Endangered and threatened species: Critical habitat designations— Southern Resident killer whale,

[Federal Register: June 15, 2006 (Volume 71, Number 115)]

[Proposed Rules]

[Page 34571-34588]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr15jn06-17]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 060228057-6057-01; I.D. 022206D]

RIN 0648-AU38

Endangered and Threatened Species; Designation of Critical Habitat for the Southern Resident Killer Whale

AGENCY: National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION: Proposed rule; request for comment.

SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for the Southern Resident killer whale (Orcinus orca) distinct population segment (DPS), which was recently listed as endangered under the Endangered Species Act (ESA). Three specific areas are proposed for designation: The Summer Core Area in Haro Strait and waters around the San Juan Islands; Puget Sound; and the Strait of Juan de Fuca, which comprise approximately 2,564 square miles (6,641 sq km) of marine habitat. We propose to exclude 18 military sites, comprising approximately 112 square miles (291 sq km), because of national security impacts.

We are soliciting comments from the public on all aspects of the proposal, including information on the economic, national security, and other relevant impacts of the proposed designation, as well as the benefits to Southern Resident killer whales from designation. A draft economic analysis, biological report, and Section 4(b)(2) report conducted in support of this proposal are also available for public review and comment.

DATES: Comments on this proposed rule must be received by close of business on August 14, 2006. Public meetings have been scheduled for July 12, 2006, 7-9 p.m., at the Seattle Aquarium, Seattle, WA and July 13, 2006, 7-9 p.m., at the Whale Museum, Friday Harbor, WA. Requests for additional public hearings must be made in writing by July 31, 2006.

ADDRESSES: Comments may be submitted by any of the following methods:

E-mail: orcahabitat.nwr@noaa.gov. E-mail comments, with or without attachments, are limited to 5 megabytes.

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions at that site for submitting comments.

Mail: Submit written comments and information to Chief, Protected Resources Division, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274.

The proposed rule, maps, stock assessments, listing rule, biological and economic analyses, and other materials relating to this proposal can be found on our Web site at http://www.nwr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Lynne Barre at (206) 526-4745, or Marta Nammack at (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

Under the Endangered Species Act of 1973, as amended (ESA), we are responsible for determining whether certain species, subspecies, or distinct population segments (DPS) are threatened or endangered, and designating critical habitat for them (16 U.S.C. 1533). In November 2005, we listed the Southern Resident killer whale DPS as endangered under the ESA (70 FR 69903; November 18, 2005). At the time of listing, we also announced our intention to propose critical habitat for the Southern Resident killer whale.

Section 3 of the ESA defines critical habitat as ``(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * *, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * *, upon a determination by the Secretary that such areas are essential for the conservation of the species.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms ``conserve,'' ``conserving,'' and ``conservation'' to mean: ``to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.''

Section 4 of the ESA requires that, before designating critical habitat, we consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat is designated, section 7(a)(2) of the ESA requires that each Federal agency, in consultation with us and with our assistance, ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat.

Killer Whale Natural History

Killer whales are the world's largest dolphin. The sexes show considerable size dimorphism, with males attaining maximum lengths and weights of 29.5 feet (9 m) and 12,275 pounds (5,568 kg), respectively, compared to 25.3 feet (7.7 m) and 8,400 pounds (3,810 kg) for females (Dahlheim and Heyning, 1999). Adult males develop larger pectoral flippers, dorsal fins, tail flukes, and girths than females (Clark and Odell, 1999). Maximum life span is estimated to be 80-90 years for females and 50-60 years for males (Olesiuk et al., 1990). Animals are black dorsally and have a white ventral region extending from the chin and lower face to the belly and anal region. Each whale has a uniquely shaped and scarred dorsal fin and saddle patch, which permits animals to be individually recognized, as depicted in photo-identification catalogs, such as those compiled for the northeastern Pacific region (e.g., Black et al., 1997; Dahlheim, 1997; Dahlheim et al., 1997; van Ginneken et al., 1998; 2000; 2005; Matkin et al., 1999; Ford and Ellis, 1999; Ford et al., 2000).

Three distinct forms of killer whales, termed residents, transients, and offshores, are recognized in the northeastern Pacific Ocean. Although there is considerable overlap in their ranges, these forms display significant genetic differences due to a lack of reproductive interchange (Stevens et al., 1989; Hoelzel and Dover, 1991; Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001; Krahn et al., 2004). There are also important differences in ecology, behavior, morphology, and acoustics among these three forms (Baird, 2000; Ford et al., 2000).

Resident killer whales in U.S. waters are distributed from Alaska to California, with four distinct communities recognized: Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al., 2002; 2004). The Southern Resident DPS consists of three pods, identified as J, K, and L pods, that reside for part of the year in the inland waterways of Washington State and British Columbia (Strait of Georgia,

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Strait of Juan de Fuca, and Puget Sound), principally during the late spring, summer, and fall (Ford et al., 2000; Krahn et al., 2002). Pods visit coastal sites off Washington and Vancouver Island (Ford et al., 2000), but travel as far south as central California and as far north as the Queen Charlotte Islands. Offshore movements and distribution are largely unknown for the Southern Resident DPS.

Social organization in this region is based on maternal kinship. Most mating in the North Pacific is believed to occur from May to October (Nishiwaki, 1972; Olesiuk et al., 1990; Matkin et al., 1997). However, small numbers of conceptions apparently happen year-round, as evidenced by births of calves in all months. Calves remain close to their mothers during their first year of life, often swimming slightly behind and to the side of the mother's dorsal fin. Weaning age remains unknown, but nursing probably ends at 1 to 2 years of age (Haenel, 1986; Kastelein et al., 2003). Mothers and offspring maintain highly stable social bonds throughout their lives, and this natal relationship is the basis for the matrilineal social structure (Bigg et al., 1990; Baird, 2000; Ford et al., 2000). A matriline is usually composed of a female, her sons and daughters, and offspring of her daughters, and contains up to 17 individuals spanning up to five generations. Members maintain extremely strong bonds, and individuals seldom separate from the group for more than a few hours.

Although there is considerable overlap in the geographic ranges of Southern and Northern Resident killer whales, pods from the two communities have not been observed to intermix (Ford et al., 2000). Genetic analyses using nuclear (microsatellite) and mitochondrial DNA indicate that the two communities are most likely reproductively isolated from each other (Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001). Recent paternity analyses using microsatellite DNA indicate that resident males nearly always mate with females outside of their own pods, thereby reducing the risks of inbreeding (Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001).

Based on scale sampling and stomach contents studies, Southern Resident killer whales are known to consume 22 species of fish and one species of squid (Scheffer and Slipp, 1948; Ford et al., 1998; 2000; Ford and Ellis, 2005; Saulitis et al., 2000). Most published information originates from a single study (Ford et al., 1998; Ford and Ellis, 2005) in British Columbia, including southeastern Vancouver Island, that focused primarily on Northern Residents, relied on several field techniques susceptible to bias (e.g., surface observations and scale sampling), and reported on a relatively small sample of observations for Southern Residents. Of the 487 records of apparent fish predation events from 1974-2004, only 68 (14 percent) observations came from Southern Residents. While this information is limited, it is the best information available.

In this study, salmon were found to represent over 96 percent of the prey during the summer and fall. Chinook salmon (Oncorhynchus tshawytscha) were selected over other species, comprising over 70 percent of the identified salmonids taken. This preference occurred despite the much lower abundance of Chinook in the study area in comparison to other salmonids and is probably related to the species' large size, high fat and energy content, and year-round occurrence in the area. Other salmonids eaten in smaller amounts included chum (O. keta, 22 percent of the diet), pink (O. gorbuscha, three percent), coho (O. kisutch, two percent), and sockeye (O. nerka, one percent) salmon, and steelhead (O. mykiss, less than one percent) (Ford and Ellis, 2005). This work suggests an overall preference for Chinook salmon during the summer and fall, but also revealed extensive feeding on chum salmon in the fall. Rockfish (Sebastes spp.), Pacific halibut (Hippoglossus stenolepis), and Pacific herring (Clupea pallasi) were also observed during predation events (Ford and Ellis, 2005), but in much smaller amounts. This study may underestimate the extent of feeding on bottom fish (Baird, 2000) because it is more difficult to observe predation on bottom fish.

A number of smaller flatfish, lingcod (Ophiodon elongatus), greenling (Hexagrammos spp.), and squid have been identified in stomach content analyses of resident whales (Ford et al., 1998). Additional sampling of prey remains in 2004 and 2005 also indicate consistent primary selection of Chinook by the Southern Residents in the seasons sampled (NWFSC, unpubl. data).

The energy requirements of killer whales are about 85,000 kcal per day for juveniles, 100,000 kcal per day for immatures, 160,000 kcal per day for adult females, and 200,000 kcal per day for adult males (Osborne, 1999). Based on these values and an average size for five salmon species combined, Osborne (1999) estimated that adults must consume about 28-34 adult salmon daily and that younger whales (