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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Part 226
Docket No. 2107190149
RIN 0648BH95

Endangered and Threatened Wildlife and Plants; Revision of Critical Habitat for the Southern Resident Killer Whale Distinct Population Segment National Marine Fisheries Service NMFS, National Oceanic and Atmospheric Administration NOAA, Commerce.
ACTION: Final rule.
AGENCY:

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 mi2 41,207 square kilometers km2
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
mi2 3627 km2, 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 4b2 Report, and Biological Report can be found on the NMFS website at https
www.fisheries.noaa.gov/action/criticalhabitat-southern-resident-killer-whale.
FOR FURTHER INFORMATION CONTACT:
Lynne Barre, NMFS West Coast Region, 2065264745; or Lisa Manning, NMFS, Office of Protected Resources, 301427
8466.
SUPPLEMENTARY INFORMATION:
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SUMMARY:

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
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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 mi2 6,630 km2 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, 2:18cv01201RSM
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 4b2

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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-killerwhales.
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 35A 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
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