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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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 areas 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
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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 NMFSU.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 424.12b1iii. 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 northsouth 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
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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 20072011, 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 361800 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 1517 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 424.12b, 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 actions 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.

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