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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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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 4b2 Report, NMFS 2021b.
Application of ESA Section 4b2
The foregoing discussion describes those areas that are eligible for designation as critical habitat. Specific areas eligible for designation are not automatically designated as critical habitat. As described previously, section 4b2 of the ESA requires that the Secretary consider the economic impact, impact on national security, and any other relevant impacts. The Secretary may exclude an area from designation if he determines the benefits of exclusion outweigh the benefits of designation based on the best available scientific and commercial data. The Secretary may not exclude an area from designation if exclusion of that area will result in the extinction of the species.
The first step in conducting an ESA
section 4b2 analysis is to identify the particular areas to be analyzed.
Section 35A of the ESA defines critical habitat as specific areas, while section 4b2 of the ESA requires the agency to consider certain factors before designating any particular area. The ESA and regulations provide the agency discretion to determine the scale at which specific areas 50 CFR 424.12
and impacts 50 CFR 424.19 are identified. For this revision to the designation of Southern Resident killer whale critical habitat, we identified six specific areas off the coasts of Washington, Oregon, and California, as described above. For our economic impact analysis, we defined the particular areas to be equivalent to the specific areas. This approach and scale allowed us to most effectively
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consider the conservation value of the different areas when balancing conservation benefit of designation against economic benefits of exclusion.
Where we considered impacts on national security or impacts on tribes, we based the particular areas on land ownership or control e.g., land controlled by the DOD within which national security impacts may exist, or Indian lands. This approach and scale allowed us to consider impacts and benefits associated with management by the military or land ownership and management by Indian tribes.
Identify and Determine Impacts of Designation The primary impact of a critical habitat designation stems from the requirement under section 7a2 of the ESA that Federal agencies ensure that their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining this impact is complicated by the fact that section 7a2 contains the associated requirement that Federal agencies must also ensure their actions are not likely to jeopardize the species in this case the DPS continued existence. The true impact of this designation is the extent to which Federal agencies modify their actions to ensure their actions are not likely to destroy or adversely modify the critical habitat of the DPS, beyond any modifications they would make because of the DPS listing and the jeopardy provision, and the associated increase in consultation costs. Additional, indirect impacts of designation include state and local protections that may be triggered as a result of the designation.
In determining the impacts of designation, consistent with our regulations 50 CFR 424.19 and policy 81 FR 7226; February 11, 2016, we focused on identifying the incremental impacts. To determine the incremental impacts of the revised designation, we examined what the state of the world would be with and without the addition of coastal critical habitat for Southern Resident killer whales. The without the coastal critical habitat scenario represents the baseline for the analysis.
It includes process requirements and habitat protections already afforded Southern Resident killer whales under their Federal listing or under other Federal, state, and local regulations. The with coastal critical habitat scenario describes the incremental impacts associated specifically with the designation of coastal critical habitat for Southern Resident killer whales. The primary potential impacts of critical habitat designation we identified were:
1 The economic costs associated with
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additional administrative effort of including a coastal critical habitat analysis in section 7 consultations for Southern Resident killer whales, 2
impacts to national security, and 3 the possible harm to our working relationship with Indian tribes and possible overlap with tribal lands or impacts to tribal usual and accustomed U&A areas.
Economic Impacts The FEA IEc 2021 prepared by Industrial Economics, Incorporated IEc, sought to determine the impacts on economic activities due to the designation of the additional critical habitat, above and beyondor incremental tothose baseline impacts due to existing required or voluntary conservation efforts being undertaken due to other Federal, State, and local regulations or guidelines IEc 2021. Incremental impacts may include the direct costs associated with additional effort for section 7
consultations including consultations that otherwise would have been limited to jeopardy issues, reinitiated consultations, or new consultations occurring specifically because of the designation as well as the direct costs associated with conservation efforts or project modifications that would not have been required under the jeopardy standard. Incremental impacts may also include indirect impacts resulting from reaction to the potential designation of critical habitat and triggering of additional requirements under State or local laws intended to protect sensitive habitat.
To quantify the economic impact of designation, the FEA IEc 2021
employed the following steps:
1 Identify the baseline of economic activity and the statutes and regulations that constrain that activity in the absence of the critical habitat designation in the additional areas;
2 Identify the types of activities that are likely to be affected by the critical habitat designation;
3 Project the projects and activities identified in Step 2 over space and time based on the best available information on planned projects, permitting schedules, or average annual levels of activity;
4 Estimate the costs of administrative effort and, where applicable, conservation efforts or project modifications recommended for the activity to comply with the ESAs critical habitat provisions;
5 Apply well-accepted discounting methods to calculate the present value cost in each year of the analysis and sum over time to calculate the total
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