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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
broad and not adequately justified.
Several commenters stated that planned activities, such as use of sonar and explosives, can impact the whales and their prey, and additional mitigation measures or restrictions on the Department of the Navys Navy activities within the QRS should be implemented. One commenter noted that the QRS overlaps with the OCNMS, an area that requires a higher standard of resource protection. Several commenters noted that the QRS area was within a high use foraging and passage area for Southern Resident killer whales. Some commenters noted that the 10-km buffer overlaps and is adjacent to priority Chinook salmon rivers and expressed concern that the exclusion may impact their ability to access prey. Several commenters suggested not excluding from the critical habitat designation a northsouth nearshore corridor for passage through the QRS. Commenters requested we reconsider the Navys request for this exclusion given the importance of the area for Southern Resident killer whales.
Acknowledging the requirement to balance military readiness needs when designating critical habitat, one commenter made several points in favor of the exclusion, noting the low number of training and testing events that the Navy expected to carry out within the QRS and that those activities would be subject to review under section 101a5A of the MMPA and section 7
of the ESA.
Response: As discussed in the Draft and Final ESA Section 4b2 Report NMFS 2019b, 2021b, to weigh the national security impacts against conservation benefits of a potential critical habitat designation, we considered the size of the requested exclusion and the amount of overlap with the specific critical habitat area;
the relative conservation value of the particular area for the Southern Resident killer whales; the importance of the site to the Navy mission and military readiness; the likelihood that the Navys activities would destroy or adversely modify critical habitat, and the likelihood that NMFS would require project modifications to reduce or avoid these impacts; 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. In response to the public comments, we reconsidered these factors, information provided by the Navy, and also requested additional information from the Navy regarding
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their activities in the portion of the QRS
that also falls within the OCNMS.
In making our decision with respect to this particular area, we did so within the framework of our joint NMFS/
USFWS policy on implementation of section 4b2 81 FR 7226, February 11, 2016 Section 4b2 Policy.
Specifically, when a DOD agency requests an exclusion on the basis of national-security or homeland security impacts, it must provide a reasonably specific justification of a probable incremental impact on national security that would result from the designation of that specific area as critical habitat 81 FR 7226; February 11, 2016. Where the request is substantiated with such a reasonably specific justification, we give great weight to those concerns in analyzing the benefits of exclusion.
The QRS and proposed 10-km buffer comprise about 39 percent of Area 1
Coastal Washington/Northern Oregon Inshore and about 25 percent of Area 2
Coastal Washington/Northern Oregon Offshore, and about 28 percent of Areas 1 and 2 combined, but a very small portion of the total critical habitat designations for the Southern Resident killer whale 8.5 percent. The QRS and associated buffer also have a significant degree of overlap with the OCNMS, where certain activities are prohibited or not authorized, including oil, gas, or mineral exploration, development, or production; discharging or depositing any material or other matter; drilling into, dredging, or otherwise altering the seabed, with some exceptions 15 CFR
922.152. Because of these prohibitions, the likelihood of other Federal activities being proposed in this area of the QRS
may be limited.
In support of their request for exclusion of this particular area, the Navy pointed to the extensive range of planned activities, which are described in their Final Northwest Training and Testing NWTT Supplemental Environmental Impact Statement SEIS
published on September 18, 2020, and stated that any additional, future modifications to these activities to minimize impacts on Southern Resident killer whale critical habitat would impact the Navys ability to meet mission requirements. The Navy pointed to the use of explosives, in particular, as being likely to have adverse effects on killer whale prey, although not likely at the population level for salmon prey. In their initial request, dated December 5, 2018, the Navy stated that if additional mitigation requirements result in having to halt, reduce in scope, or geographically or seasonally constrain testing activities to prevent adverse effects to critical
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habitat, this would in turn impact its ability to test and field new systems and platforms. To avoid potential, additional, spatial restrictions on its activities within the QRS, the Navy also requested exclusion of an additional 10km buffer around the QRS from the critical habitat designation. The Navy determined the size for this buffer using sound attenuation modeling to calculate the farthest distance at which fish would be expected to be injured from the largest explosive the Navy can reasonably foresee testing in the QRS;
and, in subsequent communications, the Navy further clarified that the size of the buffer also incorporated uncertainty for updates in resource-related science, changes in oceanographic conditions that could reduce attenuation, and the evolution of military technologies that may behave differently in the environment.
We continue to find that the Navy has provided a reasonably specific justification to support the requested exclusion of the QRS, and consistent with our Section 4b2 Policy 81 FR
7226; February 11, 2016, we gave great weight to these concerns when analyzing the benefits of exclusion. Our consideration of the multiple factors discussed, coupled with the potential delay in critical missions in order to complete adverse modification analyses, caused us to continue to find that the benefits of excluding the QRS due to national security impacts outweigh the benefits of designating this portion of Areas 1 and 2 as critical habitat for the Southern Resident killer whales.
However, we are modifying our proposed exclusion of the buffer area.
Specifically, we are not excluding a portion of the 10 km buffer area around the northeast corner of the QRS, extending along the East side of the QRS, where it overlaps with the OCNMS. As detailed in the Section 4b2 Report NMFS 2021b, we concluded the benefits of designating critical habitat for Southern Resident killer whales within this portion of the buffer are not outweighed by national security impacts of including that portion at this time.
We acknowledge the concerns raised by the commenters regarding potential impacts to the whales and their prey as a result of certain Navy activities, such as sonar and explosives. The Biological and Conference Opinion on the Navys Northwest Training and Testing Activities, issued by NMFS on October 19, 2020, addresses activities within the QRS and analyzed the effects of the Navys planned activities on Southern Resident killer whales as well as their prey. As discussed in that consultation,
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