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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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such potential modifications would provide conservation value to the species. Secondly, although the direct benefit that the statute provides is through section 7 consultation, designating critical habitat may carry additional benefits to the species beyond the protections from section 7a2 consultation. Specifically, these additional benefits, outlined in the Final ESA Section 4b2 Report NMFS
2021b, include facilitating implementation of section 7a1 of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the ESA.
Furthermore, other additional benefits include the generation of more detailed information about the status of Southern Resident killer whales, increasing education and awareness of parties involved in section 7 consultations and the public, which can lead to activities that benefit the killer whales or their habitat.
We continue to find that the expanded critical habitat is prudent.
Geographical Areas Occupied by the Species Comment 2: We received several comments regarding the proposal to designate critical habitat in waters deeper than 20 ft 6.1 m based on extreme high water. Some commenters felt that we should include waters shallower than 20 ft 6.1 m because nearshore areas support killer whale prey, making them essential to the conservation of Southern Resident killer whales. The importance of these habitats for salmon and forage fish was the predominant argument by commenters for including shallow waters as critical habitat for Southern Resident killer whales.
Commenters generally acknowledged that many nearshore areas are outside the geographical area occupied by the species, but viewed them as essential for the conservation of the species because they provide critical habitat to the Southern Resident food chain, including juvenile salmon and their forage fish prey. Two commenters argued the unoccupied nearshore areas should be designated as critical habitat because they contain the essential feature of prey species of sufficient quantity, quality and availability to support individual growth, reproduction and development, as well as overall population growth.
One believed that limiting critical habitat to occupied areas is not adequate to ensure the conservation of the species, while another felt that designating these areas as critical habitat would help support salmon and
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killer whale resilience to climate change impacts. While most comments on this topic requested the inclusion of all nearshore areas in the critical habitat designation, a few requested the inclusion of just those nearshore, as well as estuarine, and freshwater areas associated with Chinook salmon rivers for stocks identified by NMFS and the Washington Department of Fish and Wildlife WDFW as priority stocks for Southern Resident killer whales.
One commenter argued that killer whales do occupy the waters shallower than 20 ft in depth, citing observational data from shore-based sightings of Southern Resident killer whales in the San Juan Islands foraging and socializing in shallow waters when transiting the area. The commenter argued that these waters are accessible to the killer whales at high tide, and that the shallow waters may constitute active space around individual whales in which they can interact with each other and their prey. They argued that nearshore waters should be designated as critical habitat because activities taking place in nearshore waters could adversely modify adjacent deeper waters within the proposed critical habitat. Lastly, for the purposes of regulatory simplicity, one commenter sought to align the critical habitat boundary with the high water line regulatory boundary used by the USACE.
Response: The final critical habitat designation is consistent with the proposed rule and does not include waters shallower than 20 ft 6.1 m based on mean high water. Similar to the critical habitat for inland waters, there are little to no data to support that the whales use the shallow areas regularly, or could physically access some areas, even during high tide conditions.
The limited information providing new observations of Southern Resident killer whale use of shallow waters in the San Juan Islands we received is not sufficient to consider all shallow areas as occupied or essential to the conservation of Southern Resident killer whales. The observations provided represent rare occurrences and were located in inland waters rather than outer coastal waters. Also, based on data from four satellite-tagged Southern Resident killer whales, only less than 1
percent of the whales outer coastal locations were in depths less than 6 m Northwest Fisheries Science Center NWFSC unpubl. data, see the Biological Report, NMFS 2021a.
Satellite-based locations are not exact, and we dont know the tidal conditions for these observations. We are not
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revising the inland waters critical habitat designation at this time, and neither the bathymetry of the San Juan Islands nearshore areas nor the unique observations of Southern Resident killer whales in these areas would be representative of outer coastal areas.
Regulatory alignment with USACE or other management boundaries is not a basis for designating critical habitat in unoccupied areas. Additionally, extreme high water data for delineating boundaries within geographic information system GIS software along the coast was not readily available for many locations. Therefore, similar to the proposed rule, we continue to use the 20-ft 6.1-m depth relative to mean high water as the eastern boundary of coastal critical habitat.
Not designating waters shallower than 20 ft 6.1 m based on mean high water as critical habitat does not preclude consultation on activities that occur in these shallow nearshore or inland freshwater areas. ESA section 7
requirements that Federal agencies ensure their actions are not likely to destroy or adversely modify critical habitat applies equally to actions occurring outside of designated critical habitat as to actions occurring within designated critical habitat. Furthermore, specific inland freshwater areas are designated as critical habitat for ESAlisted salmon runs 70 FR 52487;
September 2, 2005 and 70 FR 52629;
September 2, 2005, including certain priority Chinook runs NMFS and WDFW 2018, and are, therefore, subject to section 7 consultations.
Specific Areas Comment 3: Many commenters expressed support for the proposed geographic extent of the revised critical habitat in U.S. ocean waters from Cape Flattery, Washington, south to Point Sur, California. Two commenters felt that the coastwide designation of critical habitat was too broad, and sought to limit the spatial extent of the designation to areas of regular or consistent use. They disputed the southern and western boundaries and proposed alternative limitations to the boundaries of the specific areas, including by time and by the locations of primary essential features. Other commenters requested inclusion of additional areas because they felt the current proposed areas were not sufficient to conserve the whales.
One commenter referred to 16 U.S.C.
15325C, noting ESA directives that critical habitat not include the entire geographical area which can be occupied by the listed species, except in special circumstances. They referred to
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