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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations 4 The likelihood that DOD activities would destroy or adversely modify critical habitat; based on the DODs activities at the site, and that NMFS
would require project modifications to reduce or avoid these impacts;
5 The level of protection provided to one or more essential feature by existing DOD safeguards e.g., management or protection already in place; and 6 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.
Depending on available information, each of these factors may weigh either in favor of exclusion of the area or in favor of designation of the area. We give great weight to the national security and defense missions 81 FR 7226; February 11, 2016. We weighed this information against the benefits of designating the site, which was based on the conservation value rating for the specific areas overlapping the DOD
site, as well as more specific information regarding Southern Resident killer whale use of the DOD
site. As documented in the Draft ESA
Section 4b2 Report NMFS 2019b, based on the great weight afforded military impacts, the unique training in support of military readiness that occurs within the QRS, and the potential delay in critical missions in order to complete adverse modification analyses, in the proposed rule 84 FR 49214, September 19, 2019 we found that the national security impacts tip the scale and outweigh the limited impact to conservation values in just over onefourth of the identified critical habitat Areas 1 and 2 where those areas overlap with the QRS and a 10-km buffer around it. We determined that the benefit to national security of excluding this particular area outweighed the conservation benefit of designation, and exclusion of the area would not result in extinction of the species DPS.
Therefore, we proposed excluding the QRS and a 10-km buffer around it from the critical habitat designation. The total area proposed for exclusion was 1,687.9
mi2 4,371.5 km2 or 9.7 percent of potential coastal critical habitat.
As described above, we received many public comments on the proposed rule 84 FR 49214, September 19, 2019
opposing the exclusion because it would allow the Navy to conduct activities such as sonar and testing of explosives in the excluded area without considering effects to critical habitat.
Comments also noted that part of the QRS overlaps with the OCNMS.
As discussed in the Final ESA Section 4b2 Report NMFS 2021b, to weigh
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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 specific area for the Southern Resident killer whale; 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 requested additional information from the Navy regarding its activities in the portion of the QRS that also falls within the OCNMS.
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 its request for exclusion of this particular area, the Navy pointed to the extensive range of planned activities, which are described in its 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 its initial request, dated December 5, 2018, the
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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 habitat, this would in turn impact their ability to test and field new systems and platforms. To avoid potential, additional, spatial restrictions on their 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. This buffer was then added to the QRS boundaries that overlapped with the Southern Resident killer whale critical habitat.
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 the Southern Resident killer whales within this portion of the buffer are not outweighed by national security impacts of including that portion at this time.
The Navy does not currently use or currently plan to use explosives in the northeast corner of the QRS extending along the East side of the QRS, where it overlaps with the OCNMS; therefore,
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