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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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and 2 ranged from a low of $1,300 for area 6 to $10,000 for Areas 1/2. Over 40
percent of estimated impacts occur upstream or outside of of critical habitat areas. The largest share of estimated present value economic impacts are associated with dredging and in-water construction and other activities see IEc 2021 for more details.
National Security Impacts During preparations for the proposed revision to Southern Resident killer whale critical habitat, we provided DOD
Navy, Army, and Air Force with information regarding the areas under consideration for Southern Resident killer whale critical habitat, and requested they identify any impacts to national security that might arise from the proposed designation of critical habitat. In addition, we considered information regarding potential national security impacts provided by the USCG
Department of Homeland Security in their response to our 90-day finding on the petition to revise critical habitat.
The Army did not provide a response.
The Air Force stated that it had not identified any significant concerns with the proposed revision of Southern Resident killer whale critical habitat to include coastal waters along the U.S.
West Coast. The Navy stated that it conducts training and testing activities, collectively referred to as military readiness activities, within the coastal areas being considered for designation as critical habitat. Specifically, military readiness activities occur in the offshore Pacific Northwest Ocean Surface/
Subsurface Operating Area OPAREA, Warning Area 237 W237, and the Olympic A and B Military Operation Areas MOA, which are all considered at-sea components of the Northwest Training Range Complex NWTRC, as well as in the QRS, which is a component of the Keyport Range Complex. The Navy refers to all the atsea areas used for training and testing as the Northwest Training and Testing NWTT study area. The Navy believes there would be national security impacts where specific coastal areas 1
and 2 proposed for designation overlap with the QRS. The Navy requested exclusion of the QRS including its associated surf zone off the coast of Pacific Beach, Washington from the proposed critical habitat based on national security impacts arising from additional mitigation requirements that have the potential to impact the effectiveness of ongoing and future testing activities NMFS 2021b. During the pre-publication inter-agency review process for the proposed rule 84 FR
49214, September 19, 2019, the Navy
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also requested exclusion of a 10-km 6.2-mi buffer around the QRS. The Navy stated that they used site-specific oceanographic conditions and the best available science establishing fish injury thresholds Popper et al. 2014 to determine that sound and energy levels from the largest explosives that could be used in the QRS may cause injuries to fish i.e., prey species out to 10 km beyond the boundary of the QRS. If the QRS alone were excluded without the buffer, the largest explosives in the QRS may affect the prey feature within proposed critical habitat in the buffer area. The Navy argued that there would be national security impacts if NMFS
required additional mitigation that resulted in the Navy having to halt, reduce in scope, or geographically/
seasonally constrain testing activities to prevent adverse effects or adverse modification of critical habitat.
The USCG also provided information on potential impacts to national security and maritime safety. The USCG stated that expanded critical habitat might impair its ability to safely conduct defense readiness and additional missions if the designation results in restrictions to the ability of USCG
maritime assets to transit, deploy, train, and/or conduct gunnery exercises within the critical habitat areas. These additional missions include emergency response, search and rescue, law enforcement, conservation activities, and training operations. With respect to gunnery exercises, it noted that USCG
Section/Station/Maritime Force Protection Unit boats are limited to going a maximum of 10 to 50 mi 16
80.5 km offshore depending on vessel type, and requiring them to go over 50
mi would be unsafe and provide unrealistic training/gunnery scenarios to effectively become proficient with meeting mission objectives. In general, USCG Sector/Station assets conduct gunnery exercises with small arms and ammunition, pistols, and up to .50
caliber machine guns. Major afloat cutters conduct exercises with small arms and ammunition, in addition to more sophisticated systems i.e., 25
millimeter mm, 57 mm, and 76 mm guns, close-in weapon systems, but rarely conduct exercises in the areas under consideration for critical habitat, with the exception of the NWTRC.
Although we have not conducted a section 7 analysis on a particular proposed action and we are not predetermining any future ESA
conclusions now, as a general matter, and based on the information currently available, we consider it unlikely that the USCGs routine operations in support of emergency response,
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homeland security, law enforcement, and conservation affect the essential features of Southern Resident killer whale critical habitat, and, as such, we do not expect designation of critical habitat will have a national security impact on these activities. Separately, we consider the USCGs concerns regarding potential national security impacts to their defense readiness activities to be generally overlapping with those of the Navy, given the similarities in some of the USCGs activities i.e., gunnery exercises involving smalland large-caliber projectiles, similar to the Navys surface-to-surface gunnery exercises and area of operations i.e., generally the NWTRC. The USCG does not use these types of explosives in their defense readiness activities, and thus we consider it unlikely that the USCG
would have national security concerns beyond those conveyed by the Navy.
As documented in our Final ESA
Section 4b2 Report NMFS 2021b, we assessed several factors to evaluate the potential impacts of designating critical habitat within the QRS and a 10km buffer around it, such as the size and percentage of the QRS and buffer that would be designated; the importance of the area to the Navy mission and military readiness; the likelihood that Navy activities would destroy or adversely modify critical habitat and that NMFS would require project modification to avoid adverse effects or modification of critical habitat, thus potentially negatively impacting the effectiveness of the Navys training and testing activities; the level of protection provided to one or more essential features by existing DOD safeguards e.g., management or protection already in place; 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.
Other Relevant ImpactsImpacts to Tribal Sovereignty and Self-Governance The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from other entities that interact with, or are affected by, the Federal Government.
This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian tribes and with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to
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