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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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of the species use of new areas over time 16 U.S.C. 1533a3Aii.
Essential Features Comment 8: A number of commenters, including those from the Marine Mammal Commission and the state of Washington, requested that we include sound as a fourth essential feature. These commenters pointed out that killer whales rely on sound to navigate, forage, mate, avoid predators, and communicate with one another, and emphasized the impacts of anthropogenic noise on the whales.
Several commenters argued that there now exists sufficient information to support including sound as an essential feature, and suggested we consider new science that has emerged since the 2006
designation, and were concerned that considering sound via the prey and passage essential features does not sufficiently address communication space for social behavior, which they pointed out is fundamental to motheroffspring bonding, pod cohesion, and ultimately the health and recovery potential of the DPS. One commenter maintained that by excluding sound as an essential feature, we fail to determine whether sound may require special management considerations or protections. Others were concerned that military activities, specifically would not be adequately addressed. Several commenters emphasized that if sound is not included as an essential feature, then the rule should describe more explicitly how communication space is encompassed within the prey and passage essential features.
Some commenters felt that we did not adequately justify the apparent inconsistency between the approach for Southern Resident killer whales and the approach we took in the critical habitat designations for two other ESA-listed odontocetes in U.S. waters: The Cook Inlet beluga whale DPS and the Main Hawaiian Islands insular false killer whale DPS, which include sound as a feature or a characteristic of a feature.
Several of these commenters also mentioned Canadas inclusion of sound as an element of critical habitat for Southern Resident killer whales in Canadian waters. They felt the approaches were contradictory, and asked for clarification to reconcile the differences.
One commenter stated their support for our determination in the proposed rule not to include sound as a fourth essential feature, noting the lack of data to support quantitative thresholds. The commenter felt that the effects of sound on the whales are more appropriately considered through the existing
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procedures for section 7 consultations and Marine Mammal Protection Act MMPA incidental take authorizations.
Response: As stated in the proposed rule, we considered the new information on killer whale responses to anthropogenic noise and the acoustic quality of habitats for whale populations that has become available since publication of the 2006 critical habitat designation for Southern Resident killer whales. Much of this new research was presented in the Draft Biological Report supporting the critical habitat proposal and we have incorporated additional publications submitted through the comment period or that have become available in the last year in the Final Biological Report NMFS 2021a supporting the final rule. Contrary to the concerns of some commenters, we did not ignore the new research, which enhances our ability to consider the effects of sound on the whales habitat through the prey and passage essential features, as well as impacts of sound in our analyses of effects to individual whales through section 7 consultations.
After carefully considering the studies cited by commenters seeking to include sound as a fourth essential feature, we are still not able to identify specific quantitative in-water sound levels or thresholds for communication, behavioral or displacement impacts on Southern Resident killer whales as requested by CBD and we consider effects of sound qualitatively see further explanation in this comment response, in the section Physical and Biological Features Essential to Conservation, and in the Biological Report, NMFS 2021a, section V.B.4.
Because potential impacts of sound are already addressed through qualitative section 7 analyses of the prey and passage features, as well as analyses of effects of sound on individual whales themselves, we have not included sound as a separate feature. We will, however, consider results of ongoing and future studies and will review and reconsider this conclusion as our scientific understanding of the acoustic ecology of Southern Resident killer whales advances.
We agree with commenters that communication space for social behavior is important for killer whales, and in the existing inland waters critical habitat, and as expected for the coastal areas designated in this final rule, we will continue to consider the effects of sound on these aspects of the Southern Resident killer whales life history through the passage and prey essential features as well as in section 7 analyses considering the impacts of noise on the whales themselves. In response to the
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concerns expressed in the comments, however, we have added more detail to the Final Biological Report NMFS
2021a, sections V.B.2., V.B.3, and V.B.4
to clarify that the effects of anthropogenic noise on communication and social behavior are and will continue to be evaluated through the prey and passage essential features, as well as analyses of effects to individual whales. Specifically, indirect impacts of anthropogenic noise on communication and social behavior are addressed in section 7 consultations when we 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. Specifically, effects of anthropogenic noise that result in take including harm to individual whales are currently addressed under section 7 of the ESA pursuant to the standard for considering whether a proposed action would jeopardize the continued existence of the species. For example, the effects of military noise on Southern Resident killer whales and other marine mammals, including on their communication space, are addressed through ongoing NMFS
permitting of U.S. Navy Northwest Training and Testing activities 85 FR
33914; June 2, 2020. In addition, if data indicate that anthropogenic noise from a particular Federal action is preventing or impeding access to prey or preventing or impeding successful feeding within designated critical habitat, then such effects could constitute an adverse effect on the prey essential feature and thus the designated critical habitat itself and for that reason would likely also be addressed under section 7 of the ESA pursuant to the standard for considering whether an action poses destruction or adverse modification to critical habitat. Thus, the critical habitat and 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 for foraging, migrating, social behavior, or access prey and successfully feed including social communication for prey sharing within the critical habitat. Furthermore, the critical habitat designations as finalized in this rule will result in the added requirement that Federal agencies explicitly analyze any relevant impacts of noise on Southern Resident prey species.

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