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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
potential impacts to the Southern Resident killer whale critical habitat are unlikely to extend into the OCNMS. The Navy provided additional information to NMFS clarifying the impact to national security should the full 10 km buffer around the QRS not be excluded from designation as critical habitat. The Navy noted that the current limitation on conducting underwater explosives in this portion of the QRS is based on mitigation measures the Navy proposed in its NWTT SEIS September 2020 and associated ESA and MMPA compliance documentation, which preclude the use of all underwater explosives for training and testing within 50 nmi from shore, with the exception of mine countermeasures neutralization activities which occur in the QRS where it does not overlap with the OCNMS.
The Navy concluded it was practicable to implement this restriction; however, all Navy mitigation measures allow for deviations in consultation with NMFS
if driven by new and immediate national security requirements. Further, the Navy reviews its mitigation measures annually and can modify those mitigation measures as driven by evolving military readiness requirements, also in consultation with NMFS. The Navy stated that because techniques and tactics needed for national security can rapidly evolve, it is possible that modifications to current activities and the development of new technologies will require testing in areas that may not be currently utilized for underwater explosives.
Furthermore, the portion of the buffer that extends beyond 10 km into the OCNMS, which we are not excluding, comprises an area of very high conservation value to the whales. As described in the Final ESA section 4b2 Report, we considered the conservation value of Areas 1 and 2 to be very high relative to the other coastal areas, given the whales high use of portions of the areas particularly for foraging, the documented use by all three pods, and year-round use of the areas NMFS 2021b. Not excluding this portion of the buffer also creates a corridor of critical habitat between the coastline and the eastern boundary of the QRS for most of the length of the QRS exclusion, which supports whale passage between critical habitat areas to the north and south of the QRS
exclusion. Given the very high conservation value of this area for the whales, though there are national security impacts as described by the Navy, we found that the benefits of excluding this portion of the buffer due to national security impacts did not
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outweigh the conservation benefits of designating this area e.g., see Appendix A Figure 4, Section 4b2 Report, NMFS 2021b as critical habitat for the Southern Resident killer whales. NMFS
notes that should the Navys requirements change in such a manner that materially affects how it will conduct activities within the QRS, the Navy will provide NMFS with an updated explanation of impacts to national security and NMFS will reconsider whether those impacts outweigh the benefits of retaining a portion of the 10 km buffer areas as critical habitat.
With this reduction in extent of the 10
km buffer within OCNMS, the total area of exclusion in the final rule is 1,400.4
mi2 3,627 km2 or 8.1 percent of potential coastal critical habitat. This final excluded area comprises 24.4
percent and 22.7 percent of areas 1 and 2 each, respectively, but generally not in portions of areas 1 and 2 that have the highest use by Southern Resident killer whales.
Final Revised Critical Habitat Designation We are designating approximately 15,910 mi2 41,207 km2 of marine habitat within the area occupied by Southern Resident killer whales along the coasts of Washington, Oregon, and California. Combined with the currently designated critical habitat in inland waters of Washington 2,560 mi2 6,630
km2, the total designation comprises approximately 18,470 mi2 47,837 km2.
In both the currently designated and new critical habitat, areas with water less than 20 ft 6.1 m deep are not included as critical habitat. As described in the preamble to the final rule designating critical habitat in inland waters 71 FR 69054; November 29, 2006, due to a lack of bathymetry data, we were not able to subtract the shallow areas from the estimate of the inland critical habitat area, so the estimated area of this portion of the critical habitat is an overestimate.
However, high-quality shoreline and bathymetry data were available for the outer coastal areas, so we were able to interpolate a 20-ft depth contour as the inshore boundary and include only the designated areas in the coastal area calculations. However, the coastal shoreline product we used to delineate the coastal areas, NOAAs Continually Updated Shoreline Product, uses mean high water as the vertical datum the surface of zero elevation to which heights are referenced, so the inshore boundary of coastal critical habitat is 20
ft of water depth relative to mean high water and, therefore, our estimates of
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area are more accurate. This is in contrast to the inshore boundary for critical habitat in inland waters, which uses 20 ft water depth relative to extreme high water, which overestimates total area.
The designated areas are occupied and contain physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The Navys QRS and a modified 10-km buffer around it is not included in the designation and is not included in the area calculations above because we determined the benefits to national security of exclusion that is, avoiding the impact that would result from designation outweigh the benefits of designation. We determined that the economic benefits of excluding any of the areas do not outweigh the benefits of designation. Therefore, we are not excluding any areas based on economic impacts. Section 4b2 does not allow the agency to exclude areas if exclusion will result in extinction of the species.
We are excluding only a small percentage of the whales habitat 8.1
percent of coastal habitat; 7.0 percent of coastal and inland habitat combined because of impacts to national security.
The exclusion does represent a larger portion of the two specific critical habitat areas off the coast of Washington around 2324 percent of each of these two coastal areas, which are considered high-use and important foraging areas for Southern Resident killer whales.
But, the highest use areas for foraging are just south of the QRS, and only a small portion of the highest use areas are within the 10-km buffer or the QRS.
Given the small percentage of total coastal habitat and that most of the highest use by Southern Resident of Washington areas is not in the QRS, we conclude that the exclusion of these areas will not result in extinction of the Southern Resident killer whale DPS. No unoccupied areas are included in this designation.
Effects of Critical Habitat Designation Section 7a2 of the ESA requires Federal agencies, including NMFS, to ensure that any action authorized, funded or carried out by the agency agency action is not likely to jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. When a species is listed or critical habitat is designated, Federal agencies must consult with us on any agency action that may affect the listed species or its critical habitat. During the consultation, we evaluate the agency
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