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Listing Endangered or Threatened Species; 12-Month Finding on a Petition To Revise the Critical Habitat Designation for the Southern Resident Killer Whale Distinct Population Segment

In the 90-day finding we solicited new information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning (1) the essential habitat needs and use of the whales, (2) the West Coast area proposed for inclusion, (3) the physical and biological features essential to the conservation of Southern Residents and that may require special management considerations or protection, (4) information regarding potential benefits or impacts of designating any particular area, including information on the types of Federal actions that may affect the area’s physical and biological features, and (5) current or planned activities in the areas proposed as critical habitat and costs of potential modifications to those activities due to critical habitat designation. We requested that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications.

The public comment period on the 90-day finding closed on June 24, 2014, and all of the comments received can be viewed at www.regulations.gov by searching for FDMS docket number “NOAA-NMFS-2014-0041”. We received 275 comments from a variety of individuals and organizations including researchers, concerned citizens, private, government and nonprofit organizations. The majority of comments (over 250) were brief expressions of support for expanding the Southern Resident killer whale’s critical habitat to offshore and coastal areas; two commenters were opposed to the petition’s proposed revision of critical habitat. In addition, many commenters noted sound was important to killer whales and six specifically supported including sound as a PCE for critical habitat. There were fifteen commenters that provided substantive information or comments. Thirteen of these commenters supported the petitioned action, and many referenced the data presented in the petition, which largely comes from recent NWFSC studies conducted from 2006-2013. Some commenters offered additional information, including data on ocean and Puget Sound fisheries, salmon populations along the Washington coast, and whale sightings in inland waters and off the Washington, Oregon, and California coasts. Below we provide a summary of the substantive comments and information so the public is aware of the information submitted. Where appropriate, we have combined similar comments. We will take into account the comments and information provided in our consideration of a revision to critical habitat.
Geographical Area Occupied by the Species

Comment 1: Several commenters noted that the data from satellite tracking and tagging, visual sightings, acoustic recorders, and strandings all provide evidence that the Southern Resident killer whales regularly use the coasts of Washington, Oregon, and California during part of the year. One commenter suggested that more research be conducted to help decide if the proposed southern boundary be extended even farther south. Several commenters provided evidence that suggests the whales are spending less time in inland waters, specifically in spring months, and have likely increased their use of offshore waters. They noted the coast is important to the whales, which makes the need of an expanded protected area essential.

Comment 2: Two commenters urged that we should reconsider the protection of the Hood Canal and include it in the revised critical habitat designation and one suggested expanding critical habitat into shallower waters. These commenters stressed the historical importance of Hood Canal to the whales and noted that it was used on a regular basis until the early 1980s. The last confirmed use of Hood Canal by the Southern Residents occurred in 1995, which one commenter noted was less than 4 years prior to the formal listing process. Based on the extensive use of Hood Canal by transient killer whales, they noted Hood Canal possesses the physical and biological features necessary to support the whales. Due to its proximity to the core use area in the San Juan Islands, prey resources in Hood Canal could be used, and Hood Canal would provide a safe refuge in the event of an oil spill. In addition to expanding inland critical habitat to include Hood Canal, one commenter suggested expanding critical habitat to shallower water for the pursuit of prey, socializing, grooming, and playing. The commenter argued that including the whale’s active space in critical habitat (or the space around an individual that is perceived visually or auditorily) is more appropriate than creating an arbitrary border at 20 feet (6.1m) of water.
Military Exclusions

Comment 3: One commenter noted that NMFS should only exclude a subset of the military exclusion requests or completely revoke all of the exclusions. This comment was based on the large size and Southern Resident killer whale use of some military areas and suggestions that military activities could be moved to reduce overall area or mitigation for military areas could be considered elsewhere.
Sound as an Essential Feature of Critical Habitat

Comment 4: Many commenters expressed concern that underwater noise can affect Southern Resident killer whales in numerous ways, including disrupting communication, reducing the distance of detecting prey or other whales, masking echolocation, temporarily or permanently impairing hearing, causing strandings or mortality, causing other stress-related harm, and leading to habitat abandonment. Several of these commenters were concerned that ambient underwater noise levels are rapidly increasing in the whales’ habitat. For example, one commenter was concerned that a proposed expansion of naval structures in the Puget Sound will add more noise to the current levels that may cause behavioral disturbance. Another commenter was concerned about an increase in Navy training and testing activities in the Pacific Ocean that could put the killer whales in more danger. One commenter was concerned that the issuance of incidental take permits does not occur for all noise sources (e.g., there is no regulation of shipping noise, recreational vessel and commercial whale watch vessel traffic

noise or noise from fisheries). Another commenter argued that noise pollution is hurting the gene pool by unintentionally selecting against acute hearing, which they argue is likely to reduce the fitness of individuals in the population.

These commenters urged us to identify a sound-based PCE and identify sound levels that do not (1) exceed thresholds that inhibit communication or foraging activities, (2) result in temporary or permanent hearing loss to the whales, or (3) result in the abandonment of critical habitat areas. One commenter added that the sound-based PCE should be established so as not to cause chronic stress, including stress that is potentially sufficient to impair reproduction, or increase morbidity or the risk of mortality. They suggested that we evaluate whether a numeric standard for the sound PCE may be appropriate to determine when adverse modification of critical habitat occurs. However, if numerical standards are not supported by available data, they suggested we adopt proxies from other species. Lastly, several commenters noted that the Canadian government has identified acoustic degradation as one of the main threats to killer whales and the acoustic quality of the Southern and Northern Resident killer whales’ critical habitat in Canada is legally protected by the Critical Habitat Protection Order (see http://www.registrelep-sararegistry.gc.ca/document/default_e.cfm?documentID=1756.)

One commenter supports the petition, but cautioned that the establishment of in-water sound levels based on results from the work primarily from one researcher (Williams et al., 2009; 2013; 2014), which they still considered to be a work-in-progress and, based on another population of killer whales, could result in a disproportionate and distractive regulatory action against the boat-based whale watch industry.

Another commenter asked us to reject the petition and believes revising critical habitat to include the coastal waters of Washington, Oregon, and California and/or adopting a sound PCE would compromise military readiness and national security by substantially limiting training, testing, and construction activities. Furthermore, the commenter stated the PCE criteria described in the petition are too vague for a complete assessment of potential impacts to Navy activities, and they requested we clarify the details on the sound PCE (e.g., the frequency of sounds of concern, the duration and type of sounds and sound producing activity that would likely create an adverse effect, the sound level threshold, timing, the certainty to which an animal would need to be present to trigger restrictions, and implementation and enforcement techniques), in order to adequately assess the impacts to national security.

Another commenter asked us to reject the petition and argued that sound is not a tangible feature contemplated by the ESA, but rather is an element that can be introduced into the aquatic environment that has the potential to have a direct effect on a species. They also argued the effects to a species from an action should be addressed in the section 7 jeopardy analysis, whereas the adverse modification analysis needs to address the potential impacts of the action on the habitat. With the exception of Cook Inlet beluga whales designated critical habitat that includes in-water noise below levels resulting in the abandonment of critical habitat areas (50 CFR 226.220), they note that designating sound as a PCE would be a departure from NMFS’ prior practice of not including sound, even for species that can be affected by in-water sound (i.e., right whales). Lastly, they claim there is no factual basis to designate sound as a PCE and the petition does not narrowly define designated critical habitat. For example, they argue that no information in the petition shows where the specific areas containing the elements of the noise PCE are found, and the biological needs of the whales are not well known enough to determine specific marine areas with sound levels essential to their conservation.
Essential Features and Special Management Considerations

Comment 5: Several commenters argued that Southern Resident killer whales are susceptible to threats outside their current protected habitat and the proposed area for critical habitat is in need of protection. The commenters noted that the whales feed on salmon, breed, and calve while in coastal waters. They highlighted that current Southern Resident killer whale critical habitat only protects summer and fall Chinook salmon stocks. One commenter stressed that the winter and spring runs of Chinook salmon along the outer coast represent a major food source for the whales and that these runs should also be protected. Because the whales appear to be spending less time in inland waters, specifically in spring months, commenters noted that the whales have likely increased their reliance on coastal salmon. Several of the commenters also highlighted that the whales are likely giving birth in these coastal waters in the autumn/winter months and may require more food for lactating mothers. Another commenter argued that the declining coast-wide availability of Chinook salmon reinforces the need to include this area as designated critical habitat to ensure the survival of the salmon on which the Southern Residents depend. In general, these commenters supported expanding critical habitat to encompass the whale’s year-round range, which includes coastal waters of Washington, Oregon, and California, to ensure the conservation of all current foraging grounds and that expanding critical habitat will support sufficient prey to help the whales recover.
In addition to the concern over prey availability, several commenters were concerned that the Southern Residents have acquired high levels of pollutants linked to California that may affect reproduction and the population decline. They also highlighted that because the whales occupy a highly industrialized area, foraging near outflow of large rivers that carry pollutants can directly affect the whale’s health and prey. Additionally, they strongly urged us to ensure that the use and disposal of chemicals do not conflict with the whale’s habitat. Improving water quality in the whales’ coastal winter range requires special management and protection, which they argue is provided by designating the area as critical habitat.
Nineteen commenters mentioned the general threats to Southern Resident killer whales from ships, and several of those commenters argued that special management is needed in offshore waters to address the threats from increasing ship traffic within the coastal range of the whales because traffic likely impacts killer whale foraging habits. In addition, they note an increase in port size or vessel traffic could also have a significant risk because it will increase the risk of collision. They urge us to revise critical habitat to ensure that decisions regarding the expansion of fossil fuel transportation and other maritime activities do not impact the killer whale’s coastal range. Several commenters highlighted that the increase in development of alternative energy sources may also pose a possible passage risk to the killer whales, thereby requiring special management and oversight. Lastly, one commenter was concerned that migration of prey species due to ocean acidification and climate change could impose additional challenges for the whales.


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