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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations 84 FR 49214, September 19, 2019 and does not include sound as an essential feature for Southern Resident killer whale critical habitat. We will continue to consider the habitat-related effects of anthropogenic sound on the whales via the prey and passage essential features, as detailed in this section. Under the ESA, we separately consider effects of anthropogenic sound on individual whales which is scaled up to the listed species unit and habitat-related impacts which is scaled up to the critical habitat designation. For the former, NMFS has an established framework and thresholds for considering impacts to marine mammals hearing specifically temporary or permanent hearing loss, as outlined in our Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing NMFS
2018, and NMFS is also working to refine our guidance on the effects of anthropogenic sound on marine mammal behavior. We will continue to evaluate and manage direct and indirect effects including consideration of noise interference with whale communication and social behavior of anthropogenic sound on individual animals and the population relative to the jeopardy standard in ESA section 7 analyses and through MMPA incidental take authorizations.
Adverse habitat-related effects may stem from the introduction of a chronic noise source that degrades the value of habitat by interfering with the soundreliant animals ability to gain benefits from that habitat i.e., altering the conservation value of the habitat.
NMFS does not currently have a methodology to establish quantifiable thresholds for determining when chronic noise reaches a level such that it alters the conservation value in this way. However, we can, and do, consider these effects qualitatively.
In our experience evaluating effects to Southern Resident killer whale critical habitat in inland waters, we are able to assess adverse habitat-related effects of anthropogenic sound by evaluating impacts to the prey and passage essential features of current critical habitat for Southern Resident killer whales, and thus we do not consider it necessary to identify sound as a separate essential feature. For example, we evaluate whether chronic anthropogenic sound might alter the conservation value of habitat by reducing the availability of the whales prey in a particular foraging area by reducing the effective echolocation space for the whales to forage or communicate, or creating a barrier that restricts movements through or within an area
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necessary for migration, resting, social behavior, or foraging. Thus, the prey and passage essential features as defined in this rule will provide a measure of protection from noise degradation to the extent that an action might cause such noise that would interfere with the whales ability to use e.g., move through as in passage or access prey and successfully feed within the critical habitat prey feature, including social communication for prey sharing. We will use the same approach for evaluating these effects in coastal critical habitat, consistent with our existing practice in inland waters critical habitat.
In response to public comments requesting that the final rule include sound as an essential feature and emphasizing the importance of communication space for social behavior and pod cohesion see Comment 8 and response, we revised the Biological Report to clarify that the effects of sound on communication and social behavior are considered in the passage and prey features as well as effects of sound on individual whales themselves via section 7, outside of critical habitat designation, see sections V.B.24, Final Biological Report, NMFS
2021a. Additionally, we will continue to consider and address impacts of anthropogenic noise on the whales themselves, which would also take into consideration elements including communication and social behavior as they can relate to the health and fitness of individual whales.
Specific Areas Within the Geographical Area Occupied by the Species The three specific areas within the geographic area range occupied by the species identified in the 2006 critical habitat designation are carried forward unchanged by the critical habitat revision. We refer to them here as Inland Waters Areas 13 to differentiate them from the six newly designated specific coastal areas Coastal Areas 1
6. In the 2006 designation, a lack of data precluded us from determining whether any specific areas within the coastal range met the definition of critical habitat. Research and data collected since then have allowed us to better characterize the whales habitat use NMFS 2021a. These data are now sufficient to identify specific areas within the whales coastal range.
CBD requested that we identify critical habitat in areas of the Pacific Ocean between Cape Flattery, Washington, and Point Reyes, California, extending approximately 47
mi 76 km offshore. This requested area was based mainly on the extent of the
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whales movements from NMFS
satellite tag data: Tagged animals traveled as far south as Point Reyes and as far offshore as 47 mi. However, the petition stated that because NMFS was continuing to analyze data describing the Southern Resident killer whales use of coastal and offshore waters, the petition requested we refine this proposal, as necessary, to include additional inhabited zones or to focus specifically on areas of concentrated use CBD 2014. To delineate specific areas, we relied on the satellite tag data but also incorporated information on sightings, acoustic data, and prey sampling. As a result, our specific areas differ in their boundaries from the petitioners request. For example, there are documented sightings of Southern Resident killer whales south of Point Reyes, so the boundary of the critical habitat is farther south than the petitioners requested.
We identified six specific areas off the U.S. West Coast, delineated based on their habitat features, including variation in the primary feature, and variation in predominant habitat use for example foraging versus traveling by Southern Resident killer whales.
They encompass most but not all of the whales U.S. coastal range, and vary in size. The ESA and our regulations provide the agency discretion to determine the scale at which specific areas are identified 50 CFR 424.12; 81
FR 7413; February 11, 2016. We selected the boundaries between areas to reflect the spatial scale of the whales movements and behavioral changes e.g., where tagged whales were primarily traveling versus observed foraging, as well as to align with some existing fishery management boundaries e.g., Pigeon Point and Point Sur are geographic points used by the PFMC in salmon management; PFMC 2016. Each area contains all three essential features, but the primary feature varies by area and the primary feature of each area is noted below. Identifying six areas with varying primary features, instead of just one comprehensive critical habitat area containing all three features, will assist with section 7 consultations and analyses about how actions would affect the conservation value of an area based on the primary feature. In addition, identifying six areas rather than one also assisted in analyzing benefits and costs in the ESA Section 4b2 Report NMFS 2021b. More information about each area, including descriptions of the whales use of the area based on sighting, satellite tagging, and acoustic detection data, can be found in the Final Biological Report NMFS 2021a. All
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