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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations In accordance with ESA section 35A, we delineated specific areas within the geographical area occupied by the species where the essential physical or biological features PBFs are found. Although we identify a primary essential feature in each specific area, all three PBFs are essential and present in all specific areas.
Potential effects to all three habitat features are subject to evaluation through section 7 consultations. As such, we are not reconsidering the boundaries of specific areas based only on the primary PBFs.
Comment 4: One commenter noted that the proposed critical habitat includes areas of Juan de Fuca Canyon that are deeper than the 200 m depth contour, and felt that these areas should be excluded from the designation because they are outside of the depth band used to define critical habitat.
Response: As detailed in the Draft and Final Biological Reports NMFS 2019a, 2021a, the 656.2-ft 200-m isobath was chosen as the western offshore boundary of the proposed critical habitat. The narrow Juan de Fuca canyon runs roughly southeast to northwest, bisecting the newly designated critical habitat. Here, the western boundary of the critical habitat aligns with the 200-m isobath to the north and south of the canyon, crossing the deeper mouth of the canyon. The canyons complex bathymetry, with many islands and inlets where the seafloor is shallower than 200 m, makes strict adherence to a 200-m cutoff impractical. More importantly, as noted in the Draft and Final Biological Reports, the Strait of Juan de Fuca including the deeper waters of the canyon is a high use area for the Southern Resident killer whales.
Portions of the canyon below 200 m in depth are included in the existing critical habitat designation for inland waters, making the new critical habitat consistent with the previous designation. Therefore, the entire area is included in the designated critical habitat.
Comment 5: One commenter requested that we include Hood Canal in the critical habitat designation. The commenter acknowledged that Southern Resident killer whales have not been documented in Hood Canal since 1995, but argued that the canal could be considered either previously occupied habitat essential to recovery of the species or occupied habitat on the basis that whales alive at the time of listing had been documented in the canal. The commenter also contended that the currently occupied habitat is inadequate for conservation, making it necessary to
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protect and restore areas that were previously occupied but are now unoccupied areas even those unoccupied at the time of listing. Also, the commenter felt that efforts to improve salmon abundance in the canal would improve the quality of the habitat and result in conservation benefits when or if Southern Resident killer whales re-enter the canal.
Response: Similar comments were submitted in response to the 2006
proposed rule to designate critical habitat for inland waters 71 FR 34571;
June 15, 2006. As described in the 2006
final rules response to comments 71
FR 69054; November 29, 2006, at that time we considered the best available data and concluded that we lacked sufficient information to either consider Hood Canal as occupied at the time of listing, or to determine that additional unoccupied habitat in Hood Canal was essential for the conservation of the species. With respect to the proposed revision to the critical habitat, the commenter did not provide new information beyond what was previously available, and we have found no additional evidence to consider Hood Canal as either occupied at the time of listing or essential for the conservation of the species.
Section 35A of the ESA defines critical habitat as areas either occupied or not occupied by the species at the time that it is listed. For this revision to critical habitat we considered the best available information on killer whale distribution and, similar to our conclusion in 2006, we do not have sufficient data to consider Hood Canal as occupied by the species at the time of listing, nor are there available data supporting that this area is currently occupied by the species. In regards to designation of unoccupied habitat areas, we considered the best available information, and we are not aware of any unoccupied areas, including Hood Canal, that meet conservation needs of Southern Residents or are essential for their conservation. Therefore, we are not designating Hood Canal as either occupied or unoccupied critical habitat.
If the whales do return to Hood Canal in response to increasing populations of prey species, we will continue to work with the local community to gather information and reevaluate the importance of Hood Canal as Southern Resident killer whale habitat.
Comment 6: Two commenters opposed the designation of Southern Resident killer whale critical habitat in Southeast Alaska. Another commenter urged NMFS to continue gathering information about the Southern Resident killer whales use of Alaskan
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waters to inform potential expansion of critical habitat in the future.
Response: We did not propose and are not designating areas in Southeast Alaskan waters because of the limited information about the whales distribution, behavior, and habitat use in these areas. NMFS continues to evaluate any reported sightings of killer whales in Alaska for matches to the Southern Resident killer whale DPS.
Unoccupied Areas Comment 7: One commenter requested that we consider further expanding the area designated as critical habitat to account for potential impacts from climate change. The commenter felt that we had not analyzed the best available science on potential climate change impacts before concluding that insufficient evidence exists to designate unoccupied areas as critical habitat.
Response: Contrary to the commenters claims, we thoroughly considered all available evidence regarding the potential impacts of climate change on Southern Resident killer whales and presented these findings in the Draft Biological Report NMFS 2019a. Our guidance provides that when designating critical habitat, NMFS will consider proactive designation of unoccupied habitat when there is adequate data to support a reasonable inference that the habitat is essential for the conservation of the species because of the functions it is likely to serve as climate changes NMFS 2016. At this time, there exists very little information regarding the potential impacts of climate change on the distribution and habitat use of Southern Resident killer whales over the longer-term, including whether or how the geographic areas occupied by the species might change. The commenter did not cite any additional research or information that would improve our understanding of unoccupied areas that would likely become essential for the conservation of the Southern Resident killer whales as climate changes. Thus, there remains insufficient evidence to identify unoccupied areas based on potential impacts from climate change. As noted in the Biological Report, it will be important to continue monitoring Southern Resident killer whales and their prey to evaluate responses to climate change and ensure appropriate habitat protections.
We also note that we have the authority to revise critical habitat designations as appropriate and in light of new information, which provides a mechanism for addressing and incorporating changing understandings
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