and listed humpback whale

DPSs. Also, see the response to comment 8 regarding sound.

Multiple commenters provided information and citations for recent scientific studies not included in the proposed rule. In response, we have added to the Final Biological Report (NMFS 2021a) descriptions of and reference to multiple new studies that were published since the publication of the proposed critical habitat rule.

The Final Economic Analysis (FEA) in the Final Economic Report (IEc 2021) includes updates and clarifications from the draft version in response to public comments. Specifically, the analysis incorporates new information made available after development of the Draft Economic Analysis (DEA) on the Pacific Fishery Management Council (PFMC)'s ad-hoc Southern Resident Killer Whale Working Group, and publication of its Final Draft Risk Assessment for Salmon Fishery Management Plan (FMP) Impacts to Southern Resident Killer Whales (PFMC 2020). In response to public comment, the Sacramento District has been added to the list of United States Army Corps of Engineers (USACE) districts that manage activities that may be affected by the expansion (section 2.10, IEc 2021). The FEA (IEc 2021) also incorporates a Final Regulatory Flexibility Analysis (FRFA) and updates the timeframe and dollar year of the analysis to reflect the present schedule of the final rule. Therefore, differences in anticipated costs between the DEA and the FEA reflect an update to the timeframe of the analysis and the dollar year, as opposed to changes in the costs of consultation. No substantive changes were made between the IRFA and the Final Regulatory Flexibility Analysis (FRFA) as changes incorporated in the final rule do not affect the economic analysis and conclusions.

Summary of Comments and Responses

We solicited comments on the proposed designations and exclusions as well as the documents supporting the proposed rulemaking. To facilitate public participation, the proposed rule was made available on our website and comments were accepted via standard mail and through the Federal eRulemaking portal. We also solicited public comments at three public hearings, which were held on November 4, 2019, in Santa Cruz, CA; November 5, 2019, in Newport, OR; and November 6, 2019, in Seattle, WA. The public comment period closed on December 18, 2019.

We received 218 unique comments, including 180 in support, 22 opposed, and 16 that provided information and/or requested changes to the rule without stating support or opposition. We have considered all public comments, and provide responses to all substantive issues raised by commenters that are relevant to the proposed revision of Southern Resident killer whale critical habitat. We have not responded to comments or concerns outside the scope of this rulemaking. Comments were received from a range of sources including: Global and local environmental non-profit groups, fishing industry associations, local and state government, state agencies, other Federal agencies (
e.g.,
the Marine Mammal Commission, NOAA's National Ocean Service National Marine Sanctuaries Program, USACE), merchant shipping associations, trade associations, scientists and scientific groups, university students, elementary school students, educational groups, aquariums, legal groups, and individual citizens. The majority of individual concerned citizens were in support of the expanded critical habitat designation. The Marine Mammal Commission generally agreed with NMFS's determinations and supports the geographic boundaries we proposed.

Criteria for Designating Critical Habitat

Comment 1:
One commenter felt that the revised critical habitat was not prudent, stating that it would not result in any new conservation measures or protections and, therefore, would not provide benefits to the species. The commenter referred to 16 U.S.C. 1533(a)(3) to argue that NMFS must demonstrate that designation of critical habitat designation is prudent, and cited 50 CFR 424.12(a)(1)(ii) (subsequently revised in 2019) to argue that designation is not prudent when it “would not be beneficial to the species.”

Response:
The ESA requires that NMFS designate critical habitat to the maximum extent prudent and determinable (16 U.S.C. 1533(a)(3)). Contrary to the interpretation of the commenter, it does not require that NMFS demonstrate prudence as a condition for designating critical habitat.

The proposed and final rules to revise critical habitat for Southern Resident killer whales follow previous ESA implementing regulations, as the most recent revisions to the implementing regulations, which became effective on September 26, 2019, only apply to classification and critical habitat rules for which a proposed rule was published after September 26, 2019 (see 84 FR 45020; August 27, 2019). The proposed rule for the revision to Southern Resident killer whale critical habitat (84 FR 49214) was published on September 19, 2019. With respect to critical habitat designations, the previous ESA implementing regulations at 50 CFR 424.12(a)(1)(ii) stated that a designation of critical habitat is not prudent when such a designation is not beneficial to the species. In determining if designation would not be beneficial, NMFS may consider, among other factors, whether the present or threatened destruction, modification, or curtailment of the habitat or range of a species is not a threat to the species, or if any areas meet the definition of critical habitat.

In general, “not prudent” determinations are uncommon, because most species are listed under ESA, at least in part, due to impacts to their habitat or curtailment of their range (see 81 FR 7413; February 11, 2016 response to Comment 61), and because there is an inherent benefit of critical habitat designation. Most “not prudent” findings are a result of a determination that designating habitat would increase harm or threats to the species, such as species highly prized for collection where identifying locations would render the species vulnerable to collection. Southern Residents killer whales were listed as endangered, in part, due to modification to their habitat from vessel traffic, contaminants, and changes to prey availability (see 70 FR 69903; November 18, 2005). If areas do not meet the definition of critical habitat, it is also permissible to not designate critical habitat; however, specific areas within the geographical area occupied by Southern Resident killer whales that we are designating, do meet the definition of critical habitat (
i.e.,
they contain the essential features and may require special management considerations or protection).

The commenter's statement that the proposed critical habitat would not result in any new conservation measures or protections refers to our findings in the DEA (IEc 2019) that there are no particular projects or activities for which NMFS considers it likely that section 7 consultation on coastal critical habitat for the killer whales would result in different conservation efforts than section 7 consultation without the revised critical habitat. However, this finding does not mean the critical habitat designation provides no benefits to the species. We find there are benefits and disagree with the commenter. First, although we do not consider additional conservation efforts from section 7 consultations to be likely, we cannot rule out that some modifications may result from section 7 consultations, and

such potential modifications would provide conservation value to the species. Secondly, although the direct benefit that the statute provides is through section 7 consultation, designating critical habitat may carry additional benefits to the species beyond the protections from section 7(a)(2) consultation. Specifically, these additional benefits, outlined in the Final ESA Section 4(b)(2) Report (NMFS 2021b), include facilitating implementation of section 7(a)(1) of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the ESA. Furthermore, other additional benefits include the generation of more detailed information about the status of Southern Resident killer whales, increasing education and awareness of parties involved in section 7 consultations and the public, which can lead to activities that benefit the killer whales or their habitat.

We continue to find that the expanded critical habitat is prudent.

Geographical Areas Occupied by the Species

Comment 2:
We received several comments regarding the proposal to designate critical habitat in waters deeper than 20 ft (6.1 m) based on extreme high water. Some commenters felt that we should include waters shallower than 20 ft (6.1 m) because nearshore areas support killer whale prey, making them essential to the conservation of Southern Resident killer whales. The importance of these habitats for salmon and forage fish was the predominant argument by commenters for including shallow waters as critical habitat for Southern Resident killer whales.

Commenters generally acknowledged that many nearshore areas are outside the geographical area occupied by the species, but viewed them as essential for the conservation of the species because they provide critical habitat to the Southern Resident food chain, including juvenile salmon and their forage fish prey. Two commenters argued the unoccupied nearshore areas should be designated as critical habitat because they contain the essential feature of prey species (of sufficient quantity, quality and availability to support individual growth, reproduction and development, as well as overall population growth). One believed that limiting critical habitat to occupied areas is not adequate to ensure the conservation of the species, while another felt that designating these areas as critical habitat would help support salmon and killer whale resilience to climate change impacts. While most comments on this topic requested the inclusion of all nearshore areas in the critical habitat designation, a few requested the inclusion of just those nearshore, as well as estuarine, and freshwater areas associated with Chinook salmon rivers for stocks identified by NMFS and the Washington Department of Fish and Wildlife (WDFW) as priority stocks for Southern Resident killer whales.

One commenter argued that killer whales do occupy the waters shallower than 20 ft in depth, citing observational data from shore-based sightings of Southern Resident killer whales in the San Juan Islands foraging and socializing in shallow waters when transiting the area. The commenter argued that these waters are accessible to the killer whales at high tide, and that the shallow waters may constitute “active space” around individual whales in which they can interact with each other and their prey. They argued that nearshore waters should be designated as critical habitat because activities taking place in nearshore waters could adversely modify adjacent deeper waters within the proposed critical habitat. Lastly, for the purposes of regulatory simplicity, one commenter sought to align the critical habitat boundary with the high water line regulatory boundary used by the USACE.

Response:
The final critical habitat designation is consistent with the proposed rule and does not include waters shallower than 20 ft (6.1 m) based on mean high water. Similar to the critical habitat for inland waters, there are little to no data to support that the whales use the shallow areas regularly, or could physically access some areas, even during high tide conditions.

The limited information providing new observations of Southern Resident killer whale use of shallow waters in the San Juan Islands we received is not sufficient to consider all shallow areas as occupied or essential to the conservation of Southern Resident killer whales. The observations provided represent rare occurrences and were located in inland waters rather than outer coastal waters. Also, based on data from four satellite-tagged Southern Resident killer whales, only less than 1 percent of the whales' outer coastal locations were in depths less than 6 m (Northwest Fisheries Science Center (NWFSC) unpubl. data, see the Biological Report, NMFS 2021a). Satellite-based locations are not exact, and we don't know the tidal conditions for these observations. We are not revising the inland waters critical habitat designation at this time, and neither the bathymetry of the San Juan Islands nearshore areas nor the unique observations of Southern Resident killer whales in these areas would be representative of outer coastal areas.

Regulatory alignment with USACE or other management boundaries is not a basis for designating critical habitat in unoccupied areas. Additionally, extreme high water data for delineating boundaries within geographic information system (GIS) software along the coast was not readily available for many locations. Therefore, similar to the proposed rule, we continue to use the 20-ft (6.1-m) depth relative to mean high water as the eastern boundary of coastal critical habitat.

Not designating waters shallower than 20 ft (6.1 m) (based on mean high water) as critical habitat does not preclude consultation on activities that occur in these shallow nearshore or inland freshwater areas. ESA section 7 requirements that Federal agencies ensure their actions are not likely to destroy or adversely modify critical habitat applies equally to actions occurring outside of designated critical habitat as to actions occurring within designated critical habitat. Furthermore, specific inland freshwater areas are designated as critical habitat for ESA-listed salmon runs (70 FR 52487; September 2, 2005 and 70 FR 52629; September 2, 2005), including certain priority Chinook runs (NMFS and WDFW 2018), and are, therefore, subject to section 7 consultations.

Specific Areas

Comment 3:
Many commenters expressed support for the proposed geographic extent of the revised critical habitat in U.S. ocean waters from Cape Flattery, Washington, south to Point Sur, California. Two commenters felt that the coastwide designation of critical habitat was too broad, and sought to limit the spatial extent of the designation to areas of regular or consistent use. They disputed the southern and western boundaries and proposed alternative limitations to the boundaries of the specific areas, including by time and by the locations of primary essential features. Other commenters requested inclusion of additional areas because they felt the current proposed areas were not sufficient to conserve the whales.

One commenter referred to 16 U.S.C. 1532(5)(C), noting ESA directives that critical habitat not include the entire geographical area which can be occupied by the listed species, except in special circumstances. They referred to

the 1978 amendments to the ESA, stating that congressional intent was to curtail the practice of designating critical habitat throughout the entire range of a species. They contended that the proposed critical habitat revision for Southern Resident killer whales is overly expansive because it includes most of the geographic area occupied by the species.

Two commenters felt that critical habitat for Southern Resident killer whales should only include those areas within the species' range that are occupied on a regularly occurring or consistent basis. They contested the western and southern boundaries on the basis that areas more than 150 m deep and south of Cape Falcon are not used frequently enough by the Southern Resident killer whales to justify the designation.

Commenters expressed concerns that critical habitat designation would result in fisheries closures year-round to protect areas occupied by the Southern Resident killer whales only at certain times. They requested that the designation be temporally limited to specific periods when Southern Resident killer whales are present in the area, and that adverse modification only be considered for activities that affect the whales during the time that they occupy the areas.

One commenter sought to limit the boundaries of the specific areas based on the spatial extent of each area's primary essential feature. The commenter maintained that because we identified a primary essential feature in each specific area, the designation of critical habitat should be limited to only those spaces within each specific area where the primary essential feature is found.

Response:
This critical habitat designation is consistent with our obligations under the ESA. We are not designating the entire geographical area that can be occupied by this species, nor are we designating all areas in which Southern Resident killer whales occur. In regards to designation of unoccupied habitat areas, we considered the best available information, and we are not aware of any unoccupied areas that meet conservation needs of Southern Residents or are essential for conservation (see also response to Comment 2 regarding depth and response to Comment 5 regarding Hood Canal for additional information on areas that commenters requested including). Therefore, we have not included any unoccupied areas in the critical habitat designation. Some Alaskan waters are considered to be within the geographic area occupied by Southern Resident killer whales (see “Distribution” section in the Final Biological Report, NMFS 2021a), but we are not designating any areas in Alaska because there is only one sighting in this region and there is insufficient information about the whales' distribution, behavior, and habitat use in these areas. Also, there are limited sightings of Southern Resident killer whales at shallow depths, outside of the eastern, nearshore critical habitat boundaries or beyond the 200-m shelf isobath, outside of the western, offshore critical habitat boundaries (see Specific Areas within the Geographical Area Occupied by the Species and in NMFS 2021a), so the species is able to occupy some areas closer to or farther from shore than we are designating. Finally, Southern Resident killer whales can and do occupy Canadian waters. However, those areas are not included in the designation because they are outside of U.S. jurisdiction. Therefore, this revised critical habitat does not include all areas that can be occupied by Southern Resident killer whales.

Joint NMFS-U.S. Fish and Wildlife Service (USFWS) implementing regulations clarify that the geographical area occupied by the species may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (
e.g.
migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals; 50 CFR 424.02). They also provide that we determine specific areas that contain the physical or biological features essential to the conservation of the species within the geographical area occupied by the species (50 CFR 424.12(b)(1)(iii)). In accordance with these regulations, the areas we are designating as critical habitat, including the waters beyond 150 m in depth and at the southern end of the range in California, are both occupied and contain physical or biological features that are essential to the conservation of the species.

In our satellite tracking data, 7 percent of occurrences were beyond 150 m in depth (NMFS unpublished data, see the Biological Report, NMFS 2021a). These data indicate short duration but regular use of the area by the whales. We acknowledge that satellite-tagged whales swam within a narrower north-south corridor off the coast of California compared to the broader corridor when they were off the coasts of Washington or Oregon (Final Biological Report, NMFS 2021a, section VI.E.). However, using the 200 m depth contour consistently along the West Coast reflects the majority of the whale habitat use data and likely reflects the bathymetric conditions important to conservation including supporting life functions, such as foraging. In addition, establishing different contour lines as boundaries for different specific areas would make implementation unnecessarily complex. As in the proposed rule, we delineate the western boundary of critical habitat in coastal waters at the 200 m depth contour.

With regards to the southern extent of critical habitat in California, we provided scientific data on Southern Resident sightings in this region in the Draft Biological Report (NMFS 2019a, section IV.A.). The sightings in Area 6 (southernmost coastal critical habitat area) around Monterey Bay have been periodic across multiple years (nearly annual from 2007-2011), indicating consistent use of the area from year to year (Hanson
et al.
2017, Draft and Final Biological Reports, section VI.F.). Furthermore, given the effort it takes for the Southern Resident killer whales to get to this extreme end of their range, recurring use of the area suggests it has special value to the whales and that accessing the area is important to meet their needs. Therefore, the final rule is consistent with the proposed rule and delineates the southern boundary of critical habitat in coastal waters at Point Sur (36°18′00″ N).

Designation of critical habitat does not establish a refuge or sanctuary for the species or automatically close areas to specific activities, but rather it guides Federal agencies to consult with NMFS if their actions may affect critical habitat. In the case of commercial fisheries, as we explain in our responses to Comments 15-17 regarding Economic Impacts and in the FEA (IEc 2021), we consider it unlikely that the designation of critical habitat would result in different fishery management measures than would already be implemented for the protection of Southern Resident killer whales, endangered salmon, and other listed species.

Critical habitat is designated by area, based on where features are present in occupied areas (50 CFR 424.12(b)), rather than time, so we cannot assign a season or other temporal boundary to the designation. However, we can consider the timing of the whales presence in an action area in our section 7 consultations. In these consultations, our analysis of a Federal action's effects on critical habitat will consider the timing of a Federal action and its overlap with time periods in which Southern Resident killer whales are likely to be in the area in order to determine how conservation value of the habitat would be impacted by the Federal action.

In accordance with ESA section 3(5)(A), we delineated specific areas within the geographical area occupied by the species where the essential physical or biological features (PBFs) are found. Although we identify a primary essential feature in each specific area, all three PBFs are essential and present in all specific areas. Potential effects to all three habitat features are subject to evaluation through section 7 consultations. As such, we are not reconsidering the boundaries of specific areas based only on the primary PBFs.

Comment 4:
One commenter noted that the proposed critical habitat includes areas of Juan de Fuca Canyon that are deeper than the 200 m depth contour, and felt that these areas should be excluded from the designation because they are outside of the depth band used to define critical habitat.

Response:
As detailed in the Draft and Final Biological Reports (NMFS 2019a, 2021a), the 656.2-ft (200-m) isobath was chosen as the western (offshore) boundary of the proposed critical habitat. The narrow Juan de Fuca canyon runs roughly southeast to northwest, bisecting the newly designated critical habitat. Here, the western boundary of the critical habitat aligns with the 200-m isobath to the north and south of the canyon, crossing the deeper mouth of the canyon. The canyon's complex bathymetry, with many islands and inlets where the seafloor is shallower than 200 m, makes strict adherence to a 200-m cutoff impractical. More importantly, as noted in the Draft and Final Biological Reports, the Strait of Juan de Fuca (including the deeper waters of the canyon) is a high use area for the Southern Resident killer whales. Portions of the canyon below 200 m in depth are included in the existing critical habitat designation for inland waters, making the new critical habitat consistent with the previous designation. Therefore, the entire area is included in the designated critical habitat.

Comment 5:
One commenter requested that we include Hood Canal in the critical habitat designation. The commenter acknowledged that Southern Resident killer whales have not been documented in Hood Canal since 1995, but argued that the canal could be considered either previously occupied habitat essential to recovery of the species or occupied habitat on the basis that whales alive at the time of listing had been documented in the canal. The commenter also contended that the currently occupied habitat is inadequate for conservation, making it necessary to protect and restore areas that were previously occupied but are now unoccupied areas (even those unoccupied at the time of listing). Also, the commenter felt that efforts to improve salmon abundance in the canal would improve the quality of the habitat and result in conservation benefits when or if Southern Resident killer whales re-enter the canal.

Response:
Similar comments were submitted in response to the 2006 proposed rule to designate critical habitat for inland waters (71 FR 34571; June 15, 2006). As described in the 2006 final rule's response to comments (71 FR 69054; November 29, 2006), at that time we considered the best available data and concluded that we lacked sufficient information to either consider Hood Canal as occupied at the time of listing, or to determine that additional unoccupied habitat in Hood Canal was essential for the conservation of the species. With respect to the proposed revision to the critical habitat, the commenter did not provide new information beyond what was previously available, and we have found no additional evidence to consider Hood Canal as either occupied at the time of listing or essential for the conservation of the species.

Section 3(5)(A) of the ESA defines critical habitat as areas either occupied or not occupied by the species at the time that it is listed. For this revision to critical habitat we considered the best available information on killer whale distribution and, similar to our conclusion in 2006, we do not have sufficient data to consider Hood Canal as occupied by the species at the time of listing, nor are there available data supporting that this area is currently occupied by the species. In regards to designation of unoccupied habitat areas, we considered the best available information, and we are not aware of any unoccupied areas, including Hood Canal, that meet conservation needs of Southern Residents or are essential for their conservation. Therefore, we are not designating Hood Canal as either occupied or unoccupied critical habitat. If the whales do return to Hood Canal in response to increasing populations of prey species, we will continue to work with the local community to gather information and reevaluate the importance of Hood Canal as Southern Resident killer whale habitat.

Comment 6:
Two commenters opposed the designation of Southern Resident killer whale critical habitat in Southeast Alaska. Another commenter urged NMFS to continue gathering information about the Southern Resident killer whale's use of Alaskan waters to inform potential expansion of critical habitat in the future.

Response:
We did not propose and are not designating areas in Southeast Alaskan waters because of the limited information about the whales' distribution, behavior, and habitat use in these areas. NMFS continues to evaluate any reported sightings of killer whales in Alaska for matches to the Southern Resident killer whale DPS.

Unoccupied Areas

Comment 7:
One commenter requested that we consider further expanding the area designated as critical habitat to account for potential impacts from climate change. The commenter felt that we had not analyzed the best available science on potential climate change impacts before concluding that insufficient evidence exists to designate unoccupied areas as critical habitat.

Response:
Contrary to the commenter's claims, we thoroughly considered all available evidence regarding the potential impacts of climate change on Southern Resident killer whales and presented these findings in the Draft Biological Report (NMFS 2019a). Our guidance provides that “when designating critical habitat, NMFS will consider proactive designation of unoccupied habitat when there is adequate data to support a reasonable inference that the habitat is essential for the conservation of the species because of the function(s) it is likely to serve as climate changes” (NMFS 2016). At this time, there exists very little information regarding the potential impacts of climate change on the distribution and habitat use of Southern Resident killer whales over the longer-term, including whether or how the geographic areas occupied by the species might change. The commenter did not cite any additional research or information that would improve our understanding of unoccupied areas that would likely become essential for the conservation of the Southern Resident killer whales as climate changes. Thus, there remains insufficient evidence to identify unoccupied areas based on potential impacts from climate change. As noted in the Biological Report, it will be important to continue monitoring Southern Resident killer whales and their prey to evaluate responses to climate change and ensure appropriate habitat protections.

We also note that we have the authority to revise critical habitat designations as appropriate and in light of new information, which provides a mechanism for addressing and incorporating changing understandings

of the species' use of new areas over time (16 U.S.C. 1533(a)(3)(A)(ii)).

Essential Features

Comment 8:
A number of commenters, including those from the Marine Mammal Commission and the state of Washington, requested that we include sound as a fourth essential feature. These commenters pointed out that killer whales rely on sound to navigate, forage, mate, avoid predators, and communicate with one another, and emphasized the impacts of anthropogenic noise on the whales. Several commenters argued that there now exists sufficient information to support including sound as an essential feature, and suggested we consider new science that has emerged since the 2006 designation, and were concerned that considering sound via the prey and passage essential features does not sufficiently address communication space for social behavior, which they pointed out is fundamental to mother-offspring bonding, pod cohesion, and ultimately the health and recovery potential of the DPS. One commenter maintained that by excluding sound as an essential feature, we fail to determine whether sound may require special management considerations or protections. Others were concerned that military activities, specifically would not be adequately addressed. Several commenters emphasized that if sound is not included as an essential feature, then the rule should describe more explicitly how communication space is encompassed within the prey and passage essential features.

Some commenters felt that we did not adequately justify the apparent inconsistency between the approach for Southern Resident killer whales and the approach we took in the critical habitat designations for two other ESA-listed
odontocetes
in U.S. waters: The Cook Inlet beluga whale DPS and the Main Hawaiian Islands insular false killer whale DPS, which include sound as a feature or a characteristic of a feature. Several of these commenters also mentioned Canada's inclusion of sound as an element of critical habitat for Southern Resident killer whales in Canadian waters. They felt the approaches were contradictory, and asked for clarification to reconcile the differences.

One commenter stated their support for our determination in the proposed rule not to include sound as a fourth essential feature, noting the lack of data to support quantitative thresholds. The commenter felt that the effects of sound on the whales are more appropriately considered through the existing procedures for section 7 consultations and Marine Mammal Protection Act (MMPA) incidental take authorizations.

Response:
As stated in the proposed rule, we considered the new information on killer whale responses to anthropogenic noise and the acoustic quality of habitats for whale populations that has become available since publication of the 2006 critical habitat designation for Southern Resident killer whales. Much of this new research was presented in the Draft Biological Report supporting the critical habitat proposal and we have incorporated additional publications submitted through the comment period or that have become available in the last year in the Final Biological Report (NMFS 2021a) supporting the final rule. Contrary to the concerns of some commenters, we did not ignore the new research, which enhances our ability to consider the effects of sound on the whales' habitat through the prey and passage essential features, as well as impacts of sound in our analyses of effects to individual whales through section 7 consultations. After carefully considering the studies cited by commenters seeking to include sound as a fourth essential feature, we are still not able to identify specific quantitative in-water sound levels or thresholds for communication, behavioral or displacement impacts on Southern Resident killer whales (as requested by CBD) and we consider effects of sound qualitatively (see further explanation in this comment response, in the section `Physical and Biological Features Essential to Conservation', and in the Biological Report, NMFS 2021a, section V.B.4). Because potential impacts of sound are already addressed through qualitative section 7 analyses of the prey and passage features, as well as analyses of effects of sound on individual whales themselves, we have not included sound as a separate feature. We will, however, consider results of ongoing and future studies and will review and reconsider this conclusion as our scientific understanding of the acoustic ecology of Southern Resident killer whales advances.

We agree with commenters that communication space for social behavior is important for killer whales, and in the existing inland waters critical habitat, and as expected for the coastal areas designated in this final rule, we will continue to consider the effects of sound on these aspects of the Southern Resident killer whales' life history through the passage and prey essential features as well as in section 7 analyses considering the impacts of noise on the whales themselves. In response to the concerns expressed in the comments, however, we have added more detail to the Final Biological Report (NMFS 2021a, sections V.B.2., V.B.3, and V.B.4) to clarify that the effects of anthropogenic noise on communication and social behavior are and will continue to be evaluated through the prey and passage essential features, as well as analyses of effects to individual whales. Specifically, indirect impacts of anthropogenic noise on communication and social behavior are addressed in section 7 consultations when we consider and address impacts of anthropogenic noise on the whales themselves, which would also take into consideration elements including communication and social behavior as they can relate to the health and fitness of individual whales. Specifically, effects of anthropogenic noise that result in “take” (including harm) to individual whales are currently addressed under section 7 of the ESA (pursuant to the standard for considering whether a proposed action would jeopardize the continued existence of the species). For example, the effects of military noise on Southern Resident killer whales and other marine mammals, including on their communication space, are addressed through ongoing NMFS permitting of U.S. Navy Northwest Training and Testing activities (85 FR 33914; June 2, 2020). In addition, if data indicate that anthropogenic noise from a particular Federal action is preventing or impeding access to prey or preventing or impeding successful feeding within designated critical habitat, then such effects could constitute an adverse effect on the prey essential feature and thus the designated critical habitat itself and for that reason would likely also be addressed under section 7 of the ESA (pursuant to the standard for considering whether an action poses destruction or adverse modification to critical habitat). Thus, the critical habitat and essential features as defined in this rule will provide a measure of protection from noise degradation to the extent that an action might cause such noise that would interfere with the whales' ability to use (
e.g.,
move through for foraging, migrating, social behavior, or access prey) and successfully feed (including social communication for prey sharing) within the critical habitat. Furthermore, the critical habitat designations as finalized in this rule will result in the added requirement that Federal agencies explicitly analyze any relevant impacts of noise on Southern Resident prey species.

There are several reasons why the approach to sound for Southern Resident killer whales is compatible with the approaches for the other two species, Cook Inlet beluga whale DPS and the Main Hawaiian Islands insular false killer whale (MHI IFKW) DPS, which include sound qualitatively as a feature or a characteristic of a feature. The MHI IFKW designation considered the effects of sound on navigation, communication, and foraging by including sound as a characteristic of the habitat feature. Similarly, we are able to analyze the equivalent effects for Southern Resident killer whales through the passage and prey features as these similarly address navigation for access to areas, communication for prey sharing, and movement for foraging (access to prey). For Cook Inlet beluga whale critical habitat, the sound feature focuses on identifying noise levels that do not lead to abandonment of the area, providing a level of protection that is equivalent to our consideration of acoustic barriers in the passage feature for Southern Resident killer whales (passage feature addresses access to areas). Therefore, descriptions of both sound essential features for false killer whales and beluga whales inform the qualitative assessment of habitat-related impacts from anthropogenic sound, specifically on passage, access to critical habitat, and use of critical habitat, similar to passage and prey features for Southern Residents killer whales that equally address access and use of critical habitat. Likewise, the critical habitat (Habitat of Special Importance) established by Canada in Canadian waters includes an acoustic environment feature that addresses the effects of anthropogenic underwater noise on life history functions, but all the life history functions that the feature includes are captured in the prey and passage features of critical habitat in U.S. waters, making the two approaches consistent in the level of protection they provide for the species. Finally, no qualitative sound-related feature has been identified for other whale species with larger ranges (like Southern Resident killer whales) such as humpback whales (84 FR 54354; October 9, 2019), North Atlantic right whales (81 FR 4838, January 27, 2016), and north Pacific right whales (68 FR 19000, April 8, 2008).

Consistent with the proposed rule, this final rule does not include sound as an essential feature for Southern Resident killer whale critical habitat. We will continue to consider the habitat-related effects of anthropogenic sound on the whales via the prey and passage essential features, as detailed above.

Comment 9:
Many commenters discussed the importance of prey availability for the recovery of Southern Resident killer whales, noting the value of the coastal critical habitat for supporting the whales' access to prey. One commenter felt that our description of the prey feature should provide greater specificity by specifying prey species and priority Chinook salmon runs that constitute essential features, and identifying quantitative thresholds for prey quantity, quality, and availability.

Response:
We agree with the commenters' view that prey availability is important to Southern Resident recovery, and we will continue to carry out section 7 consultations to evaluate potential jeopardy to killer whales from fisheries and other activities with a Federal nexus that may impact the whales' prey species. In addition, certain priority Chinook salmon runs consumed by Southern Resident killer whales are also ESA-listed, and we will continue to carry out section 7 consultations on Federal activities that may jeopardize ESA-listed salmon. As stated in the proposed rule and supported by the subsequent Final Draft Risk Assessment for Salmon FMP Impacts to Southern Resident Killer Whales (PFMC 2020) and our recent Biological Opinions on Implementation of the PFMC Salmon FMP (NMFS 2020, NMFS 2021c), we continue to find that there is not sufficient information to establish a specific threshold level of prey abundance and accessibility for ensuring recovery of the whales. While we have used thresholds of low Chinook salmon abundance to describe high risk conditions for the whales, we have not been able to identify a quantitative threshold for a critical habitat prey feature. Even without such a threshold for critical habitat, however, the final rule and Final Biological Report highlight the rigorous scientific information available that supports our evaluation of prey availability as a feature. That supporting information also includes our current understanding of the different prey species important to the whales.

There is extensive evidence that Southern Resident killer whales have a preference for Chinook salmon prey in inland waters in the summer and fall, as well as other species of salmonids at particular times and locations (Final Biological Report, NMFS 2021a). There is emerging scientific information supporting a similar preference for Chinook salmon in coastal waters as longer term studies have documented for inland waters, though the studies in coastal waters have also documented a wider range of prey species in the diet compared to the diet in inland waters. The coastal data, however, are limited (small sample size from limited areas and seasons compared to data for inland waters) and still emerging as research continues. Therefore, we have not specified prey species in the description of the prey feature at this time. However, we will continue to use the best available information on prey species in the diet of the whales and incorporate new information on prey as our understanding evolves, as we have in consultations on the inland waters critical habitat.

Comment 10:
One commenter disputed the proposed rule's analysis regarding the relationship between Chinook salmon abundance on the outer coast and the availability of prey for Southern Resident killer whales. The commenter felt that NMFS did not use the best available data in concluding that Chinook salmon abundance on the outer coast may pose a risk to the killer whales, citing several studies for additional consideration. The commenter emphasized the uncertainties that still exist in our understanding of the relationship between Southern Resident killer whales population dynamics and Chinook salmon. They noted the new information available in the Risk Assessment produced by the PFMC's Southern Resident Killer Whale Working Group, and requested that these findings be incorporated into the final rule.

Response:
The Draft Biological Report (NMFS 2019a) provided a comprehensive review of the scientific literature on prey availability as a potential threat to Southern Resident killer whales. The Draft Biological Report included studies noted by the commenter for consideration, and acknowledged the limitations and uncertainties of the currently available information. Since the publication of the proposed rule on August 27, 2019, new research has been published in the Final Draft Risk Assessment for Salmon FMP Impacts to Southern Resident Killer Whales (PFMC 2020) and our recent Biological Opinions on Implementation of the PFMC Salmon FMP (NMFS 2020, NMFS 2021c). The Final Biological Report (NMFS 2021a) and FEA (IEc 2021) have been updated to include these new analyses.

Special Management Considerations

Comment 11:
Several commenters mentioned the importance of addressing upstream threats to Southern Resident

killer whales' prey, such as sea lion predation, dams, land-based water pollution, and liquefied natural gas terminals. Some of these commenters felt the proposed rule did not go far enough to address these threats, while others felt NMFS should focus on addressing these threats instead of designating critical habitat. Alternative solutions proposed by commenters included increased hatchery production; salmon habitat management, protection, and restoration; dam removal; and sea lion predation management. Commenters emphasized the need to consider activities outside the critical habitat with downstream impacts that could adversely impact essential features of the critical habitat. One commenter requested that NMFS produce a map of areas outside the critical habitat where activities could trigger section 7 consultation.

Response:
NMFS leads and supports a wide range of activities that aim to recover Southern Resident killer whales and their prey, including efforts to address upstream threats highlighted by commenters. As one of many tools to support recovery efforts, designating critical habitat provides additional conservation protections for the whales and their habitat. ESA section 7 requires that Federal agencies ensure their actions are not likely to destroy or adversely modify critical habitat. This requirement applies to actions occurring both within and outside of designated critical habitat areas which can impact the features of the critical habitat. For example, consultation would be required on activities that occur in upstream freshwater locations if those actions may affect essential habitat features in designated critical habitat. However, as described in the DEA and FEA (section 1.3, IEc 2019, 2021), no distance threshold can be predetermined for how far upstream from the critical habitat consultation may occur. Therefore, it is not possible to produce a map of areas where certain activities would trigger section 7 consultation.

Comment 12:
Several commenters expressed concern about the impacts of vessel traffic on Southern Resident killer whales. One commenter requested that we consider including additional management measures for vessel traffic in the critical habitat final rule, and another requested that we not exclude the San Francisco Bay shipping lanes.

Additionally, several commenters expressed concern about potential changes to vessel traffic management in response to the designation of critical habitat. They were concerned that the critical habitat designation could result in modifications to routing, voyage planning, and navigation restrictions that would adversely impact maritime shipping and towing industries.

Response:
The proposed rule identified vessel traffic as one of twelve types of human activities that have the potential to affect the habitat features essential to the conservation of Southern Resident killer whales. The Final Biological Report describes the potential impacts of vessel traffic on, and existing regulations and procedures in place to protect, the whales and their habitat. Vessel traffic has a Federal nexus through the shipping lanes established by the U.S. Coast Guard (USCG) under the Ports and Waterways Safety Act, and the USCG consults with NMFS to evaluate impacts on whales and their critical habitat for the regulatory codification of Traffic Separation Schemes (TSS).

We did not propose to exclude and are not excluding the San Francisco Bay shipping lanes from critical habitat designation, nor do we anticipate that designation will result in changes to the San Francisco Bay TSS. As described in section 2.9 of the DEA and FEA (IEc 2019, 2021), based on our experience with section 7 and informal consultations with USCG regarding codification of TSS, NMFS does not anticipate the expanded critical habitat will generate additional conservation efforts for killer whales associated with vessel traffic management beyond the existing need to avoid jeopardy to the whales.

Comment 13:
Two commenters stated that scientific research should be included in the economic analysis as an activity that may be affected by the critical habitat designation. One commenter stated that it was unclear if scientific research activities were considered in the economic analysis, and mentioned that basic marine research supported by the National Science Foundation (NSF) occurs within the proposed critical habitat (
e.g.,
NSF Ocean Observatories Initiative). One commenter recommended that we list this category of activity as part of our summary of activities that may adversely modify the critical habitat or be affected by the designation as required by section 4(b)(8) of the ESA.

Response:
The effects of certain scientific research activities on Southern Resident killer whale critical habitat and potential for changes in management of those activities following critical habitat expansion were considered within the discussion of other related activities in the DEA and are still considered in the FEA (IEc 2019, 2021) These activities are directly related to other categories of activities that may affect critical habitat and are, therefore, grouped within those activities instead of as a separate category of activity. For example, seismic-based research is discussed in section 2.12 Geologic Surveys (Including Seismic Surveys), and research related to renewable energy development is discussed in section 2.6. Alternative Energy Development. Fisheries-related scientific research is included under the category of Fisheries in section 2.3. Other types of scientific research were not identified as posing a specific threat to the essential features of Southern Resident killer whale critical habitat, but future consultations on these activities will need to include an analysis of potential effects on critical habitat. In all cases, NMFS has not identified any conservation efforts that will change management of any scientific research activity following the critical habitat expansion. The DEA and FEA do consider the administrative costs to NMFS, the action agency, and third parties relative to this activity associated with future section 7 consultations. These costs are reported in Exhibit 3-9 in the categories of “Fisheries” (for fisheries-related research), “Renewable Energy Development” (for wind and wave energy research), “Seismic Surveying” (for seismic research), and “Other” (for other types of research).

Application of ESA Section 4(b)(2)

Economic Impacts

Comment 14:
A representative from the USACE Sacramento District commented that consultations in the Sacramento District will need to consider the effects of their permitted activities on Southern Resident killer whale critical habitat, and thus those activities may be affected by the critical habitat expansion. Additionally, costs associated with future section 7 consultations will be incurred by the District.

Response:
We thank the commenter for pointing out the oversight in the DEA's exclusion of the Sacramento District from the list of USACE Districts that manage and conduct activities potentially affected by the expansion of critical habitat for Southern Resident killer whales. We agree that because the range of the prey species, which is an essential feature of Southern Resident killer whale critical habitat, extends into the Sacramento District's area of authority, activities in that district may be affected. Consistent with the

comment, we agree that those costs identified in the report as potentially resulting from the critical habitat expansion relative to USACE projects may include projects in the Sacramento District. Because NMFS does not anticipate any changes to the management of USACE permitted or implemented activities, these costs are limited to the administrative costs to NMFS, the USACE, and third party permit applicants of participating in future section 7 consultations. Section 2.10 of the FEA (IEc 2021) includes the Sacramento District in the list of USACE districts that manage activities that may be affected by the expansion (may have administrative costs associated with potential future consultations).

Comment 15:
Multiple commenters stated that the economic analysis did not adequately consider the potential costs of the proposed critical habitat designation on fisheries. One commenter noted that nearly all costs identified in the economic analysis are internal costs to NMFS instead of third-party costs to the fishing industry. Commenters acknowledged that NMFS considers additional conservation efforts as a result of critical habitat designation to be unlikely but noted that if this assumption proves false, there could be significant economic impacts to fisheries. The commenters suggested that the economic analysis should provide a full range of potential economic impacts to fisheries, including an analysis of potential fisheries closures. The commenters suggested that such analysis would better inform the fishing industry, as well as better allow NMFS to weigh potential costs versus benefits of the designation.

Response:
The DEA considered the potential for the expansion of critical habitat to result in additional conservation efforts, including fishery closures, for commercial and recreational fisheries (see section 2.3). At the time of DEA development, NMFS was not able to envision a scenario in which the expansion of critical habitat for Southern Resident killer whales would result in changes to management of salmon fisheries or fisheries with incidental catch of salmon. This conclusion was due to a number of factors including the ESA listing and consequent need for recovery of many salmon populations themselves, existing consideration of fishery impacts and prey availability relative to the potential for jeopardy to Southern Resident killer whales even absent critical habitat expansion, and experience over the past 15 years implementing the inland waters critical habitat for Southern Resident killer whales, which has not resulted in fishery management changes beyond those considered during ESA consultation on prey effects relative to jeopardy. Since that time, there has been substantial attention to Southern Resident killer whale conservation and recognition of the link between their recovery and salmon abundance, suggesting that numerous factors outside of the potential critical habitat expansion will continue to drive policy decisions related to management of salmon fisheries. As a result, NMFS is unable to envision a scenario in which the expanded designation of critical habitat will result in changes to fishery management. Given this, we have not quantified costs associated with hypothetical management actions that are not anticipated outcomes of this critical habitat rule. Quantified costs are thus limited to those administrative costs incurred as a result of section 7 consultation on fishery management plans.

The administrative costs quantified in the DEA and FEA are not exclusive to NMFS. As shown in Exhibit 1-3 of the FEA, the analysis estimates administrative costs for each forecasted consultation to NMFS, a Federal action agency, and a third party (IEc 2021). A third party to consultation could be a private company (
e.g.,
an applicant for a Federal permit), a local or state government, or some other entity. In the case of fisheries, administrative costs are incurred through the process of consultation on fishery management plans. Although private third parties such as individual fishermen are not generally involved in this process, administrative effort on the part of one or more third parties associated with participation in that process is included in the estimated costs of consultation.

Comment 16:
Numerous commenters stressed the need for the economic analysis to consider the value of and potential impacts to fisheries and associated communities in California, Oregon, and Washington. These commenters stated that the critical habitat designation could harm the livelihoods of fishermen and coastal communities all along the West Coast.

Response:
The FEA (IEc 2021) recognizes the economic value of fisheries to communities in Washington, Oregon, and California (IEc 2021, section 2.3.1). However, the critical habitat designation is unlikely to result in additional conservation efforts due to baseline protections associated with the ESA-listing status of both the killer whales and salmon,
i.e.,
due to the need to consider the potential for fisheries to jeopardize the species even without a critical habitat designation. As a result, we conclude that the rule will not have economic impacts on fishing activity beyond administrative costs associated with section 7 consultation on fishery management plans.

Comment 17:
One commenter expressed the opinion that the economic analysis does not account for certain types of economic costs of the designation to the fishing industry, including delays associated with consultation and litigation. The commenter describes that additional consultations and/or litigation associated with the final rule will result in costs to NMFS that have not been accounted for such as staff resources that are required to administer consultations and/or litigation associated with the final rule. Consultation requirements and litigation could result in costs to the industry, particularly if it results in other important actions being delayed because of this rule.

Response:
The administrative time and resources associated with NMFS' participation in consultations resulting from the critical habitat expansion, as well as participation of other Federal agencies and third parties to consultations, are explicitly included in the administrative costs quantified in the FEA (IEc 2021). It would be speculative to estimate costs associated with delays in management actions due to consultation requirements absent data that specifies the nature, extent, and duration of these types of delays, particularly in light of the fact that NMFS does not anticipate that the outcome of consultations would change as a result of the critical habitat expansion.

While potential exists for third party lawsuits to result from critical habitat designation, the likelihood, timing, and outcome of such lawsuits are uncertain. While critical habitat designation may stimulate additional legal actions, data do not exist to reliably estimate impacts. That is, estimating the number, scope, and timing of potential legal challenges would require significant speculation. Furthermore, litigation risk exists regardless of the critical habitat designation given the existing protections already afforded the whales under the MMPA and ESA.

National Security Impacts

Comment 18:
Multiple commenters, including the Washington Department of Fish and Wildlife, expressed opposition to the proposed exclusions of the QRS off the coast of Washington and the associated 10-km buffer around this area. Several commenters stated that the proposed exclusion was overly

broad and not adequately justified. Several commenters stated that planned activities, such as use of sonar and explosives, can impact the whales and their prey, and additional mitigation measures or restrictions on the Department of the Navy's (“Navy”) activities within the QRS should be implemented. One commenter noted that the QRS overlaps with the OCNMS, an area that requires a higher standard of resource protection. Several commenters noted that the QRS area was within a high use foraging and passage area for Southern Resident killer whales. Some commenters noted that the 10-km buffer overlaps and is adjacent to priority Chinook salmon rivers and expressed concern that the exclusion may impact their ability to access prey. Several commenters suggested not excluding from the critical habitat designation a north-south nearshore corridor for passage through the QRS. Commenters requested we reconsider the Navy's request for this exclusion given the importance of the area for Southern Resident killer whales.

Acknowledging the requirement to balance military readiness needs when designating critical habitat, one commenter made several points in favor of the exclusion, noting the low number of training and testing events that the Navy expected to carry out within the QRS and that those activities would be subject to review under section 101(a)(5)(A) of the MMPA and section 7 of the ESA.

Response:
As discussed in the Draft and Final ESA Section 4(b)(2) Report (NMFS 2019b, 2021b), to weigh the national security impacts against conservation benefits of a potential critical habitat designation, we considered the size of the requested exclusion and the amount of overlap with the specific critical habitat area; the relative conservation value of the particular area for the Southern Resident killer whales; the importance of the site to the Navy mission and military readiness; the likelihood that the Navy's activities would destroy or adversely modify critical habitat, and the likelihood that NMFS would require project modifications to reduce or avoid these impacts; and, the likelihood that other Federal actions may occur in the site that would no longer be subject to the critical habitat provision if the particular area were excluded from the designation. In response to the public comments, we reconsidered these factors, information provided by the Navy, and also requested additional information from the Navy regarding their activities in the portion of the QRS that also falls within the OCNMS.

In making our decision with respect to this particular area, we did so within the framework of our joint NMFS/USFWS policy on implementation of section 4(b)(2) (81 FR 7226, February 11, 2016) (“Section 4(b)(2) Policy”). Specifically, when a DOD agency requests an exclusion on the basis of national-security or homeland security impacts, it must provide a “reasonably specific justification” of a probable incremental impact on national security that would result from the designation of that specific area as critical habitat (81 FR 7226; February 11, 2016). Where the request is substantiated with such a reasonably specific justification, we give “great weight” to those concerns in analyzing the benefits of exclusion.

The QRS and proposed 10-km buffer comprise about 39 percent of Area 1 (Coastal Washington/Northern Oregon Inshore) and about 25 percent of Area 2 (Coastal Washington/Northern Oregon Offshore), and about 28 percent of Areas 1 and 2 combined, but a very small portion of the total critical habitat designations for the Southern Resident killer whale (8.5 percent). The QRS and associated buffer also have a significant degree of overlap with the OCNMS, where certain activities are prohibited or not authorized, including oil, gas, or mineral exploration, development, or production; discharging or depositing any material or other matter; drilling into, dredging, or otherwise altering the seabed, with some exceptions (15 CFR 922.152). Because of these prohibitions, the likelihood of other Federal activities being proposed in this area of the QRS may be limited.

In support of their request for exclusion of this particular area, the Navy pointed to the extensive range of planned activities, which are described in their Final Northwest Training and Testing (NWTT) Supplemental Environmental Impact Statement (SEIS) published on September 18, 2020, and stated that any additional, future modifications to these activities to minimize impacts on Southern Resident killer whale critical habitat would impact the Navy's ability to meet mission requirements. The Navy pointed to the use of explosives, in particular, as being likely to have adverse effects on killer whale prey, although not likely at the population level for salmon prey. In their initial request, dated December 5, 2018, the Navy stated that if additional mitigation requirements result in having to halt, reduce in scope, or geographically or seasonally constrain testing activities to prevent adverse effects to critical habitat, this would in turn impact its ability to test and field new systems and platforms. To avoid potential, additional, spatial restrictions on its activities within the QRS, the Navy also requested exclusion of an additional 10-km buffer around the QRS from the critical habitat designation. The Navy determined the size for this buffer using sound attenuation modeling to calculate the farthest distance at which fish would be expected to be injured from the largest explosive the Navy can reasonably foresee testing in the QRS; and, in subsequent communications, the Navy further clarified that the size of the buffer also incorporated uncertainty for updates in resource-related science, changes in oceanographic conditions that could reduce attenuation, and the evolution of military technologies that may behave differently in the environment.

We continue to find that the Navy has provided a reasonably specific justification to support the requested exclusion of the QRS, and consistent with our Section 4(b)(2) Policy (81 FR 7226; February 11, 2016), we gave great weight to these concerns when analyzing the benefits of exclusion. Our consideration of the multiple factors discussed, coupled with the potential delay in critical missions in order to complete adverse modification analyses, caused us to continue to find that the benefits of excluding the QRS due to national security impacts outweigh the benefits of designating this portion of Areas 1 and 2 as critical habitat for the Southern Resident killer whales. However, we are modifying our proposed exclusion of the buffer area. Specifically, we are not excluding a portion of the 10 km buffer area around the northeast corner of the QRS, extending along the East side of the QRS, where it overlaps with the OCNMS. As detailed in the Section 4(b)(2) Report (NMFS 2021b), we concluded the benefits of designating critical habitat for Southern Resident killer whales within this portion of the buffer are not outweighed by national security impacts of including that portion at this time.

We acknowledge the concerns raised by the commenters regarding potential impacts to the whales and their prey as a result of certain Navy activities, such as sonar and explosives. The Biological and Conference Opinion on the Navy's Northwest Training and Testing Activities, issued by NMFS on October 19, 2020, addresses activities within the QRS and analyzed the effects of the Navy's planned activities on Southern Resident killer whales as well as their prey. As discussed in that consultation,

the Navy has adopted certain mitigation measures within the QRS, including the portion of the QRS that overlaps with the OCNMS, to avoid or minimize adverse impacts on marine mammals and other marine resources in this area. Exclusion of the QRS area will not impact our ability to continue to work closely with the Navy through the section 7 consultation process to minimize and mitigate impacts to the Southern Resident killer whales as a result of the Navy's testing and training activities (see 85 FR 72312; November 12, 2020, and
https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-northwest-training-and-testing-nwtt-2020
).

Critical Habitat Identification

In the following sections, we describe the relevant definitions and requirements in the ESA and our implementing regulations and the key information and criteria used to prepare this revision to the Southern Resident killer whale critical habitat designation. In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), this designation is based on the best scientific information available.

We followed a five-step process in order to identify the specific areas eligible for critical habitat designation: (1) Determine the geographical area occupied by the species at the time of listing, (2) identify physical or biological habitat features essential to the conservation of the species, (3) delineate specific areas within the geographical area occupied by the species on which are found the physical or biological features, (4) determine whether the feature(s) in a specific area may require special management considerations or protection, and (5) determine whether any unoccupied areas are essential for conservation. Our evaluation and determinations are described in detail in the Final and Draft Biological Reports (NMFS 2019a, NMFS 2021a) and are summarized below.

Beyond the identification and description of the areas, the critical habitat designation process also includes additional steps: Identify whether any area may be precluded from designation because the area is subject to an INRMP that we have determined provides a benefit to the species; and consider the economic, national security, or any other relevant impacts of designating critical habitat and determine whether to exercise our discretion to exclude any particular areas. These steps are described in the Final ESA Section 4(b)(2) Report (NMFS 2021b) and the FEA (IEc 2021) and are summarized in later sections of this rule.

Geographical Area Occupied by the Species

The term “geographical area occupied by the species” is defined as an area that may generally be delineated around a species' occurrences as determined by the Secretary (
i.e.,
range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (
e.g.,
migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals) (50 CFR 424.02).

Southern Resident killer whale summer inland habitat use was previously described in the 2006 critical habitat designation (71 FR 69054, November 29, 2006). At that time, few data were available on Southern Resident distribution and habitat use of coastal and offshore areas in the Pacific Ocean. While it was known that the whales occupied these waters for a portion of the year, only 28 sightings of Southern Resident killer whales were available to describe their coastal range (Krahn
et al.
2004, NMFS 2006). In the 2006 designation, these coastal areas were included in the identified geographical area occupied by the species, but the lack of data precluded the agency from designating specific areas within the coastal range as critical habitat.

Since the 2006 designation, considerable effort has been made to better understand the range and movements of Southern Resident killer whales once they leave inland waters. Land- and vessel-based opportunistic and survey-based visual sightings, satellite tracking, and passive acoustic research conducted since 2006 have provided an updated estimate of the whales' coastal range that extends from the Monterey Bay area in California, north to Chatham Strait in Southeast Alaska. In addition, these data have provided a better understanding of the whales' use of these waters, allowing us to identify areas that meet the definition of critical habitat under the ESA.

While the range of Southern Resident killer whales includes coastal and inland waters of British Columbia, Canada, we cannot designate critical habitat in areas outside of U.S. jurisdiction (50 CFR 424.12(g)). The Government of Canada has designated critical habitat for Northern and Southern Resident killer whales in Canadian waters under its Species at Risk Act. In its 2008 recovery strategy and 2011 amended recovery strategy, the Government of Canada identified the Canadian side of Haro and Juan de Fuca Straits, as well as Boundary Pass and adjoining areas in the Strait of Georgia as critical habitat for Southern Resident killer whales (Fisheries and Oceans Canada 2011). The Government of Canada recently designated a new critical habitat area for Northern and Southern Resident killer whales in ocean waters on the continental shelf off southwestern Vancouver Island, including Swiftsure and La Pérouse Banks (Fisheries and Oceans Canada 2018).

Some Alaskan waters are considered to be within the geographic area occupied by Southern Resident killer whales, but we are not expanding critical habitat there at this time because there is insufficient information about the whales' distribution, behavior, and habitat use in these areas. For example, there is only one sighting of Southern Resident killer whales in Southeast Alaska, in Chatham Strait in 2007. While we can infer that some of the essential habitat features, such as prey, are present to support the whales there, we do not have sufficient data to adequately describe Southern Resident use of habitat features in this area or identify specific areas with those features.

Physical and Biological Features Essential to Conservation

The ESA does not specifically define physical or biological features. However, court decisions and joint NMFS and USFWS regulations at 50 CFR 424.02 (81 FR 7413; February 11, 2016) provide guidance on how physical or biological features are expressed. Physical and biological features support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

Based on the best available scientific information regarding natural history and habitat needs, the following features were identified in the 2006 critical habitat designation as essential to the conservation of the species within inland waters of Washington: (1) Water

quality to support growth and development; (2) prey species of sufficient quantity, quality and availability to support individual growth, reproduction and development, as well as overall population growth; and (3) passage conditions to allow for migration, resting, and foraging. We identified the same three biological and physical features as essential for the conservation of Southern Resident killer whales within their coastal range, as described below.

(1)
Water quality to support growth and development.
Water quality supports Southern Resident killer whales' ability to forage, grow, and reproduce free from disease and impairment. Southern Resident killer whales are highly susceptible to biomagnification of pollutants, such that chemical pollution is considered one of the prime impediments to their recovery (NMFS 2008). Water quality is essential to the whales' conservation, given the whales' present contamination levels, small population numbers, increased extinction risk caused by any additional mortalities, and geographic range (and range of their primary prey) that includes highly populated and industrialized areas. Water quality is especially important in high-use areas where foraging behaviors occur and contaminants can enter the food chain. The absence of contaminants or other agents of a type and/or amount that would inhibit reproduction, impair immune function, result in mortalities, or otherwise impede the growth and recovery of the Southern Resident population is a habitat feature essential for the species' recovery. Exposure to oil spills also poses additional direct threats as well as longer-term population level impacts. Therefore, the absence of these chemicals is essential to Southern Resident conservation and survival.

(2)
Prey species of sufficient quantity, quality and availability to support individual growth, reproduction and development, as well as overall population growth.
Southern Resident killer whales need to maintain their energy balance all year long to support daily activities (foraging, traveling, resting, socializing) as well as gestation, lactation, and growth. Maintaining their energy balance and body condition is also important because when stored fat is metabolized, lipophilic contaminants may become more mobilized in the bloodstream, with potentially harmful health effects (Mongillo
et al.
2016). Southern Resident killer whales are top predators that show a strong preference for salmonids in inland waters, particularly larger, older age class Chinook (age class of 3 years or older) (Ford & Ellis 2006, Hanson
et al.
2010). Samples collected during observed feeding activities, as well as the timing and locations of killer whales' high-use areas that coincide with Chinook salmon runs, suggest the whales' preference for Chinook salmon extends to outer coastal habitat use as well (Hanson
et al.
2017, Shelton
et al.
2018, Hanson
et al.
2021). At some low Chinook abundance level, the prey available to the whales will not be sufficient to forage successfully leading to adverse effects on body condition or fecundity (NMFS 2020). Habitat conditions should support the successful growth, recruitment, and sustainability of abundant prey to support the individual growth, reproduction, and development of Southern Resident killer whales.

Age, size, and caloric content all affect the quality of prey, as do contaminants and pollution. The availability of key prey is also essential to the whales' conservation. Availability of prey along the coast is likely limited at particular times of year due to the small run sizes of some important Chinook salmon stocks, as well as the distribution of preferred adult Chinook salmon that may be relatively spread out prior to their aggregation when returning to their natal rivers. Availability of Chinook salmon to the whales may also be impacted by sound from vessels or other sound sources if they raise average background noise within the animal's critical bandwidth to a level that is expected to chronically or regularly reduce echolocation space (Joy
et al.,
2019, Veirs
et al.
2016), and by competition from other predators including other resident killer whales, pinnipeds, and fisheries (Chasco
et al.
2017).

(3)
Passage conditions to allow for migration, resting, and foraging.
Southern Resident killer whales are highly mobile, can cover large distances, and range over a variety of habitats, including inland waters and open ocean coastal areas from the Monterey Bay area in California north to Southeast Alaska. The whales' habitat utilization is dynamic. Analyses of Southern Resident killer whales' movement patterns on the outer coast from satellite tag data have revealed preferred depth bands and distances from shore that suggest potential travel corridors, and variations in travel speed or duration of occurrence that may indicate different behavioral states (Hanson
et al.
2017).

Southern Resident killer whales require open waterways that are free from obstruction (
e.g.,
physical, acoustic) to move within and migrate between important habitat areas throughout their range, find prey, communicate, and fulfill other life history requirements. As an example of an “acoustic obstruction,” killer whale occurrence in the Broughton Archipelago, Canada declined significantly when acoustic harassment devices were in use at a salmon farm, and returned to baseline levels once the devices were no longer used (Morton & Symonds 2002), indicating the introduction of this chronic noise source into the environment acted as an acoustic barrier and/or deterrent to the whales' use of the area. The passage feature may be less likely to be impacted in coastal ocean waters compared to the more geographically constricted inland waters because the whales may be able to more easily navigate around potential obstructions in the open ocean, but these passage conditions are still a feature essential to the whales' conservation and which may require special management considerations or protection.

We also considered whether to identify sound as a fourth essential feature. Southern Resident killer whales produce and detect sounds for communication, navigation, and foraging. An acoustic environment, or soundscape, in which the whales can detect and interpret sounds is critical for carrying out these basic life functions. In recognition of this, we previously considered identifying sound as a potential essential feature (69 FR 76673; December 22, 2004), but ultimately concluded that we lacked sufficient information to do so. CBD petitioned us to again consider identifying in-water sound as an essential feature of the currently designated critical habitat and any new designation.

We considered the request and examined new information that has become available since publication of the 2006 critical habitat designation final rule, but similar to limitations in our knowledge in 2006, at this time we are not able to identify specific in-water sound levels or thresholds for communication, behavioral or displacement impacts as specifically requested in the petition by CBD. More importantly, we are able to assess adverse habitat-related effects of anthropogenic sound by evaluating impacts to the prey and passage essential features of current critical habitat for Southern Resident killer whales, as well as to the whales themselves, and thus we do not consider it necessary to identify sound as a separate essential feature. The final rule is consistent with the proposed rule

(84 FR 49214, September 19, 2019) and does not include sound as an essential feature for Southern Resident killer whale critical habitat. We will continue to consider the habitat-related effects of anthropogenic sound on the whales via the prey and passage essential features, as detailed in this section. Under the ESA, we separately consider effects of anthropogenic sound on individual whales (which is scaled up to the listed species unit) and habitat-related impacts (which is scaled up to the critical habitat designation). For the former, NMFS has an established framework and thresholds for considering impacts to marine mammals' hearing (specifically temporary or permanent hearing loss), as outlined in our “Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing” (NMFS 2018), and NMFS is also working to refine our guidance on the effects of anthropogenic sound on marine mammal behavior. We will continue to evaluate and manage direct and indirect effects (including consideration of noise interference with whale communication and social behavior) of anthropogenic sound on individual animals and the population relative to the jeopardy standard in ESA section 7 analyses and through MMPA incidental take authorizations.

Adverse habitat-related effects may stem from the introduction of a chronic noise source that degrades the value of habitat by interfering with the sound-reliant animal's ability to gain benefits from that habitat (
i.e.,
altering the conservation value of the habitat). NMFS does not currently have a methodology to establish quantifiable thresholds for determining when chronic noise reaches a level such that it alters the conservation value in this way. However, we can, and do, consider these effects qualitatively.

In our experience evaluating effects to Southern Resident killer whale critical habitat in inland waters, we are able to assess adverse habitat-related effects of anthropogenic sound by evaluating impacts to the prey and passage essential features of current critical habitat for Southern Resident killer whales, and thus we do not consider it necessary to identify sound as a separate essential feature. For example, we evaluate whether chronic anthropogenic sound might alter the conservation value of habitat by reducing the availability of the whales' prey in a particular foraging area by reducing the effective echolocation space for the whales to forage or communicate, or creating a barrier that restricts movements through or within an area necessary for migration, resting, social behavior, or foraging. Thus, the prey and passage essential features as defined in this rule will provide a measure of protection from noise degradation to the extent that an action might cause such noise that would interfere with the whales' ability to use (
e.g.,
move through as in passage or access prey) and successfully feed within the critical habitat (prey feature, including social communication for prey sharing). We will use the same approach for evaluating these effects in coastal critical habitat, consistent with our existing practice in inland waters critical habitat.

In response to public comments requesting that the final rule include sound as an essential feature and emphasizing the importance of communication space for social behavior and pod cohesion (see Comment 8 and response), we revised the Biological Report to clarify that the effects of sound on communication and social behavior are considered in the passage and prey features (as well as effects of sound on individual whales themselves via section 7, outside of critical habitat designation, see sections V.B.2-4, Final Biological Report, NMFS 2021a). Additionally, we will continue to consider and address impacts of anthropogenic noise on the whales themselves, which would also take into consideration elements including communication and social behavior as they can relate to the health and fitness of individual whales.

Specific Areas Within the Geographical Area Occupied by the Species

The three specific areas within the geographic area (range) occupied by the species identified in the 2006 critical habitat designation are carried forward unchanged by the critical habitat revision. We refer to them here as Inland Waters Areas 1-3 to differentiate them from the six newly designated specific coastal areas (Coastal Areas 1-6). In the 2006 designation, a lack of data precluded us from determining whether any specific areas within the coastal range met the definition of critical habitat. Research and data collected since then have allowed us to better characterize the whales' habitat use (NMFS 2021a). These data are now sufficient to identify specific areas within the whales' coastal range.

CBD requested that we identify critical habitat in areas of the Pacific Ocean between Cape Flattery, Washington, and Point Reyes, California, extending approximately 47 mi (76 km) offshore. This requested area was based mainly on the extent of the whales' movements from NMFS' satellite tag data: Tagged animals traveled as far south as Point Reyes and as far offshore as 47 mi. However, the petition stated that because NMFS was continuing to analyze data describing the Southern Resident killer whales' use of coastal and offshore waters, the petition requested we “refine this proposal, as necessary, to include additional inhabited zones or to focus specifically on areas of concentrated use” (CBD 2014). To delineate specific areas, we relied on the satellite tag data but also incorporated information on sightings, acoustic data, and prey sampling. As a result, our specific areas differ in their boundaries from the petitioner's request. For example, there are documented sightings of Southern Resident killer whales south of Point Reyes, so the boundary of the critical habitat is farther south than the petitioners requested.

We identified six specific areas off the U.S. West Coast, delineated based on their habitat features, including variation in the primary feature, and variation in predominant habitat use (for example foraging versus traveling) by Southern Resident killer whales. They encompass most (but not all) of the whales' U.S. coastal range, and vary in size. The ESA and our regulations provide the agency discretion to determine the scale at which specific areas are identified (50 CFR 424.12; 81 FR 7413; February 11, 2016). We selected the boundaries between areas to reflect the spatial scale of the whales' movements and behavioral changes (
e.g.,
where tagged whales were primarily traveling versus observed foraging), as well as to align with some existing fishery management boundaries (
e.g.,
Pigeon Point and Point Sur are geographic points used by the PFMC in salmon management; PFMC 2016). Each area contains all three essential features, but the primary feature varies by area and the primary feature of each area is noted below. Identifying six areas with varying primary features, instead of just one comprehensive critical habitat area containing all three features, will assist with section 7 consultations and analyses about how actions would affect the conservation value of an area based on the primary feature. In addition, identifying six areas rather than one also assisted in analyzing benefits and costs in the ESA Section 4(b)(2) Report (NMFS 2021b). More information about each area, including descriptions of the whales' use of the area based on sighting, satellite tagging, and acoustic detection data, can be found in the Final Biological Report (NMFS 2021a). All

area sizes are based on best available spatial data at the time of the final rule.

Beginning at the westernmost extent of the previously designated Strait of Juan de Fuca critical habitat area (Inland Waters Area 3), the new coastal areas span the U.S. West Coast from the U.S. international border with Canada south to Point Sur, California, which is just south of the southernmost sightings of Southern Resident killer whales in Monterey Bay. On January 27, 2008, Southern Resident killer whales were sighted off Cypress Point, Carmel Bay, just south of Monterey Bay, traveling south (N. Black, Monterey Bay Whale Watch, Orca Network sightings archives). Given uncertainty in the exact extent of the whales' southward movements, we elected to delineate the southern boundary of the specific area just south of the last sighting (by approximately 20 mi (32.2 km)) and align the boundary with the existing salmon management area boundary at Point Sur, California (PFMC 2016).

The inshore (eastern) boundary of the areas is delineated by a continuous line along the coast at 20-ft (6.1-m) depth relative to mean high water. This continuous line crosses river mouths and entrances to semi-enclosed bays and estuaries at the 20 ft depth contour where available or crossing at significant barriers (
e.g.,
jetties). Based on the available data, we defined the shoreward boundary of the specific areas as a line along the coast at 20 ft (6.1 m) in depth relative to the mean high water line. Southern resident killer whales rarely occur in waters shallower than 20 ft (6.1 m). For example, based on data from four satellite-tagged Southern Resident killer whales, less than 1 percent of the whales' outer coastal locations were in depths less than 6 m (approximately 20 ft) (NWFSC unpubl. Data, see the Biological Report, NMFS 2021a) (but locations based on satellite tags are not exact and tidal conditions are unknown for these observations). In addition, there are no data from sightings or satellite tags to indicate that Southern Resident killer whales enter river mouths or semi-enclosed bays and estuaries along the coast, although data indicate the whales do use the open embayment of Monterey Bay in California. Finally, the inward boundary is consistent with the inshore boundary of the 2006 critical habitat designation in inland waters (although the inshore boundary of the coastal critical habitat is delineated relative to the mean high water line instead of extreme high water, the inshore boundary in inland waters) and the proposed rule (84 FR 49214, September 19, 2019).

The offshore (western) boundary of the areas is the 656.2 ft (200 m) depth contour, or isobath. This was selected because movement data from satellite-tagged Southern Resident killer whales indicate that most coastal locations were in water depths of 200 m or less (96.5 percent) and within 21.1 mi (34 km) from shore (95 percent) (Hanson
et al.
2017). Additionally, the limited information available on the distribution of salmon in offshore waters indicates Southern Resident killer whale prey (an essential feature of the habitat) is present in waters of 200 m or less. The two areas off the coast of Washington share the same northern and southern boundaries but are separated longitudinally at the 50-m isobath, such that Coastal Area 1 ranges from 6.1-50 m depth while Coastal Area 2 ranges from 50-200 m depth. The 50-m isobath was selected to distinguish the areas because the majority (42 of 52, or 76.4 percent) of prey samples from observed Southern Resident killer whale predation events in these two areas were collected in water depths of 50 m or less, and just over half of the satellite tag locations in these two areas (54 percent) were in water depths of 50 m or less (NWFSC unpubl. data; Hanson
et al.
2021, see the Biological Report, NMFS 2021a).

The latitudinal boundaries between the specific coastal areas were initially selected to coincide with some of the coastal salmon management area boundaries as defined in the Pacific Salmon FMP and used for the management of salmon harvest (Chinook and Coho specifically) (PFMC 2016). Although the areas of highest Southern Resident killer whale occurrence, as indicated by a duration-of-occurrence model from satellite tag data (Hanson
et al.
2017), did not precisely match the salmon management areas, they generally align with the available information on salmonid and other fish species that may be prey to Southern Resident killer whales. For example, the whales' highest use areas occurred in the North of Falcon fishery management area between Cape Falcon, Oregon and the Canadian border, and relatively high use occurred within the Klamath Management Zone. Similar to inland waters, we assume that Southern Resident killer whales respond to regional and seasonal abundance of salmon, particularly Chinook salmon runs. We then adjusted some of the boundaries to better reflect what we know about the whales' use of the areas (
e.g.,
areas where foraging has been observed and/or prey samples collected, versus areas where whales are considered mainly to be traveling through). We selected Cape Meares, Oregon, as the southern boundary of Areas 1 and 2 instead of Cape Falcon just to the north, because the Cape Meares boundary encompassed all but one of the observed predation events and prey sample locations off the Washington and Oregon coasts. We selected Cape Mendocino, California, as the boundary between Areas 4 and 5 instead of Horse Mountain just to the south because the three predation events observed in California occurred off the Eel River just north of Cape Mendocino, and that boundary better demarcated the southern extent of a higher-use area based on the duration-of-occurrence model of satellite-tagged whale movements (NMFS 2021a).

The six specific coastal areas are:

Coastal Area 1—Coastal Washington/Northern Oregon Inshore Area:
U.S. marine waters west of a line connecting Cape Flattery, Washington (48°23′10″ N/124°43′32″ W), Tatoosh Island, Washington (48°23′30″ N/124°44′12″ W), and Bonilla Point, British Columbia (48°35′30″ N/124°43′00″ W), from the U.S. international border with Canada south to Cape Meares (45°29′12″ N), between the 6.1-m and 50-m isobath contours. This area covers 1,437.9 mi
2
(3,724.2 km
2
) and includes waters off Clallam, Jefferson, Grays Harbor, and Pacific counties in Washington and Clatsop and Tillamook counties in Oregon. The primary essential feature of this area is prey.

Coastal Area 2
—
Coastal Washington/Northern Oregon Offshore Area:
U.S. marine waters west of a line connecting Cape Flattery, Washington (48°23′10″ N/124°43′32″ W), Tatoosh Island, Washington (48°23′30″ N/124°44′12″ W), and Bonilla Point, British Columbia (48°35′30″ N/124°43′00″ W), from the U.S. international border with Canada south to Cape Meares (45°29′12″ N), between the 50-m and 200-m isobath contours. This area covers 4,617.2 mi
2
(11,958.6 km
2
), and as with Area 1, includes waters off Clallam, Jefferson, Grays Harbor, and Pacific counties in Washington and Clatsop and Tillamook counties in Oregon. The primary essential feature of this area is prey.

Coastal Area 3—Central/Southern Oregon Coast Area:
U.S. marine waters from Cape Meares (45°29′12″ N) south to the OR/CA border (42°00′00″ N), between the 6.1-m and 200-m isobath contours. This area covers 4,962.6 mi
2
(12,853.1 km
2
) and includes waters off Tillamook, Lincoln, Lane, Douglas, Coos, and Curry counties in Oregon. The primary essential feature of this area is passage.

Coastal Area 4—Northern California Coast Area:
U.S. marine waters from the OR/CA border (42°00′00″ N) south to Cape Mendocino, CA (40°26′19″ N), between the 6.1-m and 200-m isobath contours. This area covers 1,606.8 mi
2
(4,161.5 km
2
) and includes waters off Del Norte and Humboldt counties in California. The primary essential feature of this area is prey.

Coastal Specific Area 5—North Central California Coast Area:
U.S. marine waters from Cape Mendocino, CA (40°26′19″ N) south to Pigeon Point, CA (37°11′00″ N), between the 6.1-m and 200-m isobath contours. This area covers 3,976.2 mi
2
(10,298.4 km
2
) and includes waters off Humboldt, Mendocino, Sonoma, Marin, San Francisco, and San Mateo counties in California. The primary essential feature of this area is passage.

Coastal Specific Area 6—Monterey Bay Area:
U.S. marine waters from Pigeon Point, CA (37°11′00″ N) south to Point Sur, CA (36°18′00″ N), between the 6.1-m and 200-m isobath contours. This area covers 709.7 mi
2
(1,838.2 km
2
) and includes waters off San Mateo, Santa Cruz, and Monterey counties in California. The primary essential feature of this area is prey.

Need for Special Management Considerations or Protection

Joint NMFS and USFWS regulations at 50 CFR 424.02 define special management considerations or protection to mean methods or procedures useful in protecting physical and biological features essential to the conservation of listed species.

Human activities managed under a variety of legal mandates have the potential to affect the habitat features essential to the conservation of Southern Resident killer whales, including those that could increase water contamination and/or chemical exposure, decrease the quantity or quality of prey, or could inhibit safe, unrestricted passage between important habitat areas to find prey and fulfill other life history requirements. Examples of these types of activities include (but are not limited to): (1) Salmon fisheries and fisheries that take salmon as bycatch; (2) salmon hatcheries; (3) offshore aquaculture/mariculture; (4) alternative energy development; (5) oil spills and response; (6) military activities; (7) vessel traffic; (8) dredging and dredge material disposal; (9) oil and gas exploration and production; (10) mineral mining (including sand and gravel mining); (11) geologic surveys (including seismic surveys); and (12) activities occurring adjacent to or upstream of critical habitat that may affect essential features, that we refer to as “upstream” activities (including activities contributing to point-source water pollution, power plant operations, liquefied natural gas terminals, desalinization plants). We identified these activities based on our ESA section 7 consultation history since 2006 for existing Southern Resident killer whale critical habitat, along with additional information that has become available since the original designation. This is not an exhaustive or complete list of potential activities; rather, these activities are of primary concern because of their potential effects that we are aware of at this time and that should be considered in accordance with section 7 of the ESA when Federal agencies authorize, fund, or carry out these activities. The ESA section 7 requirement that Federal agencies ensure their actions are not likely to destroy or adversely modify critical habitat applies not only to actions occurring within designated critical habitat, but also to actions occurring outside of designated areas which may impact the features of the critical habitat. For example, consultation would be required on activities that occur in waters shallower than 20 ft (6.1 m) or in upstream freshwater locations if those actions are likely to adversely affect essential habitat features in designated critical habitat.

Table 1 lists the activities that may affect the essential features in each of the six specific coastal areas such that the essential features may require special management or consideration. The Final Biological Report (NMFS 2021a) and FEA (IEc 2021) provide a more detailed description of the potential effects of these activities on the essential features.

Table 1—Size of Each Specific Area and Activities That May Affect the Essential Features and Necessitate the Need for Special Management Considerations or Protection Within Each Area Are Listed. Some Activities Occur Upstream But May Affect Features in the Specific Area

Specific area

Size

(mi
2
) *

Activities

1—Coastal Washington/Northern Oregon Inshore Area
1,437.9
FISH, HAT, SPILL, MIL, VESS, DR, POLL, PP.

2 —Coastal Washington/Northern Oregon Offshore Area
4,617.2
FISH, HAT, SPILL, MIL, VESS, DR, POLL, PP.

3—Central/Southern Oregon Coast Area
4,962.6
FISH, HAT, EN, SPILL, MIL, VESS, DR, GEO, POLL, PP, LNG.

4—Northern California Coast Area
1,606.8
FISH, HAT, SPILL, MIL, VESS, DR, POLL, PP.

5—North Central California Coast Area
3,976.2
FISH, HAT, SPILL, MIL, VESS, DR, MIN, POLL, PP.

6—Monterey Bay Area
709.7
FISH, HAT, SPILL, VESS, DR, POLL, PP, DESAL.

Activities:
FISH = fisheries, HAT = hatcheries, EN = alternative energy projects, SPILL = oil spills and response, MIL = military activities, VES = vessel traffic, DR = dredging and dredge material disposal, MIN = mineral mining, GEO = geologic surveys, POLL = point-source water pollution, PP = power plants, LNG = LNG terminals, DESAL = desalinization plants.

* Revisions to area size from proposed are based on best available spatial data at the time of the final rule.

Unoccupied Areas

The ESA section 3(5)(A)(ii) definition of critical habitat includes unoccupied areas, which are defined as specific areas outside the geographical area occupied by the species at the time it is listed if such areas are determined to be essential to the conservation of the species. At the present time, we have not identified additional specific areas outside the geographic area occupied by Southern Resident killer whales that may be essential for the conservation of the species. We considered potential future impacts that climate change might have on the geographical area occupied by the whales, particularly with respect to shifts in distribution of their salmon prey. In accordance with NMFS guidance on the treatment of climate change in NMFS ESA decisions (NMFS 2016), we determined that there is insufficient evidence to identify unoccupied areas that are essential to the conservation of Southern resident killer whales based on potential impacts from climate change.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

Section 4(a)(3)(B) of the ESA prohibits designating as critical habitat any lands or other geographical areas owned or

controlled by DOD, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary of Commerce determines in writing that such a plan provides a benefit to the species for which critical habitat is being designated.

DOD (Army, Navy, and Air Force) helped us identify military lands that may overlap with areas under consideration for critical habitat. The Navy identified two military installations adjacent to these areas, both of which have INRMPs in place for land-based installation activities: Pacific Beach Annex, Naval Station Everett, Washington, and Naval Support Activity (NSA) Monterey, California. Based on our review of these plans, these two shore-based military areas covered by INRMPs do not overlap the critical habitat areas, and thus the critical habitat areas are not subject to the INRMPs or ineligible for designation (see section III.F of the Final ESA Section 4(b)(2) Report, NMFS 2021b).

Application of ESA Section 4(b)(2)

The foregoing discussion describes those areas that are eligible for designation as critical habit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-16094. Public record. Not legal advice.