Friday, February 2, 2001
Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for the Alaska-Breeding Population of Steller’s Eider; Final Rule
VerDate 11
DEPARTMENT OF THE INTERIOR This genus is grouped with the other sea the autumn molt, winter, and spring ducks under the Tribe Mergini (eiders, migration staging periods, the listed Fish and Wildlife Service scoters, mergansers, and allies), Alaska-breeding population intermixes Subfamily Anatinae (ducks), and the with the more numerous and unlisted 50 CFR Part 17 Family Anatidae (swans, geese, and Russian Pacific population in marine RIN 1018–AF95 ducks). waters of southwest Alaska. During The Steller’s eider is the smallest of these times, it is unknown whether the Endangered and Threatened Wildlife four eider species; both sexes are Alaska-breeding population and Plants; Final Determination of approximately 45 centimeters (17–18 concentrates in distinct areas or Critical Habitat for the Alaska-Breeding inches) long (Bellrose 1980). The disperses throughout the species’ Population of the Steller’s Eider plumage of the breeding adult male is marine range. white, black, and chestnut. The head is The historical breeding range of the AGENCY: Fish and Wildlife Service, white with black eye patches and light Alaska-breeding population of Steller’s Interior. green tinging on the forehead, lores eiders is not clear. The historical ACTION: Final rule. (space between bill and eye), and below breeding range may have extended the eye. The chin and throat are black, discontinuously from the eastern SUMMARY: We, the U.S. Fish and separated from a broad black collar Aleutian Islands to the western and Wildlife Service (Service), designate around the lower neck by a white ring. northern Alaska coasts, possibly as far critical habitat for the Alaska-breeding The shoulders and back are also black east as the Canadian border. In more population of the Steller’s eider and each tertial (inner wing) feather is recent times, breeding occurred in two (Polysticta stelleri), a threatened species bicolored longitudinally, with the inner general areas, the Arctic Coastal Plain listed pursuant to the Endangered half being white and the outer half being on the North Slope, and western Alaska, Species Act of 1973, as amended (Act). bluish-black, giving the back a striped primarily on the Y–K Delta. Currently, Critical habitat for the Alaska-breeding appearance when the wing is folded. Steller’s eiders breed on the western population of the Steller’s eider The speculum (patch of colored feathers Arctic Coastal Plain in northern Alaska, includes breeding habitat on the Yukon- on the wing) is dark blue and the breast from approximately Point Lay east to Kuskokwim Delta (Y–K Delta) and 4 and belly are chestnut shading to black Prudhoe Bay, and in extremely low units in the marine waters of southwest posteriorly. A black spot is present on numbers on the Y–K Delta. Alaska, including the Kuskokwim each side of the breast. The flanks, On the North Slope, anecdotal Shoals in northern Kuskokwim Bay, and rump, and under-tail feathers are black, historical records indicate that the Seal Islands, Nelson Lagoon, and and the wedge-shaped tail is dark species occurred from Wainwright east, Izembek Lagoon on the north side of the brown. Males in eclipse plumage (dull nearly to the Alaska-Canada border Alaska Peninsula. These areas total plumage assumed prior to molt) during (Anderson 1913; Brooks 1915). There approximately 7,333 square kilometers late summer and fall are entirely are very few nesting records from the (approximately 2,830 square miles (mi2); mottled brown except the wings are like eastern North Slope, however, so it is 733,300 hectares; 1,811,984 acres) and the adult breeding male’s and the upper unknown if the species commonly 1,363 km (852 miles (mi)) of shoreline. wing-coverts are white. Females and nested there or not. Currently, the Section 4 of the Act requires us to juveniles are mottled brown year-round, species predominantly breeds on the consider economic and other impacts of and the female adult has a blue western North Slope, in the northern specifying any particular area as critical speculum bordered in white. half of the National Petroleum Reserve—Alaska (NPR–A). The majority habitat. We solicited data and comments Geographic Range from the public on all aspects of the of sightings in the last decade have proposed rule and economic analysis. Three breeding populations of occurred east of the mouth of the Section 7 of the Act prohibits Steller’s eiders are recognized, two in Utukok River, west of the Colville River, destruction or adverse modification of Arctic Russia and one in Alaska. The and within 90 km (56 mi) of the coast. critical habitat by any activity funded, majority of Steller’s eiders breed in Within this extensive area, Steller’s authorized, or carried out by any Russia and are identified by separate eiders generally breed at very low Federal agency. breeding and wintering distributions densities. (Nygard et al. 1995). The Russian The Steller’s eider was considered a DATES: The effective date of this rule is Atlantic population nests west of the locally ‘‘common’’ breeder in the March 5, 2001. Khatanga River and winters in the intertidal, central Y–K Delta by FOR FURTHER INFORMATION CONTACT: Ted Barents and Baltic seas. The Russian naturalists early in the 1900s (Murie Swem, Northern Alaska Ecological Pacific population nests east from the 1924; Conover 1926; Gillham 1941; Services, U.S. Fish and Wildlife Service, mouth of the Khatanga River and Brandt 1943), but the bird was reported 101 12th Ave., Rm 110, Fairbanks, AK winters in the southern Bering Sea and to breed in only a few locations. By the 99701 (telephone 907/456–0203; northern Pacific Ocean, where it 1960s or 70s, the species had become facsimile 907/456–0208). presumably intermixes with the Alaska- extremely rare on the Y–K Delta, and SUPPLEMENTARY INFORMATION: breeding population. Neither Russia- only six nests have been found in the breeding population is listed as 1990s (Flint and Herzog 1999). Given Background threatened or endangered; only Steller’s the paucity of early recorded The Steller’s eider was first described eiders that nest in Alaska are listed as observations, only subjective estimates by Peter Simon Pallas in 1769, and threatened under the Act. can be made of the Steller’s eider’s given the scientific name Anas stelleri This rule for critical habitat addresses historical abundance or distribution on Pallas. After seven name changes, it was the Alaska-breeding population of the Y–K Delta. grouped with other eiders as Somateria Steller’s eiders, the only population A few Steller’s eiders were reportedly stelleri. It is now considered distinct listed under the Act, but individuals found nesting in other locations in from the other eiders, and is the only from the Alaska-breeding population are western Alaska, including the Aleutian species in the genus Polysticta visually indistinguishable from unlisted Islands in the 1870s and 80s (Gabrielson (American Ornithologists’ Union 1983). Russia-breeding Steller’s eiders. During and Lincoln 1959), Alaska Peninsula in
VerDate 11
the 1880s or 90s (Murie and Scheffer lagoons or near reefs (C. Dau, pers. Population Status 1959), Seward Peninsula in the 1870s comm. 1999; D. Zwiefelhofer, Service, Determining population trends for (Portenko 1989), and on Saint Lawrence pers. comm. 1999). An unknown Steller’s eiders is difficult; however, the Island as recently as the 1950s (Fay and number of Steller’s eiders winter along Steller’s eider’s breeding range in Cade 1959). It is unknown how the Russian and Japanese coasts. They Alaska appears to have contracted, with regularly these areas were used or have been reported from the Anadyr the species disappearing from much of whether the species ever nested in Gulf (Konyukhov 1990), Komandor its historical range in western Alaska intervening areas. (Commander) and Kuril islands in (Kertell 1991) and possibly a portion of After breeding, Steller’s eiders move Russia (Kistchinski 1973; Palmer 1976), its range on the North Slope. In areas to marine waters where they undergo a and near Hokkaido Island in northern where the species still occurs in Alaska, flightless molt for about 3 weeks. The Japan (Brazil 1991). the frequency of occurrence (the majority are thought to molt in four Prior to spring migration, thousands proportion of years in which the species areas along the Alaska Peninsula: to tens of thousands of Steller’s eiders is present) and the frequency of Izembek Lagoon (Metzner 1993; Dau stage at a series of locations along the breeding (the proportion of years in 1999a; Laubhan and Metzner 1999), north side of the Alaska Peninsula, which the species attempts to nest) have Nelson Lagoon, Herendeen Bay, and including several areas used during both apparently declined in recent Port Moller (Gill et al. 1981; Petersen molt and winter such as Port Heiden, 1981; Dau 1999a). Additionally, smaller decades (Quakenbush et al. 1999). Port Moller, Nelson Lagoon, and We do not know whether the species’ numbers are known or thought to molt Izembek Lagoon (Larned et al. 1994; breeding population on the North Slope in a number of other locations along the Larned 1998). From there, they cross is currently declining, stable, or western Alaska coast, around islands in Bristol Bay, and it is thought that improving. Although Steller’s eiders are the Bering Sea, along the coast of Bristol virtually the entire Alaska-wintering counted there during extensive aerial Bay, and in smaller lagoons along the adult population spends days or weeks Alaska Peninsula (Swarth 1934; Dick waterfowl and eider surveys, few are feeding and resting in northern seen in most years because the species and Dick 1971; Petersen and Sigman Kuskokwim Bay and in smaller bays 1977; Wilk et al. 1986; Dau 1987; occurs at very low density and the along its perimeter (W. Larned, Service, surveys sample only a small proportion Petersen et al. 1991; Day et al. 1995; Dau pers. comm. 1999). The number seen 1999a). Others molt in the Russian Far- of the suitable breeding habitat. Based there varies among years, presumably on observations at Barrow, we have East, primarily near Kamchatka, but due to variation in sea ice conditions where these individuals nest is found that breeding population size and that may slow northward migration in breeding effort vary considerably among undetermined. some years. An estimated 42,000 have Only rudimentary information on the years, therefore, detecting statistically concentrated in early May in marine distribution of Alaska-breeding significant population trends and Kuskokwim Bay when lingering sea ice Steller’s eiders is available. Recoveries accurately estimating population size is has delayed northward migration of banded Steller’s eiders suggest that difficult. the Alaska-breeding population (Larned et al. 1994). Steller’s eiders also Despite the difficulty in detecting intermixes with Russian-Pacific concentrate along the southwest coast of statistically significant trends with breeders in southwest Alaska during the Y–K Delta and southern coast of North Slope aerial survey data, these molt. Steller’s eiders banded during Nunivak Island during spring migration data can be used to estimate breeding molt at Izembek and Nelson lagoons (Larned et al. 1994). population size. Several dozen Steller’s have been found during the breeding Steller’s eiders move north through eiders are usually detected during aerial season near Barrow (Jones 1965; the Bering Strait between mid-May and breeding-pair waterfowl surveys on the Service, U.S. Geological Survey, and early June (Bailey 1943; Kessel 1989). North Slope each year (Service unpub. North Slope Borough, unpub. data) as Subadults may remain in wintering data (a)). These surveys sample 2–3 well as in a number of locations in areas or along the migration route percent of the suitable waterfowl Russia (Jones 1965). More recently, during the summer breeding season, as breeding habitat annually. When satellite telemetry tracked post-breeding they have been noted in Nelson Lagoon extrapolated to the entire study area, the movements of three individuals that in July (M. Petersen, U.S. Geological number of sightings suggests that bred at Barrow in 2000. Two of the three Survey, pers. comm. 1999), around hundreds or low thousands (point apparently molted near the Kuskokwim Nunivak Island from July to October (B. estimates ranged from 534 to 2,543 in Shoals and the third is believed to have McCaffery, Service, pers. comm. 1999) 1989–1999) of Steller’s eiders would be molted at Seal Islands on the north side and offshore and along the lagoons of St. detected if the entire region were of the Alaska Peninsula (Service unpub. Lawrence Island in summer (Fay 1961). surveyed each year. Actual population data.). Steller’s eiders have been seen in size is probably higher, however, In general, wintering Steller’s eiders lagoons along the northwest coast of because these estimates are made with occupy shallow, near-shore marine Alaska in late July, and these also may the assumption that all Steller’s eiders waters in much of southwest and south be subadults (Day et al. 1995). within the sample area are detected. coastal Alaska. They are found around Fall migration is protracted, with Based on knowledge of other waterfowl islands and along the coast of the Bering Steller’s eiders moving south through species, this is almost certainly not the Sea and north Pacific Ocean from the the Bering Strait from late July through case, but information is inadequate to Aleutian Islands, along the Alaska October (Kessel 1989), depending on age estimate a species-specific visibility Peninsula and Kodiak Archipelago, east and sex of individuals and whether correction factor. Based on these to lower Cook Inlet. Along open migration takes place before or after observations, it seems reasonable to coastline, Steller’s eiders usually remain wing molt (Jones 1965). Fall migration estimate that hundreds or thousands of within about 400 meters (m) (400 yards routes are poorly understood, but Steller’s eiders occur on the North (yd)) of shore normally in water less groups have been seen passing near Slope. Similar aerial surveys are than 10 m (30 feet (ft)) deep (C. Dau, shore at Nunivak Island (Dau 1987) and conducted on the Y–K Delta, but no Service, pers. comm. 1999) but can be Cape Romanzof (McCaffery and Steller’s eiders have been detected in found well offshore in shallow bays and Harwood 1997). these surveys so population size and
VerDate 11
trends cannot be estimated. habitat,’’ recommended against of the Act. This claim is currently being Nonetheless, comparison of historical additional special protection near the litigated. and recent observations indicate that a village of Barrow. Of the five In March 1999, the Southwest Center reduction in the species’ abundance has independent experts who provided peer for Biological Diversity, Center for occurred on the Y–K Delta (Kertell review, four commented on critical Biological Diversity, and Christians 1991). habitat designation. One suggested Caring for Creation filed a lawsuit in Federal District Court in the Northern Previous Federal Action studies of breeding ecology to identify critical habitat requirements, one District of California against the In December 1990, James G. King of recommended designating critical Secretary of the Department of the Juneau, Alaska, petitioned us to list the habitat near Barrow, one suggested Interior for failure to designate critical Steller’s eider under the Act. In May ‘‘absolute protection’’ for Steller’s eiders habitat for five species in California and 1992, we determined that listing was nesting anywhere in Alaska, and one two in Alaska. These species include warranted but precluded by higher mentioned that protecting ‘‘coastal the Alameda whipsnake (Masticophis listing priorities elsewhere. In 1992, a molting and wintering range’’ was lateralis euryxanthus), the zayante status review of the species concluded perhaps more important than breeding band-winged grasshopper that listing the Alaska-breeding habitat. (Trimerotropis infantilis), the Morro population as threatened was On June 11, 1997, we listed the shoulderband snail (Helmintholglypta warranted, although the available Alaska-breeding population of Steller’s walkeriana), the Arroyo southwestern information did not support listing the eiders (62 FR 31748) as threatened. That toad (Bufo microscaphus californicus), species worldwide (57 FR 19852). A decision included a determination that the San Bernardino kangaroo rat proposed rule to list the Alaska- designation of critical habitat was not (Dipodomys merriami parvus), the breeding population of Steller’s eiders prudent at that time. Service regulations spectacled eider (Somateria fischeri), as threatened was published in the (50 CFR 424.12(a)(1)) state that and the Steller’s eider. Federal Register on July 14, 1994 (59 FR designation of critical habitat is not In the last few years, a series of court 35896). Appropriate Federal and State decisions have overturned Service prudent if designation would not be agencies; borough, city, and village determinations regarding a variety of beneficial to the species. Section 7(a)(2) governments; scientific and species that designation of critical of the Act requires Federal agencies to environmental organizations; and other habitat would not be prudent (e.g., ensure, in consultation with the Service, interested parties were contacted and Natural Resources Defense Council v. that activities they fund, authorize, or encouraged to comment. Shortly U.S. Department of the Interior, 113 F. carry out are not likely to jeopardize the thereafter, a new Service policy (July 1, 3d 1121 (9th Cir. 1997); Conservation continued existence of listed species. At 1994; 59 FR 34270) was implemented Council for Hawaii v. Babbitt, 2F. Supp. the time of our determination, we stated requiring that listing proposals be 2d 1280 (D. Hawaii 1998)). Based on the that critical habitat designation would reviewed by at least three independent standards applied in those judicial specialists. The comment period was provide no additional benefit to Steller’s opinions and the availability of new reopened in June 1995 to seek peer eiders because protection of the species’ information concerning the species’ review, and appropriate parties were habitat would be ensured through habitat needs, we recognized the value again contacted and encouraged to section 7 consultations, the recovery in reexamining the question of whether comment. A final determination on process, and, as appropriate, through critical habitat for Steller’s eider would whether listing was warranted was the section 10 habitat conservation be prudent. Accordingly, the Federal further delayed by a national planning process. Government entered into a settlement moratorium on listing (Public Law 104– We initiated recovery planning for the agreement whereby we agreed to 6) implemented in April 1995, which Steller’s eider in 1997. The Steller’s readdress the prudency of designating prevented final determination on listing Eider Recovery Team was formed, critical habitat for Steller’s eider. actions for the remainder of the fiscal consisting of eleven members with a After reviewing the best scientific and year; that moratorium was later variety of expertise in Steller’s eider commercial data available, we proposed extended until April 1996. biology, conservation biology, to withdraw the previous finding that We received comments on listing population biology, marine ecology, the designation of critical habitat for the Steller’s eiders from a total of nine Native Alaskan culture, and wildlife Steller’s eider was not prudent. On parties during the two comment management. The Recovery Team is March 13, 1999 (65 FR 13262), we periods. Of the comments, four developing a draft Steller’s Eider proposed to designate nine areas in supported listing, four were neutral, and Recovery Plan, and we expect the draft northern, western, and southwestern one, the Alaska Department of Fish and Recovery Plan to be available for review Alaska as critical habitat for the Steller’s Game, opposed listing. We also received in 2001. eider. On April 19, 2000 (65 FR 20938) peer review from five recognized In October 1998, The Wilderness we extended the comment period until experts on eider or sea duck population Society and seven other national and June 30, 2000. On July 5, 2000 (65 FR monitoring, modeling, or management; regional environmental organization 41404) we extended the comment all five supported listing the Alaska- filed a lawsuit in Federal District Court period until August 31, 2000. On July breeding population of Steller’s eiders objecting to the Department of the 31, 2000 (65 FR 46684) we published as threatened or endangered. Two Interior decision to undertake oil and the notice to hold a public hearing. On environmental organizations (The gas leasing in the National Petroleum August 24, 2000 (65 FR 51577) we Wilderness Society and Greenpeace) Reserve-Alaska, Wilderness Society, et announced the availability of the draft recommended designating critical al. v. Babbitt, Civ. No. 98–02395 economic analysis and extended the habitat in current and historical (D.D.C.). One of the Plaintiffs claims in public comment period until September breeding habitat, wintering habitat along this litigation is that the Service’s failure 24, 2000. the Alaska Peninsula, and other marine to designated critical habitat (i.e., the We have made this final critical areas. The North Slope Borough ‘‘not prudent’’ determination) for habitat determination based upon the supported listing but, although not spectacled and Steller’s eiders was best scientific and commercial specifically mentioning ‘‘critical arbitrary and capricious and in violation information available. However, we
VerDate 11
recognize that we do not have complete caused the species’ decline or would Another information gap that was information on the distribution of this limit recovery. noted at the time the Alaska-breeding species at all times of the year. If In the three years since listing, population of Steller’s eiders was listed information becomes available research and survey efforts have begun pertains to non-breeding season indicating that additional or fewer areas to provide additional information on the distribution. There is considerable are essential for the conservation of the species’ ecology. Most recent information on the use of Izembek and species, or may need special information on the distribution of Nelson lagoons, and to a lesser extent management considerations and Steller’s eiders on the North Slope is other nearby areas on the Alaska protections, we may reevaluate our derived from two extensive, Peninsula, during molt and winter. In critical habitat designation, including standardized aerial surveys that sample these areas, repeated surveys have proposing additional critical habitat or for waterfowl breeding pairs and eiders quantified the variation in use within proposing deletion or boundary across much of the Arctic Coastal Plain. and among years. In contrast, there is refinement of existing critical habitat. Although these surveys include a vast much less information from the majority of the species’ vast marine range in State of Knowledge of the Steller’s Eider area, the sampling intensity is low (the waterfowl breeding pair and eider Alaska. In some areas, surveys have The Alaska-breeding population of surveys sample approximately 2 and 4 only been conducted during fall and/or the Steller’s eider was listed as percent of the Arctic Coastal Plain each spring, have only been conducted a very threatened in June, 1997 (62 FR 31748). year, respectively). Low sampling few times, or have never been At that time, we noted that there was intensity, combined with a low density conducted (such as large portions of the considerable uncertainty about the of Steller’s eiders, results in very few Kodiak Archipelago). Thus, our historical distribution and abundance of Steller’s eiders being detected by these understanding of distribution and how Steller’s eiders in Alaska. Although surveys. In 1999 and 2000, intensive it varies within and among years is very qualitative information suggested that aerial surveys specifically targeting inadequate for large portions of the the range of the species had contracted Steller’s eiders with a sampling species’ non-breeding range. In February over the last century, there was intensity of 50 percent were conducted and March, 2000, aerial shoreline inadequate quantitative information in a block near Barrow, and in surveys were conducted along available to assess population size or additional blocks near Admiralty Bay thousands of kilometers of coastal trends. Thus, the decision to list the and Atqasuk in 1999 and 2000, southwestern Alaska in order to Alaska-breeding population was based respectively (Martin 2000a). These document the distribution of Steller’s primarily upon the near disappearance Steller’s eider surveys provided eiders (Larned 2000b). In general, these of Steller’s eiders from the Y–K Delta considerable new information, surveys found Steller’s eiders occurring and the indication that they may have including an indication that 200–500 over a wide area in groups of dozens or abandoned the eastern North Slope. pairs of Steller’s eiders may have hundreds, rather than larger At the time of listing, the available occupied an area south of Barrow concentrations of thousands. Exceptions information was also inadequate to comprising approximately 2,700 km2 were Izembek and Nelson lagoons, identify the factor or factors causing the (1,055 mi2) in both 1999 and 2000 where 17,571 and 10,391 Steller’s eiders species’ decline in Alaska. However, we (Martin 2000a). This finding contrasts were found in March 2000, respectively concluded that destruction or with the waterfowl breeding pair and (Larned 2000b). Further surveys are modification of habitat did not appear to eider surveys, which provided needed in marine areas in the future to have played a major role in the decline inadequate information to estimate better understand distribution and how in the Steller’s eider as a nesting species population size (and failed to detect any it varies within and among years. in Alaska because—(1) only a very small Steller’s eiders in the survey overlap Another aspect of non-breeding proportion of the species’ vast and area in 2000). This important finding season distribution that is poorly remote habitat in Alaska had been indicates that the population size and understood pertains to the Alaska- modified by humans; (2) other density of Steller’s eiders may be breeding population. In general, our waterfowl species continue to occur or considerably higher than that indicated knowledge of the marine distribution nest in large numbers in the limited by waterfowl breeding pair and eider and ecology of Steller’s eiders pertains areas with human presence and impact; surveys. No Steller’s eiders were seen in to the species as a whole, which is and (3) the only place where the the Admiralty Bay or Atqasuk blocks comprised of both the unlisted Russia- Steller’s eider is currently known to during the intensive Steller’s eider breeding population and the listed regularly nest in Alaska is near Barrow, surveys, although the species has been Alaska-breeding population. If the where they nest near gas pipelines, observed in these blocks during low- Alaska-breeding population selectively roads, airports, and other forms of intensity waterfowl and eider surveys in uses portions of the species’ broader human disturbance and habitat other years. Given the tremendous range, those areas are disproportionately modification. Possible factors that may annual variation in breeding population essential for the listed population’s have contributed to the species’ decline size and performance that is recovery. However, the available were mentioned in the final listing rule characteristic of the Steller’s eider, it is information has been inadequate to (62 FR 31748), including changes in the premature to draw conclusions about evaluate whether the populations mix numbers or diet of predators, hunting the absence of Steller’s eider freely or are somewhat segregated in the (directly through shooting and/or observations in these blocks during a marine environment. During 2000, three indirectly through the ingestion of spent single survey year. However, the adult Steller’s eiders that bred near lead shot pellets in wetlands), and apparent striking difference in density Barrow had satellite transmitters changes in the marine environment that between these survey blocks indicates attached to follow movements after the could affect Steller’s eider food or other the uneven distribution of the species breeding season. Two spent the molt resources. Although we speculated on and highlights the need for additional period at the Kuskokwim Shoals in possible factors causing decline, there intensive surveys throughout other northern Kuskokwim Bay while the was little or no information portions of the species’ range on the other spent this period at Seal Islands, demonstrating that any had actually North Slope. a lagoon on the north side of the Alaska
VerDate 11
Peninsula (Martin 2000b). Although the necessary to bring an endangered or a habitat designations identify, to the sample size is very small, these threatened species to the point at which extent known using the best scientific observations may suggest selective use listing under the Act is no longer and commercial data available, habitat of molting areas by members of the necessary. areas that provide essential life cycle Alaska-breeding population because all Section 4(b)(2) of the Act requires that needs of the species (i.e., areas on which three individuals molted in areas we base critical habitat proposals upon are found the primary constituent thought to support comparatively small the best scientific and commercial data elements, as defined at 50 CFR molting populations (limited survey available, after taking into consideration 424.12(b)) and may require special data showed that about 5,000 may molt the economic impact, and any other management considerations or near the Kuskokwim Shoals and 5,000– relevant impact, of specifying any protection. 10,000 may molt at Seal Islands). particular area as critical habitat. We Within the geographic area occupied Additional satellite telemetry is planned may exclude any area from critical by the species, we will designate only to acquire greater sample size and to habitat designation if the benefits of areas currently known to be essential follow birds through the winter; this such exclusion outweigh the benefits of and that may require special will provide additional information on including such area as part of the management considerations or the specific areas used during molt and critical habitat, provided the exclusion protection. Essential areas should winter by the Alaska-breeding will not result in the extinction of the already have the features and habitat population. species (section 4(b)(2) of the Act). characteristics that are necessary to In summary, since listing we have Critical habitat receives protection sustain the species. It should be noted; initiated satellite telemetry efforts to under section 7 of the Act through the however, that not all areas within the delineate the marine distribution of the prohibition against destruction or occupied geographic range of the Alaska-breeding population of Steller’s adverse modification of critical habitat species that contain the features and eiders. Additionally, because Steller’s with regard to actions carried out, habitats that supports the species are eiders are infrequently observed during funded, or authorized by a Federal essential and they may or may not standard aerial waterfowl surveys, we agency. Section 7 also requires require special management or have increased intensive aerial survey conferences on Federal actions that are protection. We will not speculate about efforts on the North Slope to better likely to result in the destruction or what areas might be found to be elucidate distribution and abundance. adverse modification of proposed essential if better information became However, both of these efforts are critical habitat. In our regulations at 50 available, or what areas may become preliminary and will require continued CFR 402.02, we define destruction or essential over time. If the information efforts to produce adequate information. adverse modification as ‘‘*** the available at the time of designation does Significant data gaps remain in our direct or indirect alteration that not show that an area provides essential understanding of abundance and appreciably diminishes the value of life cycle needs of the species, then the distribution on the North Slope, marine critical habitat for both the survival and area should not be included in the distribution during the non-breeding recovery of a listed species. Such critical habitat designation. Within the season (and how the distribution of the alterations include, but are not limited geographic area occupied by the species, Alaska-breeding population compares to to, alterations adversely modifying any we will not designate areas that do not that of the Russia-breeding population), of those physical or biological features now have the primary constituent factors causing decline and constraining that were the basis for determining the elements , as defined at 50 CFR recovery, and how the current status of habitat to be critical.’’ Aside from the 424.12(b), that provide essential life the species compares to historical added protection that may be provided cycle needs of the species. status. Each of these data gaps under section 7, the Act does not Our regulations state that, ‘‘The complicates the evaluation of critical provide other forms of protection to Secretary shall designate as critical habitat and determining which areas are lands designated as critical habitat. habitat areas outside the geographic area essential for the species’ recovery. We Because consultation under section 7 of presently occupied by the species only anticipate that development and the Act does not apply to activities on when a designation limited to its completion of a Steller’s Eider Recovery private or other non-Federal lands that present range would be inadequate to Plan will enhance our efforts to do not involve a Federal nexus, critical ensure the conservation of the species.’’ understand the roles of environmental, habitat designation does not afford any (50 CFR 424.12(e)). Accordingly, when physiological, and behavioral factors in additional protections under the Act the best available scientific and achieving recovery of this species. against such activities. commercial data do not demonstrate Section 4 of the Act requires that we that the conservation needs of the Critical Habitat designate critical habitat at the time of species require designation of critical Critical habitat is defined in section 3 listing and based on what we know at habitat outside of occupied areas, we of the Act as—(i) the specific areas the time of the designation. When we will not designate critical habitat in within the geographic area occupied by designate critical habitat at the time of areas outside the geographic area a species, at the time it is listed in listing or under short court-ordered occupied by the species. accordance with the Act, on which are deadlines, we will often not have Our Policy on Information Standards found those physical or biological sufficient information to identify all Under the Endangered Species Act, features (I) essential to the conservation areas of critical habitat. We are required, published in the Federal Register on of the species and (II) that may require nevertheless, to make a decision and July 1, 1994 (59 FR 34271), provides special management considerations or thus must base our designations on criteria, establishes procedures, and protection; and (ii) specific areas what, at the time of designation, we provides guidance to ensure that outside the geographic area occupied by know to be critical habitat. decisions made by us represent the best a species at the time it is listed, upon In order to be included in a critical scientific and commercial data a determination that such areas are habitat designation, the habitat must available. It requires our biologists, to essential for the conservation of the first be ‘‘essential to the conservation of the extent consistent with the Act and species. ‘‘Conservation’’ means the use the species.’’ Within the geographic with the use of the best scientific and of all methods and procedures that are range occupied by the species critical commercial data available, to use
VerDate 11
primary and original sources of public as well as land-managing representatives, and provided those information as the basis for agencies to the importance of these individuals who agreed to review the recommendations to designate critical areas. proposal with copies of the proposed habitat. When determining which areas Our decision to not designate critical rule and additional informational are critical habitat, a primary source of habitat throughout all of our proposed materials. Comments submitted by these information should be the listing critical habitat units does not imply that and other individuals with traditional package for the species. Additional these non-designated areas are ecological knowledge, transmitted either information may be obtained from a unimportant to Steller’s eiders. Projects in written form or orally during the recovery plan, articles in peer-reviewed with a Federal nexus that occur in these course of public meetings, have been journals, conservation plans developed areas, or anywhere within the range of considered during the development of by states and counties, scientific status Steller’s eiders, which may affect the final rule. surveys and studies, and biological Steller’s eiders must still undergo We reviewed available information assessments or other unpublished section 7 consultation. Our decision to that pertains to the habitat requirements materials (i.e., gray literature). Our peer not designate critical habitat in these and preferences of this species. review policy requires that we seek areas does not reduce the consultation Comments received through the public input from at least three scientists who requirement for Federal agencies review process provided us with are knowledgeable in subject matter participating in, funding, permitting, or valuable additional information to use relevant to each rule. carrying out activities in these areas. in decision making, and in assessing the Critical habitat designations do not potential economic impact of Methods signal that habitat outside the designating critical habitat for the designation is unimportant or may not In determining which areas are species. be required for recovery. Areas outside essential to the conservation of Steller’s Criteria Used To Identify Critical the critical habitat designation will eiders and may require special Habitat continue to be subject to conservation management considerations or actions that may be implemented under protection, we used the best scientific In accordance with section 3(5)(A)(i) section 7(a)(1) and to the regulatory and commercial information available. of the Act and regulations at 50 CFR protections afforded by the section Our information sources included data 424.12 in determining which areas to 7(a)(2) jeopardy standard and the from banding, satellite telemetry, aerial propose as critical habitat, we are section 9 take prohibition, as surveys, ground plot surveys, ground- required to base critical habitat determined on the basis of the best based biological investigations, maps, determinations on the best scientific available information at the time of the Geographic Information System data, and commercial data available and to action. We specifically anticipate that traditional ecological knowledge, and consider those physical and biological federally funded or assisted projects site-specific species information and features that are essential to the affecting listed species outside their observations. We discussed our critical conservation of the species and that may designated critical habitat areas may habitat proposal at 19 public meetings require special management still result in jeopardy findings in some and one public hearing. We convened a considerations and protection. Such cases. Similarly, critical habitat meeting of experts in the field of eider requirements include but are not limited designations made on the basis of the biology to provide us with information to: space for individual and population best available information at the time of useful in setting criteria and boundaries growth, and for normal behavior; food, designation will not control the for habitats essential to the conservation water, air, light, minerals, or other direction and substance of future of the Steller’s eider. Experts from nutritional or physiological recovery plans, habitat conservation whom we sought information included requirements; cover or shelter; sites for plans, or other species conservation representatives of State and Federal breeding, reproduction, rearing of planning efforts if new information agencies, the University of Alaska, a offspring; and habitats that are protected available to these planning efforts calls private consulting firm, and local from disturbance or are representative of for a different outcome. government. We also sought peer review the historic geographical and ecological Designating critical habitat does not, of the proposed rule from six recognized distributions of a species. Primary in itself, lead to recovery of a listed experts in eider or sea duck ecology; constituent elements for each critical species. Designation does not create a two submitted comments. Additionally, habitat unit are described below (see management plan, establish numerical we considered 334 comments received Determination). population goals, prescribe specific during the open comment period, We considered qualitative criteria in management actions (inside or outside including written comments, oral the selection of specific areas or units of critical habitat), set aside areas as comments received during meetings and for Steller’s eider critical habitat. Such preserves, or directly affect areas not one public hearing, and comments criteria focused on (1) identifying areas designated as critical habitat. Specific received by E-mail, regular mail, where Steller’s eiders consistently occur management recommendations for facsimile, and telephone. at relatively high densities; (2) critical habitat are most appropriately We made a concerted effort to solicit identifying areas where Steller’s eiders addressed in section 7 consultations for traditional ecological knowledge are especially vulnerable to disturbance specific projects, or through recovery regarding habitats that are important to and contamination due to flightlessness; planning. Steller’s eiders. We contacted and (3) identifying areas essential to Designation of critical habitat can representatives of regional governmental survival and recovery given our best help focus conservation activities for a and non-profit Native organizations and available data. listed species by identifying areas, both asked them to recommend individuals In defining critical habitat boundaries, occupied and unoccupied, which who may have traditional ecological we made an effort to avoid developed contain or could contain the habitat knowledge of eiders and their habitats areas, such as towns and other similar features (primary constituent elements and who may be willing to review the lands, which do not contain the primary described below) that are essential for Steller’s eider critical habitat proposal. constituent elements of Steller’s eider the conservation of that species. We attempted to contact all individuals critical habitat. Existing man-made Designation of critical habitat alerts the identified by the regional features and structures within the
VerDate 11
boundaries of the mapped units, such as the primary constituent elements and conservation of Steller’s eiders and is buildings, roads, pipelines, utility therefore are not critical habitat. For based on the best scientific and corridors, airports, other paved areas, example, waters greater than 9 m (30 ft) commercial information available. The and other developed areas do not deep are not believed to be used by essential features found on the contain one or more of the primary Steller’s eiders and are not described as designated areas may require special constituent elements and are therefore primary constituent elements. management consideration or protection not critical habitat. Federal actions Regardless of the boundaries of the to ensure their contribution to the limited to those areas, therefore, would critical habitat units, all waters greater species’ recovery. Our critical habitat not trigger a section 7 consultation, than 9 m (30 ft) deep are not critical designation of selected areas does not unless they may affect the species and/ habitat. imply that areas not designated may not or primary constituent elements in Critical Habitat Designation require special management adjacent critical habitat. Additionally, The designated critical habitat considerations or protections. some areas within the boundaries of the described below constitutes our best Area of designated critical habitat by critical habitat units may not contain assessment of areas essential for the land ownership is shown in Table 1.
TABLE 1.—APPROXIMATE CRITICAL HABITAT AREA (HA 1) BY UNIT AND OWNERSHIP
Unit Federal State Native Total
Yukon-Kuskokwim Delta ...... 190,800 0 65,300 256,100 Kuskokwim Shoals ...... 287,600 93,700 0 381,300 Seal Islands ...... 0 6,300 0 6,300 Nelson Lagoon (incl. Port Moller and Herendeen Bay) ...... 0 53,300 0 53,300 Izembek Lagoon ...... 0 36,300 0 36,300
Total ...... 478,400 189,600 65,300 733,300 1 Units are hectares. To convert to km2, multiply hectares by 0.01; to convert to acres, multiply hectares by 2.471; to convert to mi2, multiply hectares by 0.00386.
Unit 1: Yukon-Kuskokwim Delta existing human development and areas offshore. This unit encompasses not within the vegetated intertidal zone approximately 3,813 km2 (1,472 mi2) of The Yukon-Kuskokwim Delta critical (e.g., barren mudflats and lands above marine waters and about 184 km (115 habitat unit includes the vegetated the highest high tide line) are not mi) of shoreline (including the shoreline intertidal zone of the central delta from considered critical habitat. of barrier islands). This area is used by the Askinuk Mountains to northern Approximately 75 percent of the more than 5,000 Steller’s eiders during Nelson Island. This unit is comprised of Yukon-Kuskokwim Delta Nesting Unit molt, including individuals known to be 15 entire townships and 564 sections is located within the Yukon Delta from the listed, Alaska-breeding within 27 additional townships and National Wildlife Refuge, although a population, and is thought to be encompasses 2,561 km2 (256,100 ha) portion (up to 10 percent) is subject to extremely important during spring (980 mi2). This unit is one of only two selection by Native Village or Regional staging, when tens of thousands of known breeding sites for the Alaska- Corporations, under the terms of the Steller’s eiders congregate there prior to breeding populations. The boundaries Alaska Native Claims Settlement Act of moving northward as the sea ice breaks have been modified from those 1971. The remainder of the proposed up and recedes. The primary constituent proposed to eliminate upland habitat unit (approximately 25 percent) has elements for the Kuskokwim Shoals not likely to be used by Steller’s eiders, been conveyed to Native Village or Unit are marine waters up to 9 m (30 ft) resulting in an 18 percent reduction in Regional Corporations. deep and the underlying substrate, the area for this unit. Primary constituent associated invertebrate fauna in the Unit 2: Kuskokwim Shoals elements of Steller’s eider critical water column, and the underlying habitat in this unit include all land The Kuskokwim Shoals critical marine benthic community. within the vegetated intertidal zone, habitat unit is a subset of the proposed along with all open-water inclusions Kuskokwim Bay critical habitat unit. Unit 3: Seal Islands within that zone. The vegetated The final designated unit differs from The Seal Islands lagoon was originally intertidal zone includes all lands the proposed unit in two ways: (1) the proposed as a subunit of the North Side inundated by tidally influenced water southern portion (one of two of the Alaska Peninsula unit but is now often enough to affect plant growth, discontinuous portions of the proposed identified separately. It includes all habit, or community composition. unit) has been eliminated; and (2) the waters enclosed within the Seal Islands Waters within this zone are usually boundaries of the northern portion of lagoon and marine waters 400 m (1⁄4 brackish. Vegetative communities Kuskokwim Bay have been modified to mile) offshore of the islands and within this zone include, but are not reflect comments we received on the adjacent mainland between 159° 12′ W limited to, low wet sedge tundra, grass proposal and further analysis of eider and 159° 36′ W. It encompasses 63 km2 marsh, dwarf shrub/graminoid distributional data (see Summary of (24 mi2) and 104 km (65 mi) of (consisting of grasses and sedges) Changes from Proposed Rule section, shoreline. Thousands of Steller’s eiders meadow, high and intermediate below). The Kuskokwim Shoals critical molt in the Seal Islands, including at graminoid meadow, mixed high habitat unit includes a portion of least one individual known to be from graminoid meadow/dwarf shrub northern Kuskokwim Bay from the the listed, Alaska-breeding population, uplands, and areas adjacent to open mouth of the Kolavinarak River to near and significant numbers congregate water, low wet sedge and grass marsh the village of Kwigillingok, extending there again in spring prior to migration. habitats. Within the indicated border, 17–38 km (approximately 11–24 mi) The primary constituent elements in the
VerDate 11
Seal Islands include waters up to 9 m Rationale for the Final Designation the proposed critical habitat in this final (30 ft) deep, the associated invertebrate rulemaking is explained in detail below. fauna in the water column, the We stated in our proposed rule: ‘‘In Proposed North Slope Unit underlying marine benthic community, the absence of clearly defined recovery and where present, eelgrass beds and objectives or criteria, determining which The proposed North Slope Unit associated flora and fauna. physical and biological features are encompassed approximately 40,884 km2 essential for recovery is difficult. After (15,785 mi2) on the Arctic Coastal Plain. Unit 4: Nelson Lagoon considering these complicating factors, The boundaries of the proposed unit The Nelson Lagoon critical habitat we believe it is essential to the recovery were drawn to include about 96 percent unit includes all of Nelson Lagoon (and of the species to maintain the existing of the breeding-season observations of a 400 m (1⁄4 mile) buffer offshore of the population on the North Slope and Steller’s eiders made during aerial Kudobin Islands and the mainland west allow for recovery of the greatly surveys and all intervening suitable to 161° 24′ W) and portions of Port depressed population on the Y–K Delta. wetland habitat. None of this proposed Moller and Herendeen Bay. This Therefore, we believe that the following unit is designated as critical habitat at complex was originally proposed as a three components are essential for the this time. subunit of the North Side of the Alaska conservation of the Alaska-breeding We recognize the importance of Peninsula unit but is now identified population of Steller’s eiders: breeding habitat to support recovery of separately. The boundary has been (1) The North Slope breeding the Alaska breeding population of the changed where it crosses Port Moller subpopulation and its habitat must be Steller’s eider. In the proposed rule, we and Herendeen Bay to reflect further maintained sufficiently to sustain stated: ‘‘The North Slope breeding data analysis and comments on the healthy reproduction and allow for subpopulation and its habitat must be proposed units (see Rationale for the potential population growth; maintained sufficiently to sustain Final Designation section, below). This (2) The Y–K Delta subpopulation healthy reproduction and allow for unit encompasses 533 km2 (205 mi2) must be increased in abundance to population growth.’’ This need is and 238 km (149 mi) of shoreline. This decrease the Alaska-breeding exacerbated by the near extirpation of lagoon system is used by tens of population’s vulnerability to the species from the Y–K Delta, which thousands of Steller’s eiders during extirpation; and likely has significantly reduced the molt, including individuals known to be (3) Molting, wintering, and spring species’ distribution and abundance in Alaska. When we published our from the listed, Alaska-breeding staging habitat in the marine proposal to designate critical habitat we population. Tens of thousands also environment must be maintained to believed that the critical habitat winter in this area during many winters, ensure adequate survival during the designation should broadly identify and numbers build again during spring, nonbreeding season.’’ as up to 36,000 stage in the area prior those areas that we believe are essential to or early in spring migration. The We believe that those general to the conservation of the species. The primary constituent elements in Nelson statements about the conservation needs comments we received in response to Lagoon include waters up to 9 m (30 ft) of the Steller’s eider are accurate. the proposal suggested that we should deep, the associated invertebrate fauna However, in this final designation we define critical habitat in a more specific in the water column, the underlying have made a concerted effort to refine and precise manner. Further, some of marine benthic community, and where and translate those general statements the commenters believed that our present, eelgrass beds and associated into a critical habitat designation that proposed designation was not consistent flora and fauna. will provide the greatest conservation with the Act’s definition of critical benefit to the species possible. habitat (see Summary of Comments and Unit 5: Izembek Lagoon Therefore, this final rulemaking reflects Recommendations section). Therefore, Izembek Lagoon was originally significant changes to critical habitat we carefully reviewed the best available proposed as a subunit of the North Side areas from the proposed rulemaking. We information to ensure that our approach of the Alaska Peninsula unit but is now have substantially reduced the area of and the designation itself provided the identified separately. It includes all some critical habitat units and greatest benefit to the eider and met the waters of Izembek Lagoon, Moffett completely eliminated others. We have requirements of the Act. Lagoon, Applegate Cove, and Norma not added area to existing critical It is very difficult to determine what Bay, and waters 400 m (1⁄4 mile) offshore habitat units or added new critical area, or areas, of the North Slope is of the Kudiakof Islands and adjacent habitat units. The proposed rule was essential for the conservation for the mainland between 162° 30′ W and 163° based on the best scientific and species. Ideally, to define what is 15′ W. It encompasses 363 km2 (140 mi2) commercial information available when essential for recovery of the Alaska- of marine waters and 297 km (186 mi) the proposed rule was developed. The breeding population of Steller’s eider of shoreline. Like the Nelson Lagoon settlement agreement mandated a short we would have information on the complex, this lagoon system is time line for our evaluation of critical historical abundance and distribution. extremely important to Steller’s eiders, habitat. Consequently, when we The lack of recovery objectives for the being occupied during molt, winter, and developed the proposed rule we species also complicates making a spring staging by tens of thousands of included all areas that we thought might determination as to what areas are individuals, including some known to be essential to the conservation of the essential for recovery. More be from the listed, Alaska-breeding species, based on the best available importantly, we lack reliable scientific population. The primary constituent commercial and scientific information. data about the habitat preferences of elements in Izembek Lagoon include Following publication of the proposed nesting females and females with waters up to 9 m (30 ft) deep, the rule we thoroughly evaluated all broods. Therefore, we are currently associated invertebrate fauna in the available information to more precisely unable to ascertain why females nest in water column, the underlying marine identify those areas essential to the some areas, but not in another that benthic community, and where present, conservation of the species (see appear to be similar. However, we can eelgrass beds and associated flora and methods). Specific rationale for use the actual distribution of a species fauna. retention, modification, or exclusion of as evidence of which areas have the
VerDate 11
habitat features essential to the distribution, with density generally were inappropriate and went well conservation of the species, even if we decreasing as distance from Barrow to beyond the Act’s definition of critical do not have sufficient information to the south, east and west, increases. habitat. Others suggested that the lack of describe precisely what discriminates This conclusion, however, does not recovery criteria and paucity of hard those areas from other similar areas that clearly identify what specific area or data preclude a science-based lack the essential feature. areas are essential for the species’ determination of what area is essential. For example, the regularity of use, conservation. Assuming that density Unfortunately, none of the information combined with the density, number, or correlates with importance for presented helped us in determining proportion of the population that conservation, the area near Barrow is which specific areas were essential to occupies an area, may be indicative of likely most important to the species, the conservation of the Steller’s eider an area’s importance. Thus, we and the importance decreases with because each was based on assumptions evaluated all available information on distance from this core area. We believe of eider biology that may or may not be distribution to identify areas of that this core area near Barrow, where confirmed in future scientific studies. concentration under the assumption density and regularity of breeding Nonetheless, the Act requires us to that areas regularly used by dense appear to be notably higher than identify areas to be designated as critical aggregations, large numbers, or a high elsewhere, is essential for the Steller’s habitat based upon the best available proportion of the population are likely eider’s conservation. However, this area information. However, the relative to be more important to the species. In encompasses only a small proportion of benefits to the species of such a order to correctly interpret these data, the species’ range (about 1 percent) and designation must also be weighed in our we requested that eider experts review numbers (about 10 percent) on the decision as to where to designate critical the available distributional information North Slope. Thus, it is likely that this habitat. Subsection 4(b)(2) of the Act and provide their individual expert area alone is inadequate to support allows us to exclude areas from critical opinions on what is essential for recovery, and the area considered to be habitat designation where the benefits of recovery. Finally, we scrutinized all essential must include additional area. exclusion outweigh the benefits of comments received during the public However, adding additional area results designation, provided the exclusion will comment period for relevant in including incrementally more not result in the extinction of the information or opinion on this topic (we locations where the species has been species. specifically invited comment on what observed but those locations are The benefits of including lands in areas are essential for recovery; see 65 separated by increasingly more critical habitat are often relatively small. FR 13273). intervening area where no Steller’s The principal benefit of any designated Our best understanding of the bird’s eiders have ever been observed. During critical habitat is that activities that may range on the North Slope comes from aerial surveys that sample the Arctic affect it require consultation under annual aerial waterfowl surveys that Coastal Plain, only 136 records of section 7 of the Act. Such consultation sample the Arctic Coastal Plain. These Steller’s eiders have been obtained over would ensure that adequate protection data show that observations of the the entire 11-year aerial survey record, is provided to avoid adverse species, although scant in number, are an average of about 12 observations per modification of critical habitat. very widely distributed across the year. The combined area sampled over However, it is important to note that, as Arctic Coastal Plain west of the Colville 11 years totaled about 933,000 km2, so a result of the Alaska-breeding River (Quakenbush et al. 1999; Martin on average, one Steller’s eider was population of Steller’s eider being listed 2000a). With the exception of near the detected per 6,860 km2 surveyed. This as a threatened species, we already village of Barrow, at the northernmost average is lower further from Barrow; consult on activities on the North Slope point of Alaska, there are no outside of the 30 percent of the species’ that may affect the species. While these concentration areas where the number range nearest to Barrow where about consultations do not specifically or density of Steller’s eiders is notable half of the observations have occurred, consider the issue of adverse on a regional scale. Similarly, with the detections have averaged about one per modification of critical habitat, they exception of Barrow, there are no areas 10,000 km2 surveyed. address the very similar concept of where Steller’s eiders have been The specificity with which we can jeopardy to the species. Under most detected regularly, suggesting the designate critical habitat is constrained circumstances, consultations under the species occurs intermittently over most by the limited information currently jeopardy standard will reach the same of its North Slope range. A gradient in available (see State of Knowledge of the result as consultations under the density of observations is detectable, Steller’s Eider section). Nine Steller’s adverse modification standard. however, with the highest density eider experts provided six different Implementing regulations (50 CFR Part occurring near Barrow. Approximately opinions on what area is required to 402) define ‘‘jeopardize the continued 10 percent of the total observations conserve the species, ranging from all of existence of’’ and ‘‘destruction or occurred within a few miles of Barrow, the species’ currently known range to adverse modification of’’ in virtually an area that comprises <1 percent of the none (based on inadequate data), with identical terms. Jeopardize the species’ range on the North Slope. four intermediate variations intended to continued existence of means to engage Density declines with distance from capture different proportions of the in an action ‘‘that reasonably would be Barrow, with approximately 20 percent recent sightings. Although we expected * * * to reduce appreciably of the observations occurring within 5 specifically invited comment on where the likelihood of both the survival and percent of the range, 50 percent boundaries delimiting this area should recovery of a listed species.’’ occurring within about 30 percent of the be drawn, few commenters provided Destruction or adverse modification area, and 70 percent of the observations information or opinion on this topic. means an ‘‘alteration that appreciably occurring within 57 percent of the Two commenters suggested that the diminishes the value of critical habitat species’ current range. Thus, although species’ entire range, as defined by all for both the survival and recovery of a Steller’s eiders occur over a vast area on known historical and recent listed species.’’ Common to both the North Slope, the available data observations, is essential for recovery, definitions is an appreciable detrimental suggest that the Barrow area is the core while numerous others contended that effect on both survival and recovery of of the species’ North Slope breeding our proposed critical habitat boundaries a listed species, in the case of critical
VerDate 11
habitat by reducing the value of the important habitat. However, such the designation of considerable area habitat so designated. Thus, actions that benefits are largely negated by our where the species has never been result in an adverse modification inability to identify specific areas (other observed and that may not contain determination are nearly always found than the area around Barrow) on the essential habitat features. We believe to also jeopardize the species North Slope that are essential to there are strong implications regarding concerned, and the existence of a conservation of the species (i.e., habitat importance that are associated critical habitat designation does not providing meaningful educational with critical habitat designation. materially affect the outcome of information is dependent upon the Delineating critical habitat on the North consultation. Additional measures to ability to provide meaningful Slope at this time may mislead Federal protect the habitat from adverse information on the conservation needs agencies and others wishing to carry out modification are not likely to be of the species). Furthermore, we have activities on the North Slope about the required. been working closely with North Slope areas that are truly essential to the Since the Alaska-breeding population residents for years in order to engender recovery of the species. Although we of the Steller’s eider was listed in 1997, support for eider conservation. We have have adequate information to delineate we have consulted with Federal worked with the North Slope Borough other areas as being essential for agencies on a variety of actions to on cooperative research, survey, and Steller’s eiders at this time, we do not evaluate impacts to the species on the educational efforts for Steller’s eiders believe that we currently have adequate North Slope. In most cases, the since 1991, six years prior to the information to do so on the North Slope. consultations have determined that the species’ listing under the Act. We are One potential benefit of excluding an actions would not adversely affect currently engaged in several cooperative area from a critical habitat designation Alaska-breeding population of the efforts to alleviate threats and develop a is that doing so can foster unique Steller’s eiders because the projects long-term conservation strategy to conservation efforts. The North Slope occurred during seasons when the protect Steller’s eider habitat. Because Borough (Borough) has taken a eiders are absent and no permanent these efforts were under way before leadership role in such an effort for impact to habitat would result or critical habitat designation was conserving Steller’s eiders. The Borough because only a minimal amount of proposed (and before the species was invited the Service to join them in eider habitat would be affected or would listed, in some cases), we are certain studies in 1991, six years before listing, occur in areas where the species occurs that North Slope residents and their and subsequently commented in at low densities. In only a few cases local governments are well aware of the support of listing at the time the species have we determined that a proposed species’ plight and the need to address was proposed to be classified as project included habitat alterations that threats and protect important habitat. threatened. The Borough has provided might adversely affect Alaska-breeding Likewise, most Federal projects on the funds, logistic support (particularly population of Steller’s eiders. Our North Slope are conducted, funded, or housing and laboratory space) and biological opinions on these permitted by relatively few Federal personnel for studies at Barrow, without consultations provided reasonable and agencies. As a result, the Federal which most of the work accomplished prudent measures designed to minimize agencies involved with activities on the to date would have been impossible. the incidental take of the proposed North Slope are aware of the Alaska- The Borough has served as an essential projects on Alaska-breeding population breeding population of the Steller’s liaison to the local community, facilitating access to private lands of Steller’s eiders. When applicable, the eider’s threatened status and the need to reasonable and prudent measures otherwise closed to investigation, and consult, and additional educational included provisions to minimize the involving local citizens in research and benefits would be very limited. For all proposed project’s impact to habitat. educational programs. The Borough has these reasons, then, we believe that Therefore, because of the species’ consistently believed that conservation designation of critical habitat has little abundant habitat on the North Slope within their jurisdiction could best be educational benefit on the North Slope. and the protections provided though the accomplished in the absence of a critical current consultation process, we can In contrast, the benefits of excluding habitat designation, and refraining from envision no benefit that critical habitat the North Slope from critical habitat designation in the Barrow area would be designation would have imparted in the designation appear to be greater than the the best way to encourage the consultations conducted to date. benefits of including it. We continuation and expansion of our Furthermore, we have considered the acknowledge that some portion of the mutual conservation efforts. The local- Steller’s eider’s conservation needs, and proposed North Slope unit is essential Federal partnership approach has we believe that future section 7 to the recovery of the species. Moreover, resulted in considerable progress on consultations on any proposed action on we believe that these lands may require conservation of Steller’s eiders and their the North Slope that would result in an special management considerations and habitat, and provides substantial adverse modification conclusion would protections given the extent of oil and incentive for all parties to avoid altering also result in a jeopardy conclusion. gas exploration and development has the existing cooperative relationship. Thus, the principal regulatory benefit occurred in the area and may reasonably Compared with all other portions of from a critical designation for the listed be anticipated in the future. However, to the breeding range, the greatest potential population of Steller’s eider on the designate an area at this time, without for future take (from all sources) occurs North Slope is expected to be small. a more reliable biological basis, would in the immediate vicinity of Barrow, There are also educational benefits likely convey an inaccurate message because of the relatively high density of associated with designation as critical about the size and location of the area Steller’s eiders and intensity of human habitat, such as informing the public needed for recovery. We believe that to activity. With the support of the which areas are important for the long- designate a small area, such as that near Borough, the Service has initiated a term survival and conservation of the Barrow, would exclude considerable conservation planning effort for Barrow species. Critical habitat could also habitat that will likely ultimately prove with the goal of maintaining or potentially foster a sense of ownership to be important to the species. increasing the number of Steller’s eider for the resource, encouraging concerned Conversely, to designate a significantly breeding pairs and their productivity. individuals to act as caretakers of larger area would undoubtedly result in The plan is envisioned as a
VerDate 11
comprehensive package that will identification and implementation of reconnaissance indicates that the plant combine elements of habitat recovery actions. We will continue our communities found on areas above 7.6 preservation on private lands held by efforts to document the distribution and m in elevation do not provide the the village corporation, community- abundance of Steller’s eiders on the habitat thought to be used by Steller’s wide education and outreach, and North Slope and research into the eiders in the Y–K Delta. Further, no research/monitoring. The success of this factors causing decline. We will known historical or recent nest sites effort depends on the continued continue our efforts to develop a occur in the proposed critical habitat cooperation of the Borough and local visibility correction factor for the that has been excluded from this final landowners. We believe that not species, which will be integral to rule. Therefore, we believe that the designating critical habitat in the developing abundance estimates. excluded area is not essential to the Barrow region will foster unique Further, we will continue to investigate conservation of the species. The conservation partnerships that are the breeding habitat needs of the proposed area not included in this final essential to the conservation of the Steller’s eider on the North Slope and to rule is 55,359 ha (136,792 ac), a 17.7 species. improve our ability to delineate any percent reduction in total area. In summary, at this time the benefits areas essential to the conservation of the Definitive population trend of including the North Slope in critical species. Our FY 2001 budget included information was lacking at the time this habitat for the Steller’s eider include $600,000 earmarked by Congress to fund species was listed (62 FR 31748), but minor, if any, additional protection for work by the Alaska Sea Life Center population decline was inferred from an the eider and would serve little or no (ASLC) and the Service on recovery apparent contraction of range, educational functions. The benefits of actions for the spectacled and Steller’s particularly in western Alaska. The excluding the North Slope from being eiders, including the development of recovery plan, including recovery goals, designated as critical habitat for the better information upon which to base is still in preparation. It is reasonable, Steller’s eider include the preservation critical habitat delineations. We will however, to predict that re- of a unique local-Federal partnership work closely with the ASLC to identify establishment of a viable breeding that we believe is essential to future the studies that would be most helpful. population on the Y–K Delta will be an conservation actions, and elimination of In particular, we will seek studies that element of the plan, given that the the negative effects that we believe would provide information that will decision to list the species was based, to would result from a designation based help us to identify the habitat needs of a large extent, on its near-disappearance on the limited biological information both eider species, and we will seek the from the Y–K Delta. Increasing the currently available to us. We have assistance of our partners in carrying abundance of the Y–K Delta determined that the benefits of out such studies. subpopulation will likely decrease the exclusion of the North Slope from Should additional information listed, Alaska-breeding population’s critical habitat designation outweigh the become available that changes our vulnerability to extirpation; therefore benefits of delineating critical habitat on analysis of the benefits of excluding any we consider the habitat contained the North Slope. Our conclusion with of these (or other) areas compared to the within this unit essential to the respect to this balancing is made in the benefits of including them in the critical conservation of the species. context of designating other areas as habitat designation, we may revise this We believe that special management critical habitat for the Steller’s eider. final designation accordingly. Similarly, considerations and protections may be Not only are we designating marine if new information indicates any of needed for the essential features areas, in which Steller’s eider these areas should not be included in (constituent elements) found within populations are more concentrated and the critical habitat designation, we may Unit 1, because lead shot present in the hence more vulnerable to a single revise this final critical habitat environment is affecting the quality of adverse action, but we are also designation. If, consistent with available the species habitat and poses a designating breeding habitat in the Y–K funding and program priorities, we elect continuing threat to the species. Delta. The differing facts relating to to revise this designation, we will do so those areas lead to different results through a subsequent rulemaking. Proposed Units 3–9: Marine Units under the balancing required by section Unit 1: Yukon-Kuskokwim Delta Nesting The following units in Alaskan 4(b)(2). Furthermore, we have Unit (Proposed Unit 2) marine waters were proposed as critical determined that excluding the North habitat: Slope will not result in the extinction of The proposed Yukon-Kuskokwim the species. Consequently, in Delta Nesting Unit encompassed Shore- Unit Area accordance with subsection 4(b)(2) of approximately 3,114 km2 (1,202 mi2) on (km2) line (km) the Act, these lands have not been the outer coastal zone of the central Y– designated as critical habitat for the K. The boundaries of the proposed unit Nunivak Island ...... 205 612 Steller’s eider. were drawn to encompass historical Kuskokwim Bay ...... 12,848 730 We will continue to protect occupied (pre-1970s) and recent nest sites and Alaska Peninsula— intervening areas. The boundaries of the North Side ...... 2,008 1,029 breeding habitat on the North Slope as Eastern Aleutians ...... 892 2,397 appropriate through section 7 Yukon-Kuskokwim unit have been Alaska Peninsula— consultations, the section 9 prohibition modified from those proposed to reflect South Side ...... 3,420 5,344 on unauthorized take, and other further analysis of topography Kodiak Archipelago ...... 1,344 3,902 mechanisms. We will expand our information from large scale (1:63,360 Kachemak Bay/Ninilchik 1,142 444 conservation efforts with the Native scale) maps, information from biologists community, industry, local with extensive field experience in the The majority of the proposed marine governments, and other agencies and area, and the advice of eider experts. We units were eliminated from this final organizations on the North Slope to excluded land that appeared to be over rule. The four units that are designated address the recovery needs of the eider. 7.6 m (25.0 ft) in elevation, and areas as critical habitat are subsets of the Additionally, we will soon complete the that field biologists described as not proposed Kuskokwim Bay and North development of a Steller’s eider suitable for eiders (e.g., an area outside Side of the Alaska Peninsula units. The recovery plan which will include the of the vegetated intertidal zone). Field designated units and their areas are:
VerDate 11
significant proportion of the population. population may not mix randomly with Unit Area Shore- (km2) line (km) Therefore, we used the number of birds the Russia-breeding population during occurring in each area as an indicator of the non-breeding season. As a result, we Kuskokwim Shoals ...... 3,813 184 how important that area is to the established a second criterion to be used Seal Islands ...... 63 104 species. This approach was such that only those areas known to be Nelson Lagoon (includ- used by the listed Alaska-breeding ing portions of Port recommended by the eider experts, who Moller and identified the density or number of population would be considered Herendeen Bay) ...... 533 238 birds occupying an area as a useful essential. Izembek Lagoon ...... 363 297 index of importance. Additionally, Therefore, recognizing the limitations many commenters, including the Alaska of our understanding of the listed As noted previously, we will Department of Fish and Game, National population’s use of marine waters in designate as critical habitat only those Audubon Society, and a number of local Alaska, we have designated as critical specific areas that are essential for the governments, suggested that those areas habitat those areas clearly demonstrated conservation of the species. As with the such as Izembek and Nelson lagoons to be of importance to Alaska-breeding North Slope and Y–K Delta, lack of used by large concentrations are clearly Steller’s eiders by the currently information on Steller’s eiders greatly essential for the species’ recovery, available information. To this end, we complicates designation in marine areas whereas there is insufficient designate as critical habitat those areas as well. One eider expert noted that the information to reach conclusions about that meet the following two criteria: (1) uncertainty surrounding Steller’s eider whether areas with small concentrations They are regularly used by a significant are essential. As a result, we established concentration of Steller’s eiders, defined marine ecology and distribution is at ∼ a numerical criterion to be used in as 5,000 birds in most years and least an order of magnitude greater than ≥ that concerning breeding areas. In rating relative importance, such that >10,000 in 1 year; and (2) they are general, the best information on Steller’s areas regularly used by >5,000 Steller’s known to be used by individuals from eider marine ecology comes from areas eiders and occasionally used by >10,000 the listed, Alaska-breeding population. where the species aggregates in large are considered to be essential for the Additionally, because these areas are numbers, such as Izembek and Nelson species’ recovery. Although this used by significant numbers of Steller’s eiders, we believe that special lagoons, and where repeated surveys criterion excludes a number of areas management considerations or have been conducted for many years. used by hundreds or thousands of protection may be needed to conserve There is little or no information from Steller’s eiders, given the relative the essential habitat features other areas within the species’ extensive abundance of the Alaska- and Russia- (constituent elements) found there. As a marine range, where surveys have been breeding populations, it is likely that result of the dense aggregations sporadically or never conducted. the vast majority of Steller’s eiders occurring in these areas, a relatively Furthermore, Alaska-breeding Steller’s throughout their marine range are not small amount of habitat perturbation as eiders, which this critical habitat members of the listed population. might be caused by even a small oil spill designation is intended to protect, are There is also considerable uncertainty could affect a significant number of indistinguishable from the much more- over whether the Alaska-breeding Steller’s eiders and possibly a numerous Russia-breeding Steller’s population uses all portions of the significant proportion of the listed eiders during the non-breeding season. species’ broad range in Alaskan marine population. Therefore, we believe these Therefore, our understanding of waters or concentrates in one or a few areas meet the definition of critical distribution may be incorrect if the portions of that range. Until last year, habitat. The following four areas meet listed Alaska-breeding population tends 2000, the only available information on these criteria: to concentrate in one or more specific the Alaska-breeding population’s portions of the species’ broader marine marine distribution consisted of a few Unit 2: Kuskokwim Shoals range. band recoveries showing that some The Kuskokwim Shoals Unit is a Despite the uncertainty surrounding individuals that nested near Barrow modified subunit of the proposed Steller’s eider marine distribution and molted in Izembek or Nelson lagoons. Kuskokwim Bay Unit (Unit 4). The ecology, there is one striking difference These observations were not surprising proposed unit contained two disjunct between breeding and non-breeding given that surveys show that the vast sections, the north side of Kuskokwim season distribution. During the breeding majority of Steller’s eiders molting in Bay and south side of Kuskokwim Bay. season, Steller’s eiders occur at very low Alaskan waters do so in these lagoons The designated unit differs from the and relatively even densities whereas (Jones 1965, Petersen 1981). Satellite proposed unit in that the south side of there is a tremendous density gradient telemetry provided new information last Kuskokwim Bay portion has been in marine areas during the non-breeding year when three individuals that bred deleted and the boundaries of the north season. Although the species occupies a on the North Slope were tracked during side of Kuskokwim Bay have been huge range during the non-breeding the molt period; two are believed to refined. season, most Steller’s eider concentrate have molted near the Kuskokwim The Kuskokwim Shoals is known to in a few areas, with tens of thousands Shoals and one molted near the Seal be of importance to Steller’s eiders occupying a few square miles in some Islands (Martin 2000b). Although the during molt and for staging during cases. Thus, despite the difficulty in sample size is very small, these spring migration. Use during molt is determining exactly what specific areas observations were somewhat surprising indicated by two surveys in 1996 and are essential for recovery, the gradient in that all three individuals molted in 2000 which found 5,439 and 5,101 in density provides information useful areas thought to support comparatively Steller’s eiders in this area, respectively in evaluating relative importance of small molting populations (limited (although there were differences in various areas. Clearly, those areas where survey data showed that about 5,000 methodologies and flight paths between large concentrations occur are more may molt near the Kuskokwim Shoals the two surveys) (McCaffery 2000). important, and the birds more and 5,000–10,000 may molt at Seal Additionally, satellite telemetry showed vulnerable because small-scale habitat Islands). Thus, these observations that two of three breeding Steller’s impacts could potentially affect a suggest that the listed Alaska-breeding eiders outfitted with transmitters at
VerDate 11
Barrow in 2000 molted in this area, Unit 3: Seal Islands annually, banding data have suggesting that the listed population The Seal Islands Unit is one of several demonstrated that Steller’s eiders may selectively use this area, making its disjunct bays, lagoons, and nearshore molting in Nelson Lagoon include importance disproportionately greater areas included in the proposed North members of the Alaska-breeding than what is indicated by the number of Side of the Alaska Peninsula Unit. The population. Therefore, we determine birds molting there. boundaries of the Seal Islands Unit are that this area is essential for the A series of surveys has shown that left unchanged from those described in conservation of Alaska-breeding Steller’s eiders. large numbers of Steller’s eiders stage the proposed rule. Subsequent to publication of the Steller’s eiders concentrate in the Seal near the Kuskokwim Shoals during proposed rule, we re-evaluated the Islands lagoon in both spring and fall. spring migration, apparently foraging available survey data to determine if Although the area has been along the edge of the extensive shorefast modifying the proposed boundaries was inadequately surveyed for Steller’s ice that lingers into late April in this warranted. We paid particular attention eiders, ‘‘thousands’’ are believed to molt region. The maximum number of to the upper reaches of Herendeen Bay Steller’s eiders detected in this area in this lagoon (Dau 1999a). Emperor and Nelson Lagoon because our initial during aerial surveys conducted during goose surveys, although designed and analysis conducted in preparation of the six years between 1992 and 2000 varied timed to optimally inventory other proposed rule raised questions about the from approximately 5,000 to 42,000 species, have detected an average of use of these areas that we were unable (Larned et al. 1994; Larned 1994, 1997, 5,661 and maximum of 16,200 Steller’s to answer prior to publishing the 1998, 2000). eiders in the lagoon during autumn (late proposal. Additionally, the Aleutians September/early October) and an The boundaries of the Kuskokwim East Borough, in comments submitted average of 1,349 and maximum of Shoals unit have been modified from during the public comment period, 10,444 during spring (late April/early those for the northern portion of the requested that we exclude from May). Additionally, between 2,015 and proposed Kuskokwim Bay Unit to designation waters with 5 mi (8 km) of 7,180 were counted in late April during reflect additional analysis of aerial the community of Nelson Lagoon and Steller’s eider spring migration surveys, survey data, bathymetry information, the fish processing facility at Port further indicating the area’s importance and a comment from the Groundfish Moller to minimize economic impacts to to a large number of Steller’s eiders. Forum, a commercial fishing affected communities. Finally, satellite telemetry data showed association, which suggested that the Data collected during three aerial that one of three Steller’s eiders that proposed unit included waters deeper surveys in 1997–2000 contain GPS bred near Barrow in 2000 and were than those believed to be used by locational data that allow fine- tracked with satellite telemetry molted Steller’s eiders. The Groundfish Forum resolution spatial analysis (previous in the Seal Islands lagoon. Thus, we pointed out that although we identified surveys conducted in this area do not). conclude that the Seal Islands lagoon as suitable habitat waters ≤10 m (30 feet These observations show that Steller’s meets both criteria and should be deep), much of the western edge of the eiders occur in dense clusters considered essential for the proposed unit exceeded this depth. throughout most of Nelson Lagoon, conservation of Steller’s eiders. Unfortunately, bathymetry data from including the area surrounding the this region are scant, making fine-scaled Unit 4: Nelson Lagoon Unit community of Nelson Lagoon. In these analysis of water depth impossible, so three surveys, 46 flocks with a total of The Nelson Lagoon complex, which 5,297 Steller’s eiders were seen within we more closely examined the available includes Nelson Lagoon, Herendeen aerial survey data to evaluate whether 8 km (5 mi) of the community of Nelson Bay, and Port Moller is another subunit Lagoon, and nine flocks with a total of the boundaries should be adjusted to contained within the proposed North more closely fit the area known to be 1,163 Steller’s eiders (including one Side of the Alaska Peninsula Unit. The flock with 500) were observed within used by Steller’s eiders. As a result of boundaries of the unit were modified 1.6 km (1 mile) of the community. These this analysis, we modified the from those proposed to eliminate observations indicate that the waters boundaries, eliminating considerable portions of Herendeen Bay and Port near the community are used by area on the offshore side of the proposed Moller where Steller’s eiders have not significant numbers of Steller’s eiders, unit where no flocks of Steller’s have been detected in significant numbers and we cannot conclude that this area been detected during aerial surveys. during aerial surveys. does not contribute significantly to the None of the southern portion of the Use of the Nelson Lagoon complex by overall importance of the lagoon proposed Kuskokwim Bay Unit is huge numbers of Steller’s eiders is well complex to the species. As a result, we designated as critical habitat. Although documented (Jones 1965, Petersen believe that the waters near the between 4,126 and 6,271 Steller’s eiders 1981). Repeated surveys during molt community of Nelson Lagoon are have been counted there during spring have counted an average of 39,567 essential for the species’ recovery. staging surveys, the birds were widely (n=10 surveys) and a range of 29,690 to Furthermore, as explained in the separated in disjunct bays and shoreline 57,988 (Dau 1999a). Dense aggregations Economic Analysis and Summary of segments, with no individual segment also winter in the Nelson Lagoon Comments and Recommendations being used by >5,000 birds. complex, although ice cover may force sections below, we do not believe that Additionally, the second part of this them elsewhere during variable portions designation of critical habitat will have criterion was not met in that in no years of colder winters. Numbers during significant economic impacts or were >10,000 detected. Finally, the winter averaged 20,487 with a range of constrain community development at second criterion, documented use by the 9,616 to 51,050 (n=17; Dau 1999b). Nelson Lagoon or other communities. listed population, was not met. Large numbers can remain (or possibly Therefore, there is no demonstrated Therefore, we determine that the rebuild) in late spring as well, as basis for excluding these waters from available information does not support 12,000–27,000 have been counted there critical habitat designation as a result of designating this area as essential for the during Steller’s eider spring migration economic impacts. recovery of Alaska-breeding Steller’s surveys. In addition to the very large In contrast, further examination of eiders at this time. numbers using this lagoon complex Steller’s eider survey data shows that
VerDate 11
there are few observations of Steller’s considered essential for the The areas we have designated as eiders in the northeast portion of Port conservation of the Steller’s eider. critical habitat are those areas that the Moller near the fish processing facility. The remaining units that we proposed best available commercial and scientific Because our intent is to designate as as critical habitat, which include information indicates are essential to critical habitat those areas where the Nunivak Island, the Eastern Aleutians, the conservation of Steller’s eiders. species regularly occurs in significant South Side of the Alaska Peninsula, Should additional information on the numbers, we have modified the Kachemak Bay/Ninilchik, and Kodiak value of any area to Steller’s eiders southern boundaries of the critical Archipelago, do not meet the definition become available, we will consider that habitat unit in both Herendeen Bay and of critical habitat based on the criteria information in future decisions to Port Moller to exclude portions of those that we believe best identify the areas designate critical habitat. lagoons where Steller’s eiders are not essential for the conservation of Alaska- regularly seen. Likewise, we have breeding Steller’s eiders. Although in Effects of Critical Habitat Designation modified the boundary of the critical some cases thousands of Steller’s eiders Section 7 Consultation habitat unit to exclude the waters in have been counted in these areas, none Section 7(a) of the Act requires northeast Port Moller where significant of the areas regularly contain >5,000 Federal agencies, including the Service, aggregations have not been documented. individuals. The single exception, Port to ensure that actions they fund, The new boundary runs from the Heiden, is apparently used by authorize, or carry out do not destroy or eastern tip of Wolf Point on Walrus thousands of Steller’s eiders (an average adversely modify critical habitat to the Island to the shoreline 5.5 km (3.4 mi) cannot be calculated with the currently extent that the action appreciably north of Harbor Point (at the tip of available data), but use by individuals diminishes the value of the critical Moller Spit). Thus, the designated from the Alaska-breeding population habitat for the survival and recovery of critical habitat includes the waters has not been documented. Therefore, we the species. Individuals, organizations, adjacent to Moller Spit, where determine that the available information aggregations have regularly been does not demonstrate that any of these states, local governments, and other encountered, but excludes the northeast areas are essential for the recovery of the non-Federal entities are affected by the portion of the lagoon of Port Moller, Alaska-breeding population of the designation of critical habitat only if including the fish processing facility at Steller’s eider. their actions occur on Federal lands, Port Moller (the processing facility is require a Federal permit, license, or Summary of Critical Habitat other authorization, or involve Federal approximately 2 km (1.25 mi) outside Designation the boundary of the critical habitat funding. unit). An appropriately scaled map We have designated critical habitat for Section 7(a) of the Act requires showing the boundaries of designated Steller’s eiders in one terrestrial and Federal agencies to evaluate their critical habitat in this area can be four marine areas: Y–K Delta, actions with respect to any species that acquired by contacting the U.S. Fish and Kuskokwim Shoals, Seal Islands, Nelson is proposed or listed as endangered or Wildlife Service, Anchorage Field Lagoon (including Nelson Lagoon and threatened and with respect to its Office, 605 West 4th Avenue, Room G– portions of Port Moller and Herendeen critical habitat, if any is designated or 61, Anchorage, AK 99501 (telephone Bay), and Izembek Lagoon. We believe proposed. Regulations implementing 907/271–2787 or toll-free 800/272–4174; all of these areas meet the definition of this interagency cooperation provision facsimile 907/271–2786). critical habitat in that they contain of the Act are codified at 50 CFR 402. physical or biological elements essential Section 7(a)(4) requires Federal agencies Unit 5: Izembek Lagoon for the conservation of the species and to confer with us on any action that is As with the previous two units, the may require special management likely to jeopardize the continued Izembek Lagoon Unit is a subunit of the considerations or protection. existence of a proposed species or result proposed North Side of the Alaska Designation of these areas will highlight in destruction or adverse modification Peninsula Unit. The boundaries of the the conservation needs of the species, of proposed critical habitat. Conference Izembek Lagoon Unit are left unchanged and perhaps increase the degree to reports provide conservation from those described in the proposed which Federal agencies fulfill their recommendations to assist the agency in rule. responsibilities under section 7(a)(1) of eliminating conflicts that may be caused Izembek Lagoon is used by dense the Act. by the proposed action. The aggregations of Steller’s eiders during In accordance with the regulations conservation recommendations in a molt, winter, and spring. Tens of implementing the listing provisions of conference report are advisory. After a thousands molt there each year, with 27 the Act (50 CFR 424.12(h)), we have not species is listed or critical habitat is censuses between 1975–1996 averaging proposed any areas outside the designated, section 7(a)(2) requires 23,300 birds (range 6,570–79,970; Dau jurisdiction of the United States (e.g., Federal agencies to ensure that actions 1999a). Tens of thousands also remain within Russian waters). they authorize, fund, or carry out are not through winter in most years, although In addition to the areas that we have likely to jeopardize the continued distribution and numbers are affected by designated as critical habitat, other areas existence of such a species or to destroy ice cover and vary from year to year currently used by Steller’s eiders or adversely modify its critical habitat. (Dau 1999). Numbers may build again include the North Slope and marine If a Federal action may affect a listed during spring, as up to 79,000 have been waters in western, southwestern, and species or its critical habitat, the counted during goose surveys in late southcoastal Alaska. In addition, there responsible Federal agency (action April/early May (Dau 1999b). In may be other areas used by this species agency) must enter into consultation addition to dense aggregations of that are unknown to us. The best with us. Through this consultation we Steller’s eiders regularly occurring at available information did not suggest would ensure that the permitted actions Izembek, band recoveries show that the that there is any currently unoccupied do not destroy or adversely modify birds molting there include members of habitat that is essential to the critical habitat. the Alaska-breeding population. conservation of the species; therefore, When we issue a biological opinion Therefore, we determine that Izembek no unoccupied critical habitat was concluding that a project is likely to Lagoon meets both criteria and is designated. result in the destruction or adverse
VerDate 11
modification of critical habitat, we also survival and recovery of the Steller’s These actions include, but are not provide reasonable and prudent eider is appreciably reduced. We note limited to: alternatives to the project, if any are that such activities may also jeopardize (1) Regulation of activities affecting identifiable. Reasonable and prudent the continued existence of the species. waters of the United States by the Army alternatives are defined at 50 CFR Activities that, when carried out, Corps under section 404 of the Clean 402.02 as alternative actions identified funded, or authorized by a Federal Water Act and/or section 10 of the during consultation that can be agency, may directly or indirectly Rivers and Harbors Act; implemented in a manner consistent adversely affect critical habitat include, (2) Regulation of water flows, with the intended purpose of the action, but are not limited to: damming, diversion, and channelization which are consistent with the scope of (1) Draining, filling, or contaminating by Federal agencies; the Federal agency’s legal authority and wetlands and associated surface waters; (3) Regulation of commercial fisheries jurisdiction, which are economically (2) Filling, dredging, or pipeline by the National Marine Fisheries and technologically feasible, and that construction in marine waters; Service; the Director believes would avoid (3) Commercial fisheries that harvest (4) Law enforcement in United States destruction or adverse modification of or damage the benthic or planktonic Coastal Waters by the U.S. Coast Guard; critical habitat. Reasonable and prudent flora or fauna in marine waters; (5) Road construction and alternatives can vary from slight project (4) Spilling or discharging petroleum maintenance by the Federal Highway modifications to extensive redesign or or other hazardous substances; or Administration; relocation of the project. Costs (5) Discharge of sediment or toxic (6) Regulation of airport improvement associated with implementing a substances into freshwater systems that activities by the Federal Aviation reasonable and prudent alternative are drain into adjacent nearshore marine Administration jurisdiction; (7) Military training and maneuvers similarly variable. waters. on applicable DOD lands; Regulations at 50 CFR 402.16 require To properly portray the effects of Federal agencies to reinitiate (8) Regulation of subsistence harvest critical habitat designation, we must consultation on previously reviewed activities on Federal lands by the U.S. first compare the section 7 requirements actions in instances where critical Fish and Wildlife Service; for actions that may affect critical habitat is subsequently designated and (9) Regulation of mining and oil habitat with the requirements for the Federal agency has retained development activities by the Minerals actions that may affect a listed species. discretionary involvement or control Management Service; Section 7 prohibits actions funded, over the action or such discretionary (10) Regulation of home construction authorized, or carried out by Federal involvement or control is authorized by and alteration by the Federal Housing agencies from jeopardizing the law. Consequently, some Federal Authority; continued existence of a listed species agencies may request reinitiation of (11) Hazard mitigation and post- consultation with us on ongoing actions or destroying or adversely modifying the disaster repairs funded by the Federal for which formal consultation has been listed species’ critical habitat. Actions Emergency Management Agency; completed if those actions may affect likely to ‘‘jeopardize the continued (12) Construction of communication designated critical habitat. existence’’ of a species are those that sites licensed by the Federal Activities on Federal lands that may would appreciably reduce the Communications Commission; affect the Steller’s eider or its critical likelihood of both the survival and (13) Wastewater discharge from habitat will require section 7 recovery of a listed species. Actions communities and oil development consultation. Activities on private or likely to result in the destruction or facilities permitted by the state lands requiring a permit from a adverse modification of critical habitat Environmental Protection Agency; and Federal agency, such as a permit from are those that would appreciably reduce (14) Other activities funded by the U. the U.S. Army Corps of Engineers (Army the value of critical habitat for both the S. Environmental Protection Agency, Corps) under section 404 of the Clean survival and recovery of the listed Department of Energy, or any other Water Act, or some other Federal action, species. Federal agency. including funding (e.g., from the Federal Common to both definitions is an All areas designated as critical habitat Highway Administration, Federal appreciable detrimental effect on both are within the geographical area Aviation Administration, or Federal survival and recovery of a listed species. occupied by the species and contain Emergency Management Agency) will Given the similarity of these definitions, physical and biological features that are also continue to be subject to the section actions likely to result in the destruction likely to be used by Steller’s eiders 7 consultation process. Federal actions or adverse modification of critical during portions of the year. Thus, we not affecting listed species or critical habitat would almost always result in consider all critical habitat to be habitat and actions on non-Federal jeopardy to the species concerned, occupied by the species. Federal lands that are not federally funded or particularly when the area of the agencies already consult with us on permitted do not require section 7 proposed action is occupied by the activities in areas currently occupied by consultation. species concerned. In those cases, the species or if the species may be Section 4(b)(8) of the Act requires us critical habitat provides little additional affected by the action to ensure that to evaluate briefly in any proposed or protection to a species, and the their actions do not jeopardize the final regulation that designates critical ramifications of its designation are few continued existence of the species. habitat those activities involving a or none. However, if occupied habitat Thus, we do not anticipate additional Federal action that may adversely becomes unoccupied in the future, there regulatory protection will result from modify such habitat or that may be is a potential benefit from critical critical habitat designation. affected by such designation. Activities habitat in such areas. We recognize that designation of that may result in the destruction or Federal agencies already consult with critical habitat may not include all of adverse modification of critical habitat us on activities in areas currently the habitat areas that may eventually be include those that alter the primary occupied by the species to ensure that determined to be necessary for the constituent elements to an extent that their actions do not jeopardize the recovery of the species. For these the value of critical habitat for both the continued existence of the species. reasons, all should understand that
VerDate 11
critical habitat designations do not availability on August 24, 2000 (65 FR the local tribal council in Sand Point on signal that habitat outside the 51577). This comment period ran September 19, 2000. A series of public designation is unimportant or may not concurrently with the last 30 days of the informational meetings was held in be required for recovery. Areas outside comment period on the proposed rule, North Slope villages: Nuiqsut on August the critical habitat designation will also closing on September 25, 2000. The 21, 2000; Wainwright on August 23, continue to be subject to conservation resulting comment period lasted from 2000; Point Lay on August 24, 2000; and actions that may be implemented under March 13, 2000, to September 25, 2000 Atqasuk on August 25, 2000. A public section 7(a)(1) and to the regulatory (197 days). hearing, at which public testimony was protections afforded by the section We solicited comments from all recorded, was held at Barrow on August 7(a)(2) jeopardy standard and the interested parties, and we particularly 28, 2000 (65 FR 46684). Notices section 9 take prohibition, as sought comments concerning Steller’s announcing these North Slope meetings determined on the basis of the best eider distribution and range, whether and the public hearing were published available information at the time of the critical habitat should be designated, in advance in the Fairbanks Daily News- action. We specifically anticipate that and activities that might impact Steller’s Miner (July 30, August 2 and 4, 2000), federally funded or assisted projects eiders. Notice of the proposed rule was Anchorage Daily News (July 30, August affecting listed species outside their sent to appropriate State agencies, 1 and 2, 2000), and Arctic Sounder designated critical habitat areas may borough and local governments, Federal (August 3, 10, and 17, 2000). still result in jeopardy findings in some agencies, Alaska Native corporations Additionally, the Service met with eider cases. Similarly, critical habitat and organizations, scientific and experts at the Campbell Creek Science designations made on the basis of the environmental organizations, Center in Anchorage, AK on September best available information at the time of commercial fishing and oil industry 21–22, 2000. After the close of the designation will not control the representatives, and other interested comment period, public interest direction and substance of future parties. In addition, we invited public continued and further informational recovery plans, habitat conservation comment through the publication of meetings (at which public comment was plans, or other species conservation notices in the following newspapers: not sought or accepted) were held with planning efforts if new information Juneau Empire (March 24–27, 2000), the Kodiak/Aleutians Regional Advisory available to these planning efforts calls Fairbanks Daily News-Miner (March 24– Council on September 27, 2000; and the for a different outcome. 26, 2000), Anchorage Daily News Bristol Bay Regional Advisory Council (March 24–26, 2000), Arctic Sounder at Naknek, Alaska on October 13, 2000. Summary of Comments and (March 23, 2000), Bristol Bay Times We also requested six experts on eider Recommendations (March 23, 2000), Dutch Harbor biology to peer review the proposed Our critical habitat proposal was Fisherman (March 23, 2000), and critical habitat designation; two published in the Federal Register on Tundra Drums (March 23, 2000). submitted comments, which have been March 13, 2000 (65 FR 13262). The We also conducted a series of public taken into consideration in developing proposal requested all interested parties meetings to discuss the proposal to this final rule. to submit comments on the specifics of designate critical habitat for Steller’s We received a total of 334 oral and the proposal including information, eiders, and one public hearing at which written comments on the proposed policy, and proposed critical habitat public testimony was accepted (65 FR critical habitat designation. Fifteen boundaries as provided in the proposed 46684). Meetings to discuss critical individuals or parties submitted oral rule. In particular, we sought comments habitat designation were held with testimony at the public hearing at on: (1) the reasons why an area should agency, industry, Native and Barrow; seven of these submitted a or should not be designated as critical environmental organization written record of their comments. We habitat; (2) information on the representatives at our Region 7 Regional also recorded issues raised by abundance and distribution of Steller’s Office, Anchorage, AK, on February 1 participants at public meetings; these eiders and their habitat; (3) what areas and 2, 2000; with the Association of issues were recorded but we did not are essential for the conservation of the Village Council Presidents staff in record the number of individuals raising species and which areas may require Bethel on February 7, 2000; the public the same issue. Comments were special management protection or and local government representatives in received from: representatives of ten consideration; (4) current or planned Barrow on February 16, 2000; Waterfowl Federal agencies and one Federally activities in proposed critical habitat Conservation Committee in Bethel AK elected official, the State of Alaska and and their possible impacts on proposed from February 22–24, 2000; the public three elected state officials or bodies; critical habitat; and (5) any foreseeable in Toksook Bay on February 25, 2000; five Borough governments; 13 local economic or other impacts resulting the public in Chevak on March 1, 2000; governments; 25 Native organizations; from the proposed designation of and at the Alaska Forum on the and 276 individuals, private companies, critical habitat. The comment period Environment in Anchorage on February or non-Native organizations. Forty was initially open from March 13, 2000, 9, 2000. Although these meetings were commenters expressed support for until May 12, 2000. The comment conducted prior to publication of the designating critical habitat; 277 opposed period was extended on April 19, 2000 proposal to designate critical habitat, designation; and 17 provided (65 FR 20938), July 5, 2000 (65 FR the concept of critical habitat, the information but no position on 41404), and August 24, 2000 (65 FR likelihood of proposed critical habitat designation. We reviewed all comments 51577), finally closing on September 25, for Steller’s eiders, and the process for received for substantive issues and new 2000. We extended the comment period designation was discussed to encourage information on Steller’s eiders and on these three occasions to public involvement and comment after critical habitat. accommodate Alaska Natives, who the opening of the comment period. Comments pertaining to the spend considerable time away from After the proposal was published, designation of critical habitat were their homes engaged in subsistence meetings were held with the Nome grouped into 4 general issues with 56 activities. Additionally, we requested Eskimo Community IRA Council in specific comments relating to critical comment on the Economic Analysis Nome on May 5, 2000; the public in habitat designation and the economic after notifying the public of its Sand Point on September 18, 2000; and analysis. The issues, comments, and our
VerDate 11
responses are presented in the following As for whether critical habitat is Our response: We believe that all of summary. needed for survival and recovery, the the studies that we used as a basis for Act obligates us to designate, to the our decisions were scientifically sound Issue 1: Biological Justification and maximum extent prudent, those areas and objective. One of the challenges that Methodology that meet the definition of critical faced us was that the biology, historical Comment 1: Many respondents had habitat. It does not require us to usage patterns, distribution, and comments concerning habitat as a factor determine that the act of designating population trend information is not in the species conservation. These land as critical habitat is a necessary complete for Steller’s eider, thus we included comments that habitat is not step in ensuring the survival or attempted to use the best available limiting the species’ population size; achieving recovery of the species. scientific and commercial information habitat loss is not a threat to the species; Comment 2: Many respondents stated and reasoned professional judgment to loss of breeding habitat did not cause that no new data are available to justify make our critical habitat the species’ decline and is not limiting a reversal of the original determination determinations. As a result of the recovery; and critical habitat is not that designating critical habitat was not extended public comment period and needed for survival and recovery. prudent, or to support designation of extensive number of comments received Our response: The information critical habitat as proposed; the reasons in both written and oral form, we also available when Steller’s eiders were for the species’ decline are unknown. attempted to integrate information listed in 1997 did not show that habitat Our response: As discussed above (see provided by the public into this final loss or degradation was a threat to the ‘‘State of Knowledge of the Steller’s rule. The respondents were not specific species. However, it has not yet been Eider), we have gathered additional in saying which documents or studies proven that habitat deterioration has not information since the listing of this they felt were non-objective or contributed to the decline of the species in 1997. As a result of this new unscientific. All of the studies that we Steller’s eider in Alaska. Recent information, we now have a better idea used in our decision-making process are research has shown that ingestion of of which habitats are essential to part of our administrative record and spent lead shot is affecting adult Steller’s eider conservation. available for public review. survival in another threatened species, Additionally, several of our past Comment 4: A few respondents stated the spectacled eider (Somateria determinations that critical habitat that there were insufficient data to fischeri), on the Y–K Delta. Although it designation would not be prudent have describe primary constituent elements. Our response: We disagree. In has not been demonstrated that this has been overturned by courts in recent accordance with the regulations, contributed to decline of the Steller’s years (e.g., Natural Resources Defense primary constituent elements may Council v. U.S. Department of the eider on the Y–K Delta, there is include, but are not limited to, the Interior, 113 F.3d 1121 (9th Cir. 1997); insufficient information to discount the following: roost sites, nesting grounds, role of this form of habitat degradation Conservation Council for Hawaii v. spawning sites, feeding sites, seasonal in the species’ decline at this time. Babbitt, 2 F. Supp. 2nd 1280 (D. Hawaii wetland or dryland, water quality or Moreover, we do not know to what 1998)). Although this information is not quantity, host species or plant extent other contaminants, predation, biological in nature, we reassessed the pollinator, geologic formation, and increased human disturbance are potential benefits of critical habitat vegetation type, tide, and specific soil degrading the quality of eider habitats. designation in light of these decisions. types (50 CFR 424.12). In addition, the An examination of threats that are We believe that new biological regulations state that we are to make our limiting a species survival and recovery information and recent court rulings determinations based upon the best and to what degree those threats are support our conclusion that the scientific data available (50 CFR limiting, are key components of our designation of critical habitat is 424.12). We believe that we have decision of whether a species warrants prudent. Should credible, new described the primary constituent listing as threatened or endangered. For information suggest that our designation elements of the different habitats used the Steller’s eider, that determination of critical habitat should be modified, by this species using the best scientific was made in 1997 when the species was we will reevaluate our analysis and, if data available. Additional data may listed. After we decide that a species appropriate, propose to modify this have allowed us to describe primary warrants listing, the Act directs us to critical habitat designation. In reaching constituent elements in more detail, but identify and designate critical habitat. our current decision, we have the lack of this additional data does not For those areas within the current range considered the best scientific and preclude us from describing the primary of the species, critical habitat can be any commercial information available to us constituent elements using the area that contains physical or biological at this time, as required by the Act. information that we have. features that are essential to the We agree that the reasons for the Comment 5: Several commenters conservation of the species and that may species’ decline are largely unknown noted that critical habitat designation require special management (see Proposed Designation of Critical could hamper recovery by suggesting consideration or protection. For areas Habitat for the Steller’s Eider; 65 FR that threats to the bird are located in one outside the current range of the species, 13268) However, nothing in the Act or place when they are actually located critical habitat can be any area that is its implementing regulations limit elsewhere. considered essential for the critical habitat designation to species or Our response: As we have previously conservation of the species; we need not situations where the factors causing stated, we recognize that designation of consider whether special management decline are fully understood. This form critical habitat may not include all of consideration or protection is needed. of uncertainty, therefore, does not the habitat areas that may eventually be Our evaluation of the available constitute adequate justification for not determined to be necessary for the information shows that the areas we designating critical habitat. recovery of the species. Therefore, it is have designated are essential to the Comment 3: Several respondents very important to understand that species and may require special stated that we need to base our critical habitat designations do not management consideration or decisions on objective studies based on signal that habitat outside the protection. science. designation is unimportant or may not
VerDate 11
be required for recovery. However, even (Quakenbush et al. 1999). The species development does not adversely affect given that limitation, we do not believe also occurs irregularly or in very low that species. Development may affect that our final critical habitat designation numbers in the marine areas mentioned: species in a number of ways, such as will hamper the recovery of the Steller’s Steller’s eiders are not detected during altering distribution or decreasing eider. most sea duck surveys near the Pribilof productivity or survival rates. At this Comment 6: One respondent stated Islands (A. Sowls, Service, pers. comm. time, the effects of development on that our proposals did not encompass 1999); 0–11 per year have been seen on Steller’s eiders are unknown. enough of the species’ range to ensure the south side of the Kenai Peninsula Comment 10: Four local governments recovery, and that areas proposed may (with none seen in 9 of 12 years); and stated that the ‘‘broad brush’’ proposed actually be population sinks. 0–68 per year have been seen (with designation of critical habitat goes well Our response: The proposed rule none in 10 of 20 years) in Prince beyond the limited criteria set forth for included nearly the entire current range William Sound (Service 1998). identifying critical habitat. For example, of the Steller’s eider (excluding Although we acknowledge that the the Service proposed to define critical migratory corridors). We do not believe species may occur (or may have habitat in marine units as waters up to that areas outside of the proposed historically occurred) in each of these 30 feet in depth with a substrate that borders would have contributed areas, the patterns of low and irregular supports either eel grass beds or markedly to the species’ survival and use are inadequate to conclude that invertebrate fauna to allow feeding by recovery. Our final rule excludes large these areas are essential for the the birds, yet the proposed critical portions of the proposal. However, this conservation of the Alaska-breeding habitat included significant waters that is not meant to imply that habitat population of the Steller’s eider. far exceed that definition. outside the designation is unimportant Comment 8: One respondent stated Our response: The proposed marine or may not be required for recovery. that commercial fishing operations were critical habitat units do contain With the exception of near Barrow, not responsible for the decline in eider considerable marine waters that exceed we have very little information on populations, and therefore critical 30 feet in depth or that provide Steller’s eider productivity with which habitat should not restrict commercial substrate unsuitable to support benthic to evaluate whether areas are population fishing. forage for Steller’s eiders. The scale at sinks (areas where mortality exceeds Our response: We are not aware of which the critical habitat production, but where populations are data indicating that commercial determinations are made limit our maintained through immigration from fisheries are or are not responsible for ability to finely map only those areas other areas). Even at Barrow, where the declines in eider populations. We note that are 30 feet in depth or less. species occurs at a comparatively higher that, with respect to commercial Moreover, information available on density than elsewhere on the North fisheries, possible ways in which eiders water depth is not wholly Slope and a road network and other or their habitat may be affected now or comprehensive in its coverage, and the facilities make them easier to study, the in the future include: (1) large numbers seafloor is not uniform in contour. data are inadequate to evaluate of small fuel and oil spills, including However, within the boundaries of reproductive performance and survival the practice of discharging oily bilge described critical habitat units, only that at this time. Unquestionably, this will water; (2) fundamental changes in the area that contains the primary be one area of interest and research as marine ecosystem brought about by constituent elements (waters ≤ 30 feet in a recovery plan for the species is harvest or overharvest of fish and depth) is critical habitat. Therefore, all developed and implemented. shellfish; (3) vessel strikes in which waters > 30 ft (9m) in depth are not Comment 7: One commenter eiders collide with fishing vessels using critical habitat, even though they may suggested that critical habitat should bright lights during inclement weather; be within the broader boundaries of a include additional areas beyond those (4) the alteration of the benthic critical habitat unit. We note, however, proposed, including the North Slope environment by trawling gear. Again, that because the area designated as east of the Colville River, portions of we do not mean to imply that the critical habitat is greatly reduced from Saint Lawrence Island, Nelson Island, commercial fishing industry is currently that proposed, the vast majority of Nunivak Island, the Alaska Peninsula, affecting the species in these ways. We marine waters of concern to these inland Y–K Delta, St. Michael, and the currently lack the information we need commenters have been deleted from this Seward Peninsula. Marine areas that to determine whether fisheries are final rule. should be designated include waters affecting Steller’s eiders. Further Comment 11: The Kodiak Island near the Pribilof Islands, south side of analysis of potential effects of the Borough commented that the entire the Kenai Peninsula, and Prince fishing industry on Steller’s eiders will coastline of the Kodiak Archipelago was William Sound. be considered in future section 7 included in the proposed critical habitat Our response: Although there are consultations with the National Marine despite considerable variation in habitat records of Steller’s eiders occurring and/ Fisheries Service on fisheries type and quality. or nesting in each of the areas management issues. Our response: The proposed Kodiak/ mentioned in this comment, records are Comment 9: A few respondents note Afognak Island Unit was removed from widely separated spatially and that eiders are tolerant of development, this final rule. It is likely that the habitat temporally. On the North Slope, there implying that designation of critical heterogeneity referred to by the Kodiak are a combined total of three nest habitat in these areas is unnecessary. Island Borough in part explains the lack records from east of the Colville River; Our response: We agree that Steller’s of identified large aggregations of there is one nest record from Saint eiders occur in developed areas. Steller’s eiders near the archipelago. Lawrence Island; one account from 1924 Steller’s eiders regularly nest on the Comment 12: Two respondents (the saying the ‘‘species nests’’ on Nelson outskirts of the village of the Barrow. Aleutians East Borough and City of Island; no nest records from Nunivak Additionally, large numbers occur in or Unalaska) expressed concern that the Island; one from the Alaska Peninsula near marine harbors in southwestern amount of marine waters proposed as (in 1872); none from inland Y–K Delta; Alaska during the non-nesting season. critical habitat is overly broad. To none from St Michael; and one from the However, the presence of a species near designate such a large area must be Seward Peninsula (in 1879) developed areas is not proof that based upon the assumption that the
VerDate 11
Alaska-breeding population occurs eiders have been observed in northeast recovery goals are established. Others separately from the Russia-breeding Port Moller, the boundary has been argued that critical habitat should be population, in one as yet undefined modified and the fish processing facility designated only if called for by a location. To designate the entire range is now approximately 2 km (1.25 mi) recovery plan. of the species in Alaska because the outside the northeastern boundary. Our response: Section 4(a)(3) of the Alaska-breeding population may However, the waters near the Act requires that critical habitat be concentrate in a subset of this range is community of Nelson Lagoon are used designated when species are listed, overly protective. by significant numbers of Steller’s which occurs before, and in fact Our response: The threatened Alaska- eiders, and we conclude that they initiates, recovery plan development. breeding population is thought to occur contribute significantly to the overall While having a recovery plan in place during the non-breeding season in importance of the lagoon complex to the would be extremely helpful in southwestern Alaskan marine waters, as species. As a result, we believe that the identifying areas that are essential for does the unlisted Russia-breeding waters near the community of Nelson the conservation of Steller’s eiders, it is population. Because individuals from Lagoon are essential for the species’ not required under the Act. As recovery the two populations are visually recovery. Furthermore, we do not planning for the Steller’s eider proceeds, indistinguishable, it is largely unknown believe that the designation of critical if new information suggests that whether the less-numerous Alaska- habitat will have significant economic designated critical habitat units be breeding population disperses impacts or constrain community modified or eliminated, we will initiate throughout the range of the more- development at Nelson Lagoon or other appropriate actions. Likewise, if numerous Russia-breeding population communities (see more detailed additional areas are found to be or concentrates in one or more distinct explanation in Summary of Comments essential to the conservation of the areas within this broad region. This and Recommendations, Issue 3: species we will consider designating greatly complicates identifying which Economic Issues, below, and in the them as critical habitat. areas are essential for the conservation Economic Analysis section, below). Comment 16: Many respondents of the listed, Alaska-breeding Therefore, there is no demonstrated stated that they thought critical habitat population. basis for excluding the area within 5 mi would create a need for section 7 The uncertainty over the distribution (or any other distance) of the consultations on projects with a federal of the Alaska-breeding population is the community of Nelson Lagoon. nexus, and that consultation would be primary factor causing us to greatly costly, cause permitting delays, reduce the area designated as critical Issue 2. Policy and Regulations potentially preclude some development, habitat from that proposed. As Comment 14: Three commenters or cause widespread unemployment. explained in the Rationale for the Final (including the House Resource Our response: The designation of Designation section, we restricted our Committee of the Alaska State critical habitat for the Steller’s eider designation to areas where very large Legislature, the Aleutians East Borough, does not impose any additional aggregations of Steller’s eiders regularly and the City of Unalaska) stated that requirements or conditions on property occur. We note that in these areas critical habitat designation is not owners or the public beyond those banding or telemetry data show that the needed for much of the area proposed imposed by the listing of the eider in individuals from the listed population because it is contained within National 1997 as a threatened species. All occur. We believe the criteria we Wildlife Refuges, State Game Refuges, or landowners, public and private, are established for evaluating the State Critical Habitat Areas. responsible for making sure their significance of habitat utilized by the Our response: We appreciate that actions do not result in the species are appropriate and helped to there are many areas in the State of unauthorized taking of a listed species, identify those areas known to be Alaska and across the country that have regardless of whether or not the activity essential to the listed population. been established as Federal or State occurs within designated critical Comment 13: Several local conservation areas and that these areas habitat. Take is defined as ‘‘harass, governments in southwest Alaska asked play a critical role in conserving our harm, pursue, hunt, shoot, wound, that the Service not designate critical Nation’s wildlife legacy. Additionally, capture, collect, or attempt to engage in habitat within 5 miles of established we value the relationship that exists any such conduct.’’ Take is further communities in order to alleviate between the Service and the State of defined by regulation to include economic impacts and to allow Alaska that benefits the rich wildlife ‘‘significant habitat modification or community development to proceed heritage of Alaska. The designation of degradation that actually kills or injures unaffected by critical habitat. critical habitat on Federal or State wildlife,’’ which was upheld by the U.S. Our response: Because many of the conservation units does not suggest that Supreme Court in Sweet Home Chapter areas proposed as critical habitat for these areas and their managing agencies of Communities for a Great Oregon et al. Steller’s eiders have not been designated are not protecting wildlife and their v. Babbitt, 515 U.S. 687 (1995). as such in this final rule, only two habitats. The designation of critical Furthermore, all Federal agencies are communities or developed sites are habitat reinforces that these areas are responsible for ensuring that the actions within or proximal to critical habitat. essential to the conservation of the they fund, permit, or carry out do not The community of Nelson Lagoon and listed species and highlights to the result in jeopardizing the continued a seasonally operated fish processing public the importance of these areas. If existence of a listed species, regardless facility at Port Moller were within the such an area contains habitat known to of critical habitat designation. boundaries of the proposed Nelson be essential to the conservation of the ‘‘Jeopardize the continued existence of’’ Lagoon Critical Habitat Unit. The species and may require special means to engage in an action that boundaries of the Nelson Lagoon management consideration, we will reasonably would be expected, directly Critical Habitat Unit were modified to designate the area as critical habitat. or indirectly, to reduce appreciably the reflect more detailed spatial analysis of Comment 15: A few commenters likelihood of both the survival and Steller’s eider observation data contended that critical habitat should recovery of a listed species in the wild conducted subsequent to publication of not be designated until a recovery plan by reducing the reproduction, numbers, the proposed rule. Because few Steller’s for the species is developed and/or or distribution of that species (50 CFR
VerDate 11
402.02). Because we designated only the listing of the species, with or Comment 19: Several respondents areas within the geographic range without critical habitat. Therefore, we stated that we need to balance occupied by the Steller’s eider, any believe that the existence of critical protection and development. activity that would result in an adverse habitat alone will not preclude Our response: There are provisions for modification of the eider’s critical development. balancing protection and development habitat would virtually always also Finally, we stand by the in sections 6, 7, and 10 of the Act. In jeopardize the continued existence of determination in our economic analysis addition, we balance protection and the species. Federal agencies must that critical habitat will not have a development in the critical habitat consult pursuant to section 7 of the Act notable economic impact. Consequently, designation process by conducting an on all activities that will adversely affect we do not believe that it will create jobs economic analysis. Our analysis the eider taking place both within and or cause jobs to be lost. concluded that the economic effects on outside designated critical habitat. Comment 17: Many respondents development would be minimal or non- The consultation process for Steller’s stated that they thought critical habitat existent. Therefore, we believe that we eiders will be affected by critical habitat afforded no additional benefits beyond have considered both protection and designation only to the extent that those already provided by listing. development in our deliberations. Environmental Impact Statements, Our response: It has long been our Comment 20: Several commenters Environmental Assessments, Biological position that the benefits afforded by expressed concern that designation of Assessments, and other National critical habitat were small relative to the critical habitat will result in restrictions Environmental Policy Act documents benefits provided by listing. As such, on development, subsistence hunting and fishing, commercial fishing, and must consider the effect of the project we chose to focus scarce resources transportation. on critical habitat. However, these towards the listing of additional species. documents already must address the Our response: We are unaware of any Our position should not be information indicating any new State or effects of the project on habitat (in the misinterpreted to mean that we believe absence of critical habitat designation). local laws, restrictions, or procedures critical habitat affords no additional will result from critical habitat Therefore, we anticipate that the benefits. To the contrary, we believe additional workload burden created by designation. Should any State or local critical habitat may enhance regulation be promulgated as a result of critical habitat will amount to changes management on Federal lands, and may in terminology and organization of these this rule, this would be outside our help prevent adverse impacts on private documents. Any marginal increase in authority under the Act. Projects lands resulting from Federal actions. consultation costs will ultimately be funded, authorized, or carried out by The courts have repeatedly asserted that borne by the lead Federal agency in the Federal agencies, and that may affect we have an obligation to designate consultation process or its designated critical habitat, must undergo critical habitat under the Act, and any representative. consultation under section 7 of the Act We disagree with those commenters decision not to do so should be the on the effects of the action on critical who believe that the consultation exception rather than the rule. We habitat. However, as discussed in the workload that is due to critical habitat believe that the designation of critical Critical Habitat section above, we do not is 30 percent, 50 percent, or 90 percent habitat serves to educate and inform expect consultations to result in of the total consultation workload. Since agencies, organizations, and the public restrictions that would not already be our consultation process, regardless of that conservation of species requires required to avoid or minimize take of the designation of critical habitat, would cooperative maintenance of intact, the species, which is required regardless include an evaluation of the proposed functional habitat. of the designation of critical habitat. action in terms of the habitat effects on Comment 18: Many respondents Comment 21: One commenter stated the species, we do not anticipate that pointed out that the Act prohibits that village residents believe that they our portion of the section 7 consultation designating a species’ entire range as will be adversely affected by the process will take any longer to complete critical habitat. designation of critical habitat. due to the presence of critical habitat. Our response: Section 3(5)(C) of the Our response: We understand the Therefore, we do not believe that any Act states that, except in those commenter’s reservations, however, we permitting delays will result from this circumstances determined by the continue to maintain that the designation. Similarly, we do not Secretary, critical habitat shall not designation of critical habitat does not believe that critical habitat designation include the entire geographical area impose any additional requirements or will, by itself, preclude development. which can be occupied by an conditions on the public beyond those The Act authorizes us to require only endangered or threatened species. resulting from the listing of the Steller’s minor changes to projects that are likely Unfortunately, in the case of the eider in 1997 as a threatened species. to adversely affect listed species. Only Steller’s eider, the information on Comment 22: Two respondents stated when a project will jeopardize the historical distribution is so limited that that we should have consulted the continued existence of a listed species, accurately defining the species’ entire recovery team in our decision-making or will destroy or adversely modify range (which would include both areas process. critical habitat can we require more than currently occupied and unoccupied Our response: We did not request the minor changes (called ‘‘reasonable and areas that could be occupied) is Recovery Team to make prudent alternatives’’). We believe that impossible. Thus, we cannot evaluate recommendations or provide formal the threshold for reaching ‘‘adverse what proportion of the species’ entire comments on the critical habitat modification’’ is equal to that of potential range was proposed for proposal. That is not the role of the ‘‘jeopardy.’’ Consequently, we cannot designation as critical habitat. However, Recovery Team provided for in the Act. envision how an action could cause at this time we are designating only a However, we did consider comments adverse modification of occupied eider small proportion of the area originally from individual members of the critical habitat without also jeopardizing proposed as critical habitat. Thus, we recovery team as part of the public the species. As a result, any reasonable believe that we are designating as review and comment process. On and prudent alternatives that we may critical habitat only a very small September 21–22, 2000, in Anchorage, require would have come about due to proportion of the species’ total range. AK, we convened a meeting of experts
VerDate 11
in the field of Steller’s eider biology. We management protections and Act. The Ninth Circuit Court invited all local eider experts and all considerations may be needed, and the determined that NEPA does not apply to members of the Steller’s eider recovery designation of critical habitat is our decision to designate critical habitat team. At this meeting, we sought input appropriate. for an endangered or threatened species from the experts on what habitats they Comment 25: Several commenters under the Act because: (1) Congress believed to be essential to the recovery stated that we did not consult with intended that the critical habitat of the species. A transcript of this Alaska Native communities or local/ procedures of the Act displace the meeting is part of our administrative tribal governments regarding our critical NEPA requirements; (2) NEPA does not record, and it was considered in our habitat proposals. apply to actions that do not change the decision-making process, as were Our response: Due to the short physical environment; and (3) to apply comments received by mail, fax, phone, deadline we were working under, which NEPA to the Act would further the e-mail, and in public meetings and our resulted from a settlement agreement, purposes of neither statute (Douglas public hearing in Barrow, AK. we did not consult with Alaska Native County v. Babbitt, 48 F.3d 1495, (9th Comment 23: One respondent said communities prior to proposing to Cir. 1995)). Alaska is within the that designating such a huge area as designate critical habitat. However, we jurisdiction of the Ninth Circuit Court of critical habitat may trivialize the attempted to notify all potentially Appeals. concept of critical habitat. affected communities, local and regional Comment 27: Several commenters Our response: The Act requires that governments regarding the proposed said that we should explain in detail we designate critical habitat to the designation after it was published in the why the proposed critical habitat is maximum extent prudent. For wide- Federal Register on March 13, 2000 (65 essential to the species’ survival and ranging species, this may result in large FR 13262). As noted earlier, we recovery. Commenters also stated that expanses of land or water falling within published notices in the Federal we should identify more explicitly the critical habitat borders. Register announcing the proposed criteria used to determine what areas are Comment 24: One respondent designation of critical habitat, and the considered essential and what special compares the listing of the short-tailed availability of the draft economic management or protections are needed. albatross with that of the Steller’s eider, analysis. We extended our public Our response: Please see the ‘‘Critical and asked why it is prudent to designate comment period three times at the Habitat’’ section of this Final Rule. As critical habitat for the eider, but not for request of Alaska Natives. We sent described above, we identified the the albatross when the criteria for letters and informational materials habitat features (primary constituent determination are nearly identical. pertaining to the proposal, draft elements) that provide for the Our response: The decline in economic analysis and notices of the physiological, behavioral, and abundance of short-tailed albatrosses comment period extensions to over 300 ecological requirements essential for the was notable in that it was directly individuals, communities, and local and conservation of Steller’s eiders. Within attributable to one cause; direct regional Native governments potentially the occupied range of the Steller’s eider, persecution of the birds by humans such affected by the proposed critical habitat. we identified areas which provide the that the species was driven to the brink We provided a briefing opportunity on primary constituent elements and which of extinction (and in fact, for many the proposal for Alaska Native met the criteria discussed under years, the short-tailed albatross was representatives at the commencement of ‘‘Criteria Used to Identify Critical thought to have been extinct). When the comment period. We contacted Habitat’’ in this rule. Then, based in part commercial harvest of this species specific individuals with traditional on public comments and information discontinued, the species population ecological knowledge of eiders and from eider experts, we selected began to grow at near its maximum solicited their comments. We discussed qualifying portions of these areas we biological potential. There is nothing our critical habitat proposal at 19 believe essential for the conservation of about this species’ habitat that is meetings (13 of which were public the Steller’s eider and that may require preventing it from growing at or near its meetings and 16 of which had Natives special management considerations or biological maximum capacity for in attendance). We held meetings in the protections. growth. The current population is but a Native/rural villages and towns of Comment 28: Some commenters tiny fraction of the number of birds that Chevak, Toksook Bay, Bethel, Barrow, stated that ‘‘adverse modification’’ and the habitat once supported. In short, we Point Lay, Wainwright, Nuiqsut, ‘‘jeopardy’’ are two different standards know what caused this species to Atqasuk, Sand Point, and Nome. At and thus disagreed with our position decline, and it’s decline was completely those meetings that were held during that critical habitat will impose no unrelated to anything in its habitat. We the public comment period, meeting additional regulatory burden. also know that there is no aspect of attendees were given the opportunity to Our response: Section 7 prohibits short-tailed albatross habitat in the U.S. comment on the proposal and we gave actions funded, authorized, or carried that is preventing it from recovering equal weight to oral and written out by Federal agencies from nearly as fast as it is capable of doing comments on the proposal. jeopardizing the continued existence of (65 FR 46643). Such may not be the case Comment 26: Two respondents stated a listed species or destroying or for the Steller’s eider. that we are not in compliance with the adversely modifying the listed species’ We do not know why the Steller’s National Environmental Policy Act and critical habitat. Actions likely to eider has declined, but lacking evidence that an Environmental Impact Statement ‘‘jeopardize the continued existence’’ of of excessive direct take by humans, we should be completed. a species are those that would believe it is possible that changes in the Our response: We have determined appreciably reduce the likelihood of quality of the species’ habitat (marine or that we do not need to prepare either an both the survival and recovery of a terrestrial) may have contributed to or Environmental Impact Statement or listed species. Actions likely to result in caused its decline. Furthermore, certain Environmental Assessment, as defined the destruction or adverse modification aspects of its habitat (e.g., lead shot on under the authority of the National of critical habitat are those that would the breeding grounds or changes in the Environmental Policy Act of 1979 appreciably reduce the value of critical marine environment) may be slowing or (NEPA), in connection with regulations habitat for both the survival and preventing recovery. As such, special adopted pursuant to section 4(a) of the recovery of the listed species. Common
VerDate 11
to both definitions is an appreciable conferred by listing. Federal Courts have critical habitat is designated subsequent detrimental effect on both survival and not agreed with our analysis of the befits to consultation. However, this recovery of a listed species. Given the of critical habitat and during the last reinitiation need be undertaken only if common threshold in these definitions, several years have overwhelmingly the action is ongoing. We are in the actions likely to result in the destruction ruled that the Service must in almost all process of contacting Federal agencies or adverse modification of critical cases designate critical habitat for listed to inform them that they should review habitat would almost always result in species. In light of recent court rulings, their ongoing actions that were jeopardy to the species concerned, we opted to reconsider our earlier previously consulted upon to determine particularly where, as here, only habitat prudency decision, as stipulated in the if reinitiation of consultation is within the geographic range occupied terms of a settlement agreement, rather warranted. by the Steller’s eider is designated as than expend our resources on protracted Comment 33: One commenter asked critical habitat. The designation of litigation. whether critical habitat designation critical habitat for the Steller’s eider We recognized that there may be would shorten the permitting process does not add any new requirements to informational or educational benefits for the oil industry or reduce the the current regulatory process. This associated with critical habitat obligation of the oil industry to seek critical habitat designation adds no designation. Moreover, we have Native concurrence. acquired additional information additional requirements not already in Our response: We believe that place following the species’ listing. concerning the biology and ecology of Comment 29: Some commenters this species that have helped us identify designating critical habitat will neither stated that the proposed critical habitat more specifically the areas that are simplify nor complicate the Federal designation was inconsistent with the essential to its conservation. Recent permitting process for any actions, guidelines set forth in the Act because satellite telemetry data has provided including oil exploration or it encompassed more habitat than is new information on molting areas of development. Because the only necessary for the conservation of the Alaska-breeding Steller’s eiders. While regulatory effect of critical habitat species. there is still much to be learned about designation is through section 7 of the Our response: The critical habitat this species, the information currently Act, which only affects Federal actions areas identified in the proposed rule available to us supports our and permitting, it should not affect constituted our best assessment of the determination that designation of interactions between Alaska Natives and areas needed for the species’ critical habitat is prudent, and that the any industry. conservation using the best available areas we are designating as critical Comment 34: Several commenters scientific and commercial data available habitat are essential to the conservation stated that additional law enforcement to us at the time. During the public of the species and may require special focused on illegal spring subsistence comment period for the proposed rule, management considerations or harvest would be a more effective way we received additional information and protections. of achieving recovery than designation recommendations from eider experts, Comment 31: One commenter stated of critical habitat. individuals with traditional the designation of critical habitat should Our response: We do not know with environmental knowledge of the not occur until discussions had been certainty what caused the decline of species’ habitat needs and patterns of held to ensure that the designation is Steller’s eiders, but the available use, and other individuals and consistent with international evidence suggests that subsistence organizations enabling us to refine our management regimes, such as those harvest of this species is minimal and is assessment of the areas needed to under the auspices of the Migratory Bird not likely the primary cause of the ensure survival and recovery of the Treaty Act and the Arctic Council’s decline. We have worked successfully species. The critical habitat designated working group for the Conservation of with Alaska Natives to minimize spring in this rule reflects our assessment of Arctic Flora and Fauna. harvest of Steller’s eiders, and current the areas needed for the conservation of Our response: We agree that efforts to implement recent amendments Steller’s eiders in accordance with the collaboration and consistency with to the Migratory Bird Treaty Act are parameters set forth in ESA sections international efforts to conserve the expected to enhance these efforts. 3(5)(A) and 4(b)(2) and as described in eider are very important. We have a Comment 35: One commenter the section of this rule titled ‘‘Criteria working relationship with eider experts indicated that preventative measures Used to Identify Critical Habitat.’’ We in Russia, and our research and such as critical habitat designation are will continue to monitor and collect management efforts are complementary cheaper as well as more productive and new information and may revise the to those conducted under other efficient than piecemeal restoration of critical habitat designation in the future conservation programs. We will habitat after environmental damage has if new information supports a change. continue to coordinate with other occurred. Comment 30: Several commenters research and conservation entities. The stated that our previous determination parameters set forth in the Act and the Our response: We agree. Designation that designation of critical habitat was settlement agreement preclude deferral of critical habitat helps focus awareness ‘‘not prudent’’ was the appropriate of designation of critical habitat for this on the habitat needs of listed species. It decision. These commenters criticized species pending discussions of the type also enables us to work with other us for agreeing to re-evaluate critical suggested by the commenter. federal agencies to ensure that activities habitat for the Steller’s eider in response Comment 32: One respondent pointed they fund, permit, or carry out do not to litigation, and stated that additional out that critical habitat designation will adversely modify or destroy habitat that biological information should be result in the need to reinitiate section 7 is essential to the conservation of listed necessary before critical habitat is re- consultation on projects on which species. evaluated. consultation has previously been Issue 3: Economic Issues Our response: At the time the initial completed. ‘‘not prudent’’ determination was made Our response: We agree. Regulations Comment 36: Many commenters for this species, we believed that at 50 CFR 402.16 require Federal disagreed with our assessment that the designation afforded few, if any, agencies to reinitiate consultation on designation of critical habitat for the benefits to the species beyond those previously reviewed actions when Steller’s eider would not lead to any
VerDate 11
new section 7 consultations and our species. Given the similarity of these by an action agency, third party conclusion, as a result, that economic definitions, actions likely to result in applicant, or by our personnel to impacts of the proposed designation the destruction or adverse modification conduct a section 7 consultation. would be minimal. of critical habitat would almost always Comment 38: Some comments stated Our response: Because the Steller’s result in jeopardy when the area of the that the economic analyses failed to eider is a federally protected species proposed action is occupied by Steller’s consider the effect of reinitiating under the Act, Federal agencies are eiders. previously conducted consultations to already required to consult with us on While Federal agencies will be consider an action’s effect on designated any actions they authorize, fund, or required to consider the effect of their critical habitat. carry out that may affect the species. For actions on critical habitat in Our response: Regulations at 50 CFR Federal actions that may adversely determining whether or not to consult 402.16 require Federal agencies to affect Steller’s eiders, Federal agencies with us under section 7 of the Act, the reinitiate consultation on previously need to enter into a formal section 7 designation of critical habitat for reviewed actions in instances where consultation process with us to avoid Steller’s eiders will not affect activities critical habitat is subsequently violating section 9 of the Act, which undertaken within critical habitat designated. Because we have already makes it unlawful for any person to boundaries that do not involve a Federal considered the habitat impacts of the ‘‘take’’ a listed species. The term ‘‘take’’ nexus. While any person, public or action during the consultation process, is defined by the Act (section 3(18)) to private, is required to ensure that their we do not believe that any significant mean ‘‘to harass, harm, pursue, hunt, actions do not result in the taking of a resources would be expended by either shoot, wound, kill, trap, capture, or Federally listed species, only Federal the action agency or by our personnel to collect, or to attempt to engage in any agencies are required to consult with us comply with the reinitiation such conduct.’’ The U.S. Supreme Court about their action’s effect on designated requirement. We anticipate fulfilling the clarified the definition of harm to critical habitat under section 7 of the requirements of 50 CFR 402.16 by include adverse modification of habitat Act. Persons undertaking activities sending a letter to an action agency (Sweet Home Chapter of Communities within critical habitat boundaries that undertaking activities on which we have for a Great Oregon, et al. v. Babbitt, 515 do not have a Federal nexus (i.e., already consulted, and requesting that U.S. 687 (1995). Federal funds or permits) and that do they make a determination as to We are only designating critical not result in either the direct or indirect whether the ongoing action may affect habitat that is occupied by Steller’s taking of a Federally protected species designated critical habitat. Because eiders, is essential to the conservation of are not required to consult with us habitat impacts were already considered the species and may require special concerning the effect their activities as part of the initial consultation, we management considerations or may have on designated critical habitat. believe that most, if not all, non- protection. While this designation will Comment 37: Many commenters jeopardy activities already consulted require Federal agencies to further stated that by designating critical habitat upon will likely not adversely modify or consider whether the actions they for Steller’s eiders, section 7 destroy critical habitat. We are authorize, fund, or carry out within consultation costs would likely increase committed to working with all Federal designated critical habitat boundaries due to the extra resources needed to agencies that may be affected by the may affect habitat, it is unlikely that an determine whether a proposed designation of critical habitat to agency could conclude that an action government action could result in the expedite any consultations that require may affect designated critical habitat destruction or adverse modification of reinitiation. without simultaneously concluding that designated critical habitat. Comment 39: The draft economic the action may also affect the eiders Our response: We disagree that the analysis failed to consider that given the presence of eiders within designation of critical habitat for Nationwide permits will no longer be designated critical habitat. Steller’s eiders would significantly allowed without a section 7 To properly portray the effects of increase the costs associated with consultation. critical habitat designation, we must conducting a section 7 consultation. Our response: The conditions, first compare the section 7 requirements First, as previously described, we have limitations, and restrictions of the Army for actions that may affect critical only proposed to designate occupied Corps Nationwide permit program state habitat with the requirements for habitat as critical habitat and as a result in 33 CFR 330.4 that no activity is actions that may affect a listed species. the designation would not result in an authorized by any nationwide permit if Section 7 prohibits actions funded, increase in section 7 consultations that activity is likely to jeopardize the authorized, or carried out by Federal because any Federal action that may continued existence of a threatened or agencies from jeopardizing the affect a species’ designated critical endangered species as listed or continued existence of a listed species habitat, which would trigger a section 7 proposed for listing under the Act or to or destroying or adversely modifying the consultation, would also affect the listed destroy or adversely modify the critical listed species’ critical habitat. Actions species itself due to its presence in the habitat of such species. Federal agencies likely to ‘‘jeopardize the continued area. For those Federal actions that we are required to follow their own existence’’ of a species are those that find may likely adversely affect a procedures for complying with the Act would appreciably reduce the species or its critical habitat, we already while non-federal permittees are likelihood of both the survival and consider habitat impacts of the required to notify the District Engineer recovery of a listed species. Actions proposed action along with whether or (DE) if any Federally listed (or proposed likely to result in the destruction or not an action is likely to jeopardize a for listing) endangered or threatened adverse modification of critical habitat listed species or constitute ‘‘take’’ species or critical habitat might be are those that would appreciably reduce pursuant to section 9 of the Act during affected or is in the vicinity of the the value of critical habitat for both the the formal section 7 consultation project. In such cases, the prospective survival and recovery of the listed process. As a result, the designation of permittee may not begin work under species. Common to both definitions is critical habitat in the areas already authority of the nationwide wetland an appreciable detrimental effect on occupied by Steller’s eiders will not add permit until notified by the DE that the both survival and recovery of a listed any appreciable time or effort required requirements of the Act have been
VerDate 11
satisfied and that the activity is drilling in this area and their current Comment 43: The analysis ignores the authorized. If the DE determines that the responsibility to consult with us on effect that critical habitat designation activity may affect any Federally listed activities they authorize, fund, or carry may have on commercial fisheries, such species or critical habitat, the DE must out that may affect Steller’s eiders. The as those occurring in the Bering Sea, initiate section 7 consultation in analyses discussed previous along the Alaska Peninsula, and in Cook accordance with the Act. Because we consultations with these Federal Inlet based on judicial rulings on the are only designating occupied habitat as agencies concerning oil and gas fisheries impact on critical habitat for critical habitat for Steller’s eiders, activities and concluded that for section Steller sea lions. prospective permittees already are 7 consultations for which a ‘‘not likely Our response: On July 20, 2000, U.S. required to notify the Army Corps of to adversely affect’’ determination was District Court Judge Thomas S. Zilly their activities within these areas. As a made by the agency, and for which we issued an injunction on all groundfish result, we do not anticipate that critical concurred, we fully expect to concur trawl fishing within federally regulated habitat designation for Steller’s eiders with a corresponding determination that waters of the Bering Sea/Aleutian would result in any additional section 7 such an action is not likely to result in Islands and the Gulf of Alaska within consultations with the Army Corps the destruction or adverse modification Steller sea lion critical habitat. The concerning activities needing a general of critical habitat. Only for those actions judge issued this injunction because he permit to proceed. resulting in jeopardy to Steller’s eiders found that the NMFS failed to issue a Comment 40: Some commenters would we expect to meet the threshold legally adequate biological opinion stated that minor permitting delays, for destruction or adverse modification addressing the combined, overall effects resulting from an increase in section 7 of critical habitat during the section 7 of the North Pacific groundfish trawl consultations, can result in a year-long process. Similarly, we believe that fisheries on Steller sea lions and their delay given the limited operation property value decreases, to the extent critical habitat pursuant to the Act. It is windows due to climate conditions in that they can be attributed to Steller’s important to note that while the judge Alaska. As a result, these commenters eiders and result in actual restrictions in limited fishing within Steller sea lion believed that marginal projects may face land use, would be a result of the listing critical habitat, he issued the injunction funding losses as financing capital is of the species as a federally protected primarily out of concern that NMFS withdrawn due to increased uncertainty species and not because of critical failed to comply with section 7 of the associated with such a project. habitat designation. Consequently, we Act. Consequently, we do not believe Our response: We disagree that there do not believe that critical habitat that critical habitat designation for the will be an increase in section 7 designation, as proposed, would have Steller sea lion played a significant role consultations that will be attributable to an adverse effect on oil and gas industry in the judge’s decision to issue the critical habitat designation. Federal operations on the North Slope nor have injunction but rather was simply used agencies are already required to consult any indirect effects on the regional or by the judge to determine the with us in situations where actions they State economy. boundaries of the injunction. undertake, fund, or permit may In this final rule, however, we have Our analyses did not address the jeopardize the eiders. We do not believe withdrawn the North Slope unit from potential effects of third-party lawsuits that the designation of critical habitat critical habitat designation. As a result, directly due to the limited information will lengthen the section 7 process the concerns expressed in this comment and experience that critical habitat because we already consider habitat are no longer an issue relevant to the designation could have on such a impacts as part of the consultation final designation. lawsuit. However, we recognize that it process. Because we are only Comment 42: One commenter is possible that some third parties may designating critical habitat in areas that believed that the economic analyses elect to sue us over future decisions we are occupied by the eiders, we do not failed to adequately address potential may make about whether an activity believe that there will be an increase in benefits associated with critical habitat adversely modifies critical habitat. As of section 7 consultations due to the designation. yet, we have not faced any such designation. Our response: We believe that the lawsuits and because we are only Comment 41: Several commenters benefits to the species that result from designating occupied eider habitat as stated that the draft economic analyses critical habitat will be non-economic in critical habitat, we find it highly failed to adequately address critical nature. Critical habitat designation for unlikely that we would ever determine habitat effects on the North Slope Steller’s eiders may heighten public and that a Federal action could adversely petroleum economy, including the costs agency awareness of the habitat needs of modify critical habitat without associated with section 7 consultations Steller’s eiders. Other benefits may simultaneously jeopardizing the and project modifications, which may result from Federal agencies becoming continued existence of Steller’s eiders result in project delays and reduced more aware of their obligation to consult due to the similarity between the two development, associated effects on the on their activities as per section 7 of the definitions. regional, State, and national oil prices Act. However, because we are Our economic analyses did address and economies, and land value impacts designating only occupied habitat as the potential for impacts to commercial in areas where production may be critical habitat for Steller’s eiders, we fisheries resulting from proposed curtailed. believe that the economic consequences critical habitat designation. In these Our response: Our draft economic (both positive and negative) associated analyses we described how we have analysis for the proposed critical habitat with the designation are limited. We conducted semi-annual formal rule discussed the potential economic arrive at this conclusion because the consultations with NMFS on the impacts to the oil and gas industry designation of critical habitat is unlikely management of Bering Sea fisheries. To operating on the North Slope. to have any significant effect on both date, we are unaware of any Steller’s Specifically, we discussed the current and planned economic activities eiders having been taken by these responsibilities of the Bureau of Land within the designated areas. For reasons fisheries. As a result, we discontinued Management and the Minerals previously stated, Federal agencies are formal consultations on this fishery and Management Service in managing oil already required to consult with us on began conducting only informal and gas exploration and production activities that may affect Steller’s eiders. consultations. We do not anticipate that
VerDate 11
the designation of critical habitat will will not add any additional protection, regulated community, regardless of the change our approach to consultations. nor impact landowners, beyond that size of the entity. Our economic analysis As a result, we do not expect any associated with the addition of the identified several potential impacts adverse economic impacts to occur in species to the list of Federally protected associated with critical habitat Kuskokwim Bay, Seal Islands, Nelson species. Any resulting real estate market designation, including increased Lagoon, or Izembek Lagoon Steller’s would likely be temporary and have a consultation costs, project modification eider critical habitat areas as a result of relatively insignificant effect as it costs, and potential temporary decreases this final rule. Therefore, we believe the becomes apparent that critical habitat in property values. However, because potential for a third-party lawsuit that for Steller’s eiders does not impose we have only designated property that could affect the commercial fishing additional constraints on landowner is within the geographic range occupied industry as a result of critical habitat activities beyond that currently by Steller’s eiders and because Steller’s designation is minimal. associated with the listing of the eiders are already a Federally protected Comment 44: Several commenters species. species, other Federal agencies are stated that the economic analysis is Comment 45: Some commenters already required to consult with us on flawed because it does not quantify any stated that the analysis does not activities that they authorize, fund, or of the expected impacts that may result consider the cumulative impact of carry out that have the potential to from critical habitat designation. added uncertainty for projects. jeopardize the species. Any associated Our response: The draft economic Our response: While our economic costs related to these section 7 analyses did not identify any potential analyses identified some of the concerns consultations, including project impacts associated with critical habitat stakeholders may have regarding our modifications, will therefore be designation for Steller’s eiders. As a concern over current or anticipated attributable to the listing of the species result, the analysis was unable to activities on eider critical habitat, we do and not to designation of critical habitat quantify any effects. Although the not believe that the designation of due to the similarity in the definition of analyses acknowledged the possibility critical habitat for Steller’s eiders will jeopardy and adverse modification. of impacts associated with project impose any additional restrictions or delays and other activities due to considerations on projects having a Issue 4: Other Relevant Issues section 7 consultations (the Act only Federal nexus. While section 7 Comment 47: Many respondents were requires Federal agencies to consult consultations could lead to project concerned that designating critical with us concerning the effect their delays if they are not properly habitat will invite lawsuits by those actions may have in critical habitat anticipated for by project planners, we aiming to obstruct oil development on areas), we are only designating occupied do not believe that the designation of the North Slope. habitat as critical habitat for Steller’s critical habitat will result in any new or Our response: While we cannot eiders. Because Federal agencies are additional section 7 consultations above predict future litigation, it is not our already required to consult with us and beyond those that would be intent to facilitate litigation through concerning the effect their activities required due to an activity’s potential to critical habitat designation. However, may have on Steller’s eiders in these affect Steller’s eiders. We already we cannot use the threat of litigation as areas, we do not believe that the consider the impact that an action has an excuse for not designating critical designation will result in any additional on the eider’s habitat as part of our habitat. The Act and regulations at 50 impacts. While the Act requires Federal current section 7 process so we do not CFR 424.12 require us to designate agencies to consult with us on activities believe that the section 7 process will critical habitat to the maximum extent that adversely modify critical habitat, take any longer than it currently does prudent, and require that we base we do not believe that within areas once critical habitat is designated. critical habitat determinations on the being designated as critical habitat for Comment 46: Some commenters best scientific and commercial data Steller’s eiders there will be any Federal believed that we failed to adequately available and that we consider those government actions that will adversely address the requirements of the Small physical and biological features that are modify critical habitat without also Business Regulatory Enforcement essential to the conservation of the jeopardizing Steller’s eiders due to their Fairness Act in our draft economic species and that may require special presence in designated critical habitat analysis. management considerations and areas. Our response: The Regulatory protection. We have also recognized that, in some Flexibility Act, as amended by the In this final rule, however, we have instances, the designation of critical Small Business Regulatory Enforcement withdrawn the North Slope unit from habitat could affect the real estate Fairness Act, generally requires an critical habitat designation. As a result, market because participants may agency to prepare a regulatory flexibility the concerns expressed in this comment incorrectly perceive that land within analysis of any rule requiring public are no longer an issue relevant to the critical habitat designation is subject to notice and comment under the final designation. additional constraints. However, we do Administrative Procedure Act or any Comment 48: A few respondents not believe that this effect will result other statute unless the agency certifies asked whether it is possible that there from the designation of critical habitat that the rule will not have a significant will be additional time in which to for Steller’s eiders. We arrived at this economic impact on a substantial submit comments and whether another determination based on the fact that we number of small entities. We are draft will be presented for public believe that critical habitat designation certifying that this rule will not have a comment before the final rule. for Steller’s eiders will not add any significant economic impact on a Our response: Our public comment additional protection, beyond that substantial number of small entities period of 197 days greatly exceeds the associated with the addition of the and, as a result, we do not need to 60-day public comment period required species to the list of federally protected prepare either an initial or final by regulation. We extended the species. Additionally, in regard to regulatory flexibility analysis. comment period on three separate private lands that may be nearby We have based our finding on the fact occasions to accommodate interested designated areas, we believe that critical that this rule will not result in any parties. We believe that we allowed habitat designation for Steller’s eiders significant additional burden to the ample time for comments. Our proposed
VerDate 11
rule, published on March 13, 2000, and and collaborative working relationships and elsewhere, resulting in increased the draft economic analysis represent between the Service and local and disturbance during nesting. the only documents for which public Native governments. Our response: The only regulatory comment will be sought relative to this Our response: We regard working effect of critical habitat designation is rulemaking. However, we welcome at relationships with local and Native through section 7 of the Act, which any time new information on the life governments to be essential for effecting requires Federal agencies to consult history, distribution, and status of the the recovery of Steller’s eiders on the with the Service on actions they permit, Steller’s eider, as well as information on North Slope. We note numerous fund, or conduct that may adversely the quality, quantity, and viability of the cooperative conservation actions that affect listed species or adversely modify habitats it uses. are in progress, including jointly or destroy critical habitat. We believe Comment 49: A few respondents conducted or funded research and that neither the need to consult nor the asked whether critical habitat would be monitoring projects, efforts to eliminate outcome of consultations will be the first step towards making the area a the use of lead shot by waterfowl affected by critical habitat designation refuge. hunters, and public education projects. because we currently consider the Our response: Critical habitat We agree that any action that damages potential habitat impacts of proposed designation is completely unrelated to these cooperative efforts will harm projects during consultation. While the formation of wildlife refuges, and in listed eiders. However, the Act and our listing may stimulate research on eiders no way affects, or is a precursor to, regulations are clear in that critical and recovery, any research on the North establishment of a wildlife refuge. habitat must be designated if doing so Slope or elsewhere in the species’ Critical habitat can be designated on is prudent. It should be noted that in occupied range that might result in existing parks and refuges, state and this final rule, we have withdrawn the ‘‘take’’ would require a section private lands. Such designation carries North Slope unit from critical habitat 10(a)(1)(A) permit from the Service. If with it no implication of future land designation for reasons described in the the authorization of such a permit may ownership change, nor does it allow for Rationale for the Final Designation affect a listed species, an intra-agency public access to private land. section. section 7 consultation on permit Comment 50: One respondent stated Comment 53: One respondent issuance must be initiated. Any such that our proposal resulted from a challenged our metric/English consultation will consider the direct, politically motivated decision. conversions (40 km = 25 mi; 30 feet = 10 indirect, interrelated, and Our response: Our proposal resulted interdependent effects of the action. No from an out-of-court settlement in m) used to describe critical habitat units, contending the imprecision in permits would be issued if significant which we agreed to re-examine our adverse impacts were anticipated. initial decision that designation of this conversion could cause ambiguity critical habitat for this species was not in unit boundaries. Summary of Changes From the prudent. We objectively reexamined the Our response: We have revised these Proposed Rule best scientific and commercial data conversions where appropriate. The Based on a review of public available to us at the time, determined conversion 30ft/10m was changed to 30 comments received on the proposed that designation of critical habitat was ft/9m, while one quarter mile/400 m determination of critical habitat for the prudent, and developed the proposal and 25 miles/40 km were left Steller’s eider, we re-evaluated our upon which this final rule is based. unchanged in order to maintain the proposed designation of critical habitat Comment 51: One respondent stated appropriate number of significant digits. for the species. This resulted in five that designating critical habitat ensures Comment 54: One respondent stated significant changes that are reflected in collaboration between Federal, State, that the risks of not designating or this final determination. These are the and Private agencies and industries, and designating too small an area appear (1) elimination of the proposed North that designation will foster greater than the risks of designating too Slope unit; (2) revision of the proposed comprehensive planning and wise large an area. Kuskokwim Bay unit to include the management. Our response: We believe that any northern portion, now called the Our response: We pursue risks associated with the designation of Kuskokwim Shoals unit, and to exclude comprehensive planning and critical habitat derive from the southern portion; (3) elimination of management opportunities regardless of misperceptions surrounding critical the proposed Nunivak Islands, Eastern the presence of critical habitat. habitat, and the way in which these Aleutians, Alaska Peninsula—south However, we note that the heightened misperceptions may affect working side, Kodiak Archipelago and Kachemak awareness surrounding conservation relationships between parties with Bay/Ninilchik units; (4) elimination of issues and the delineation of critical conflicting interests or goals. most of the proposed North Side of the habitat areas on maps has resulted in Conversely, we do not believe that there Alaska Peninsula unit, and; (5) separate agencies becoming more fully aware of are notable risks to the listed species designation of Seal Islands, Nelson the need to consult with us as per that would result from a failure to Lagoon, and Izembek Lagoon units. A section 7 of the Act. As we discussed for designate critical habitat. detailed discussion of the basis for the Proposed North Slope Unit under Comment 55: One respondent asked changes from the proposed rule can be the Rationale for the Final Designation whether critical habitat remains forever found under Rationale for the Final section, in the unique circumstances or is eliminated once the species is Designation section above. surrounding the Barrow area, we believe delisted. the exclusion of areas from a critical Our response: Critical habitat is Economic Analysis habitat designation can also provide a eliminated when the species is delisted. Section 4(b)(2) of the Act requires us conservation benefit to the species. Comment 56: Two oil companies to designate critical habitat on the basis Comment 52: One respondent stated commented that the original listing of of the best scientific and commercial that designating as critical habitat the eiders and subsequent critical habitat data available and to consider the large area proposed on the Arctic designation may have indirect negative economic and other relevant impacts of Coastal Plain would harm listed eiders effects on eiders by stimulating more designating a particular area as critical by irreparably damaging cooperative intrusive research on the North Slope habitat. We may exclude areas from
VerDate 11
critical habitat upon a determination habitat. Thus, no regulatory burden or experience with the species and its that the benefits of such exclusions associated significant additional costs needs, we conclude that any Federal outweigh the benefits of specifying such would accrue because of critical habitat action or authorized action that could areas as critical habitat. We cannot above and beyond that resulting from potentially cause adverse modification exclude such areas from critical habitat listing. Our economic analysis does of designated critical habitat would when such exclusion will result in the recognize that there may be costs from currently be considered as ‘‘jeopardy’’ extinction of the species. delays associated with reinitiating under the Act. Accordingly, the Economic effects caused by listing the completed consultations after the designation of areas within the Alaska-breeding population of the critical habitat designation is made geographic range occupied by the Steller’s eider as a threatened species final. Steller’s eider does not have any and by other statutes are the baseline A copy of the final economic analysis incremental impacts on what actions against which the effects of critical may be obtained by contacting the may or may not be conducted by habitat designation are evaluated. The Northern Alaska Ecological Services Federal agencies or non-Federal persons economic analysis must then examine office (see ADDRESSES section). that receive Federal authorization or the incremental economic and Required Determinations funding. Non-Federal persons that do conservation effects and benefits of the not have a Federal ‘‘sponsorship’’ of critical habitat designation. Economic Regulatory Planning and Review their actions are not restricted by the effects are measured as changes in This document has been reviewed by designation of critical habitat although national income, regional jobs, and the Office of Management and Budget they continue to be bound by the household income. An analysis of the (OMB), in accordance with Executive provisions of the Act concerning ‘‘take’’ economic effects of Steller’s eider Order 12866. OMB makes the final of the species. critical habitat designation was determination under Executive Order (b) This rule will not create prepared (Industrial Economics, 12866. inconsistencies with other agencies’ Incorporated, 2000) and made available (a) This rule will not have an annual actions. As discussed above, Federal for public review August 24, 2000 (65 economic effect of $100 million or agencies have been required to ensure FR 51577). The final analysis, which adversely affect an economic sector, that their actions do not jeopardize the reviewed and incorporated public productivity, jobs, the environment, or continued existence of the Steller’s comments, concluded that no other units of government. A cost- eider since the listing in 1997. The significant economic impacts are benefit and economic analysis is not prohibition against adverse modification expected from critical habitat required. The Steller’s eider was listed of critical habitat is not expected to designation above and beyond that as a threatened species in 1997. Since impose any restrictions in addition to already imposed by listing the Steller’s then, we have conducted 5 formal those that currently exist because all eider The most likely economic effects section 7 consultations with other designated critical habitat is within the of critical habitat designation are on Federal agencies to ensure that their geographic range occupied by the activities funded, authorized, or carried actions would not jeopardize the Steller’s eider. Because of the potential out by a Federal agency. The analysis continued existence of the species. We for impacts on other Federal agency examined the effects of the proposed have also issued 5 section 10(a)(1)(A) activities, we will continue to review designation on: (1) Re-initiation of incidental take permits for research this action for any inconsistencies with section 7 consultations, (2) length of activities that might affect Steller’s other Federal agency actions. time in which section 7 consultations eiders. We have issued no section (c) This rule will not materially affect are completed, and (3) new 10(a)(1)(B) incidental take permits for entitlements, grants, user fees, loan consultations resulting from the this species or within the range of this programs, or the rights and obligations determination. Because areas proposed species. of their recipients. Federal agencies are for critical habitat are within the The areas designated as critical currently required to ensure that their geographic range occupied by the habitat are currently within the activities do not jeopardize the Steller’s eider, activities that may affect geographic range occupied by the continued existence of the species, and critical habitat may also affect the Steller’s eider. Under the Act, critical as discussed above we do not anticipate species, and would thus be subject to habitat may not be adversely modified that the adverse modification consultation whether or not critical by a Federal agency action; it does not prohibition (resulting from critical habitat is designated. We believe that impose any restrictions on non-Federal habitat designation) will have any any project that would adversely modify persons unless they are conducting significant incremental effects. or destroy critical habitat would also activities funded or otherwise (d) This rule will not raise novel legal jeopardize the continued existence of sponsored or permitted by a Federal or policy issues. This final the species, and that reasonable and agency (see Table 2 below). Section 7 determination follows the requirements prudent alternatives to avoid requires Federal agencies to ensure that for determining critical habitat jeopardizing the species would also they do not jeopardize the continued contained in the Endangered Species avoid adverse modification of critical existence of the species. Based upon our Act.
VerDate 11
TABLE 2.—ACTIVITIES POTENTIALLY AFFECTED BY STELLER’S EIDER LISTING AND CRITICAL HABITAT DESIGNATION
Additional activities Activities involving a Federal action potentially affected involving a Federal Categories of activities 1 action potentially by species listing only affected by critical habitat designation 2
Federal Activities Potentially Affected 3 Activities that the Federal Government carries out such as scientific re- None. search, land surveys, law enforcement, oil spill response, resource man- agement, regulation of commerce, and construction/expansion of physical facilities. Private Activities Potentially Affected 4 .. Activities that also require a Federal action (permit, authorization, or funding) None. such as scientific research, commercial fishing, sport and subsistence hunting, shipping and transport of fuel oil and, and village maintenance, construction and expansion. 1 This column represents impacts of the final rule listing the Steller’s eider (June 11, 1997; 62 FR 31748) under the Endangered Species Act. 2 This column represents the impacts of the critical habitat designation above and beyond those impacts resulting from listing the species. 3 Activities initiated by a Federal agency. 4 Activities initiated by a private entity that may need Federal authorization or funding.
Regulatory Flexibility Act (5 U.S.C. 601 (10) Regulation of home construction competition, employment, investment, et seq.) and alteration by the Federal Housing productivity, innovation, or the ability Authority; of U.S.-based enterprises to compete In the economic analysis, we (11) Hazard mitigation and post- with foreign-based enterprises. Refer to determined that designation of critical disaster repairs funded by the Federal the final economic analysis for a habitat will not have a significant effect Emergency Management Agency; discussion of the effects of this on a substantial number of small (12) Construction of communication determination. entities. As discussed under Regulatory sites licensed by the Federal Planning and Review above and in this Communications Commission; Unfunded Mandates Reform Act (2 final determination, this designation of (13) Wastewater discharge from U.S.C. 1501 et seq.) critical habitat for the Steller’s eider is communities and oil development In accordance with the Unfunded not expected to result in any restrictions facilities permitted by the Mandates Reform Act (2 U.S.C. 1501 et in addition to those currently in Environmental Protection Agency; and seq.): existence. As indicated on Table 1 (see (14) Other activities funded by the (a) This rule will not ‘‘significantly or Critical Habitat Designation section) we U.S. Environmental Protection Agency, uniquely’’ affect small governments. A have designated property owned by Department of Energy, or any other Small Government Agency Plan is not Federal, State and local governments, Federal agency. required. Small governments will only and private property. Many of these activities sponsored by be affected to the extent that any Federal Within these areas, the types of Federal agencies within critical habitat funds, permits or other authorized Federal actions or authorized activities areas are carried out by small entities (as activities must ensure that their actions that we have identified as potential defined by the Regulatory Flexibility will not adversely affect the critical concerns are: Act) through contract, grant, permit, or habitat. However, as discussed in (1) Regulation of activities affecting other Federal authorization. As section 1, these actions are currently waters of the United States by the Army discussed in section 1 above, these subject to equivalent restrictions Corps under section 404 of the Clean actions are currently required to comply through the listing protections of the Water Act; with the listing protections of the Act, species, and no further restrictions are (2) Regulation of water flows, and the designation of critical habitat is anticipated. damming, diversion, and channelization not anticipated to have any additional (b) This rule will not produce a by Federal agencies; effects on these activities. Federal mandate of $100 million or (3) Regulation of commercial fisheries For actions on non-Federal property greater in any year, that is, it is not a by the National Marine Fisheries that do not have a Federal connection ‘‘significant regulatory action’’ under Service; (such as funding or authorization), the the Unfunded Mandates Reform Act. (4) Law enforcement in United States current restrictions concerning take of The designation of critical habitat Coastal Waters by the U.S. Coast Guard; the species remain in effect, and this imposes no obligations on State or local final determination will have no (5) Road construction and governments. additional restrictions. maintenance by the Federal Highway Takings Administration; Small Business Regulatory Enforcement This critical habitat designation is Fairness Act (5 U.S.C. 804(2)) (6) Regulation of airport improvement restricted to Federal and State marine activities by the Federal Aviation In the economic analysis, we waters and no private lands are Administration jurisdiction; determined whether designation of included. Therefore, this rule does not (7) Military training and maneuvers critical habitat would cause (a) any have significant takings implications on applicable DOD lands; effect on the economy of $100 million and a takings implication assessment is (8) Regulation of subsistence harvest or more, (b) any increases in costs or not required. activities on Federal lands by the U.S. prices for consumers, individual Fish and Wildlife Service; industries, Federal, State, or local Federalism (9) Regulation of mining and oil government agencies, or geographic In accordance with Executive Order development activities by the Minerals regions in the economic analysis, or (c) 13132, the rule does not have significant Management Service; any significant adverse effects on Federalism effects. A Federalism
VerDate 11
assessment is not required. The Paperwork Reduction Act of 1995 (44 populations. Therefore, critical habitat designation of critical habitat within the U.S.C. 3501 et seq.) for the Steller’s eider has not been geographic range occupied by the This rule does not contain any designated on Tribal lands. Steller’s eider imposes no additional information collection requirements for References Cited restrictions to those currently in place, which OMB approval under the and therefore has little incremental Paperwork Reduction Act is required. A complete list of all references cited impact on State and local governments in this proposed rule is available upon National Environmental Policy Act and their activities. The designation request from the Northern Alaska may have some benefit to these We have determined that an Ecological Services Office (see ADDRESSES section) or from the U.S. governments in that the areas essential Environmental Assessment and/or an Fish and Wildlife Service, Alaska to the conservation of the species are Environmental Impact Statement as Region webpage at: http:// more clearly defined, and the primary defined by the National Environmental www.r7.fws.gov/es/te.html constituent elements of the habitat Policy Act of 1969 need not be prepared in connection with regulations adopted necessary to the survival of the species List of Subjects in 50 CFR Part 17 pursuant to section 4(a) of the are specifically identified. While this Endangered Species Act, as amended. A Endangered and threatened species, definition and identification does not notice outlining our reason for this Exports, Imports, Reporting and alter where and what federally determination was published in the recordkeeping requirements, sponsored activities may occur, it may Federal Register on October 25, 1983 Transportation. assist these local governments in long (48 FR 49244). This final determination Regulation Promulgation range planning (rather than waiting for does not constitute a major Federal case by case section 7 consultations to action significantly affecting the quality Accordingly, we amend part 17, occur). of the human environment. subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth Civil Justice Reform Government-to-Government below: Relationship With Tribes In accordance with Executive Order PART 17—[AMENDED] 12988, the Office of the Solicitor has In accordance with the President’s memorandum of April 29, 1994, determined that the rule does not ‘‘Government-to-Government Relations 1. The authority citation for part 17 unduly burden the judicial system and with Native American Tribal continues to read as follows: meets the requirements of sections 3(a) Governments’’ (59 FR 22951) and 512 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. and 3(b)(2) of the Order. We designate DM 2, we readily acknowledge our 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– critical habitat in accordance with the responsibility to communicate 625, 100 Stat. 3500; unless otherwise noted. provisions of the Endangered Species meaningfully with recognized Federal Act. The determination uses standard 2. In § 17.11(h) revise the entry for Tribes on a government-to-government Steller’s eider under ‘‘BIRDS’’ to read as property descriptions and identifies the basis. We have determined that there are follows: primary constituent elements within the no Tribal lands essential for the designated areas to assist the public in conservation of the Steller’s eider § 17.11 Endangered and threatened understanding the habitat needs of the because they do not support core wildlife. Steller’s eider. Steller’s eider populations, nor do they * * * * * provide essential linkages between core (h) * * *
Species Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules
******* BIRDS ******* Eider, Steller’s ...... Polysticta stelleri ...... USA (AK); Russia ..... U.S.A. (AK breeding T 616 17.95(b) NA population only). *******
3. Amend § 17.95 (b) by adding Islands (Unit 3), Nelson Lagoon (Unit 4), marine waters up to 9 m (30 feet) deep critical habitat for the Steller’s eider and Izembek Lagoon (Unit 5) on the and the underlying substrate, the (Polysticta stelleri) in the same maps below. The maps are for reference associated invertebrate fauna in the alphabetical order as this species occurs only; the areas in critical habitat are water column, the underlying marine in 17.11 (h) to read as follows: legally described below. benthic community, and where present, eelgrass beds and associated flora and § 17.95 Critical habitat—fish and wildlife. 2. Within these areas, the primary fauna. Critical habitat does not include * * * * * constituent elements are those habitat components that are essential for the those areas within the boundary of any (b) Birds. primary biological needs of feeding, unit that do not fit the description of * * * * * roosting, molting, and wintering. The primary constituent elements for that unit. Steller’s Eider (Polysticta stelleri) primary constituent elements for Unit 1 include the vegetated intertidal zone 3. Critical habitat does not include 1. Critical habitat units are depicted and all open water inclusions within existing human structures, such as for the Yukon—Kuskokwim Delta (Unit this zone. The primary constituent buildings, roads, pipelines, utility 1), Kuskokwim Shoals (Unit 2), Seal elements for Units 2, 3, 4, and 5 are corridors, airports, other paved areas,
VerDate 11
docks, wharves, buoys, or other 4. In the following maps and legal developed areas. descriptions, all geographic coordinates are in North American Datum 1927. BILLING CODE 4310–55–P
VerDate 11
Unit 1. Yukon—Kuskokwim Delta 23–26, 36; T14N, R89W, Sections 1–36; 36; T11N, R87W, Sections 1–36; T11N, Seward Meridian: T19N, R91W, T14N, R90W, Sections 1–36; T14N, R88W, Sections 1–36, T11N, R89W, Sections 24, 25, 26, 33, 34, 35, 36; T19N, R91W, Sections 1–29, 32–36; T14N, Sections 1–6, 9–12, 25–36; T11N, R91W, R90W, Sections 13, 14, 17, 18, 19–36; R92W, Sections 1–18, 24; T14N, R93W, Sections 1–6; T10N, R88W, Sections 1– T18N, R90W, Sections 1–24, 26–33; Sections 1, 12; T13N, R87W, Sections 1– 26, 29–33, 35, 36; T10N, R89W, Sections T18N, R91W, Sections 1–5, 7–28, 33–36; 36; T13N, R88W, Sections 1–36; T13N, 1–35; T10N, R90W, Sections 1, 2, 11–14, T18N, R92W, Sections 10–30; T18N, R89W, Sections 1–36; T13N, R90W, 24, 25; T9N, R87W, Sections 1–35; T9N, R93W, Sections 21–27; T16N, R91W, Sections 1–36; T13N, R91W, Sections 1– R88W, Sections 1, 4–10, 13–36; T9N, Sections 1–36; T16N, R92W, Sections 1– 5, 8–17, 20–29, 32–36; T12N, R87W, R89W, Sections 13, 14, 23–26, 35, 36; 4, 10–15, 21–36; T16N, R93W, Section Sections 1–36; T12N, R88W, Sections 1– T8N, R89W, Sections 1–5, 7–24, 26–34; 36; T15N, R89W, Sections 1–36; T15N, 29, 31–36; T12N, R89W, Sections 1–35; T8N, R90W, Sections 1–2, 11, 13, 14, R90W, Sections 1–36; T15N, R91W, T12N, R90W, Sections 1–4, 9–14, 23–25; 23–26, 36. Sections 1–36; T15N, R92W, Sections 1– T12N, R91W, Sections 1–36; T12N, 36; T15N, R93W, Sections 1,2, 11–14, R92W, Sections 1–4, 9–16, 21–28, 34– BILLING CODE 4310–55–P
VerDate 11
BILLING CODE 4310–55–C Conservation Act (Public Law 96–487) kilometers (35 miles), to a point in the Unit 2. Kuskokwim Shoals Unit on December 2, 1980, approximately waters of Kuskokwim Bay, Bering Sea, 149 kilometers (93 miles), to a point on ° ′ ° Beginning at a point of land on the at latitude 59 30 North, longitude 164 the line of mean high tide at longitude ′ line of mean high tide of Etolin Strait of 00 West; 163° 00′ West, approximately 8 the Bering Sea at latitude 60° 15″ North, Thence northwesterly, approximately kilometers (5 miles) east of the approximately 2.5 kilometers (1.6 miles) 86 kilometers (54 miles), to a point in Kwigillingok River mouth; south of the mouth of the Kolavinarak the waters of Etolin Strait, Bering Sea, River, and the true point of beginning of Thence south along the line of ° ′ ° ° ′ at latitude 60 05 North, longitude 165 the lands to be described. longitude 163 00 West, approximately 00′ West; Thence southeasterly and easterly 43 km (27 miles), to the point in the Thence northeasterly, approximately with the line of mean high tide of the waters of Kuskokwim Bay, Bering Sea, Bering Sea, common with the boundary at latitude 59° 30′ North, longitude 163° 27 kilometers (17 miles), to the line of 00′ West; mean high tide of Etolin Strait at of the Yukon Delta and Alaska Maritime ° National Wildlife Refuges as established Thence west along the line of latitude latitude 60 15’’ North, and the true by the Alaska National Interest Lands 59° 30′ North, approximately 56 point of beginning.
VerDate 11
BILLING CODE 4310–55–C closing the mouth of the Ilnik River, meters (1⁄4 mile) perpendicular to the Unit 3. Seal Islands Unit approximately 52 kilometers (32 miles); line of mean high tide; Thence in a northeasterly direction, Beginning at a point of land on the Thence northwest with the line of parallel to the coastline of Bristol Bay Alaska Peninsula on the line of mean mean high tide of Bristol Bay, common and the ocean side of the Seal islands, high tide of Bristol Bay of the Bering Sea with said refuge boundary closing the entrances to Seal Island at longitude 159°12′ West, and the True approximately 14 kilometers (9 miles) to Point of Beginning of the lands to be a point at the entrance to Seal Island lagoon, for approximately 30 kilometers lagoon at approximate longitude 159°23′ (19 miles) to a point in Bristol Bay at described. ° ′ Thence southwesterly, northeasterly, West; longitude 159 12 West, and at a 1 and southwesterly, with the line of Thence southwest, with the line of distance of 400 meters ( ⁄4 mile) mean high tide of Bristol Bay, common mean high tide of Bristol Bay, common perpendicular to the line of mean high with the boundary of the Alaska with said refuge boundary, tide; Maritime National Wildlife Refuge as approximately 16 kilometers (10 miles) Thence south with the line of ° ′ established by the Alaska National to a point at longitude 159°36′ West: longitude 159 12 West, to the line of Interest Lands Conservation Act (Public Thence north with the line of mean high tide of Bristol Bay, and the Law 96–487) on December 2, 1980, to longitude 159°36′ West to a point in the True Point of Beginning. encompass the Seal Islands lagoon and waters of Bristol Bay at a distance of 400 BILLING CODE 4310–55–P
VerDate 11
BILLING CODE 4310–55–C miles) to a point at the mean high tide common with said refuge boundary, Unit 4. Nelson Lagoon Unit line on the south shore of Port Moller; approximately 20 kilometers (12 miles) Thence westerly and southerly with to a point at longitude 161°24′ West; Beginning at a point of land on the the line of mean high tide of Port Moller Thence north along the line of Alaska Peninsula on the line of mean and Herendeen Bay common with said longitude 161°24′ West to a point in the high tide of Bristol Bay of the Bering refuge boundary approximately 24 waters of Bristol Bay at a distance of 400 Sea, approximately 5.5 kilometers ( 3.4 kilometers (15 miles) to a point at meters (1⁄4 mile) perpendicular to the miles) north of Harbor Point, on Moller ° ′ latitude 55 51 North; line of mean high tide; Spit, at longitude 160°32′ West, and the Thence west with the line of latitude Thence in a northeasterly direction, True Point of Beginning of the lands to 55°51′ North, crossing Herendeen Bay be described. parallel to the coastline of Bristol Bay approximately 11.7 kilometers (7.3 and the ocean side of the Kudobin Thence southwesterly and miles) to a point at the mean high tide northeasterly, with the line of mean Islands, approximately 40 kilometers line on the west shore of Herendeen (25 miles) to a point at longitude160°48′ high tide of Bristol Bay, common with Bay; West, at a distance of 400 meters (1⁄4 the boundary of the Alaska Maritime Thence northerly, westerly, and mile) offshore Wolf Point on Walrus National Wildlife Refuge as established northeasterly with the line of mean high island; by the Alaska National Interest Lands tide of Herendeen Bay and Nelson Conservation Act (Public Law 96–487) Lagoon, common with said refuge Thence southeast, approximately 18 on December 2, 1980, approximately 10 boundary; approximately 94 kilometers kilometers (11.1 miles), closing the kilometers (6.2 miles) to a point at (58 miles) to Lagoon Point, within entrance to the Hague Channel to a longitude160°32′ West; point at the mean high tide line of Port Section 22 of Township 48 South, Range ° ′ Thence south with the line of 76 West; Moller at 160 32 West, the True Point longitude 160°32′ West, crossing Port Thence southwesterly with the line of of Beginning. Moller, approximately 9 kilometers (5.6 mean high tide of the Bering Sea, BILLING CODE 4310–55–P
VerDate 11
BILLING CODE 4310–55–C the Izembek National Wildlife Refuge, Islands, closing the entrances to Unit 5. Izembek Lagoon Unit northeasterly, southwesterly, and Izembek Lagoon, for approximately 64 northeasterly to encompass Moffett and Beginning at a point of land on the kilometers (40 miles) to a point in the Izembek Lagoons, Applegate Cove, and Alaska Peninsula on the line of mean waters of Bristol Bay at longitude Norma Bay, approximately 55 miles to ° ′ high tide of Bristol Bay of the Bering Sea 162 30 W, and at a distance of 400 Cape Glazenap, at approximately 55°15′ 1 at longitude 162°30′ W and the True meters ( ⁄4 mile) perpendicular to the N, 163°00′ W; Point of Beginning of the lands to be line of mean high tide; Thence southwest with the line of described. Thence south along the line of mean high tide of Bristol Bay, common Thence southwesterly, with the line longitude 162°30′ W, to the line of mean to the Alaska Maritime refuge boundary, of mean high tide of Bristol Bay, high tide and the True Point of common with the boundary of the approximately 177 kilometers (110 ° ′ Beginning. Alaska Maritime National Wildlife miles) to a point at longitude 163 15 W; Refuge as established by the Alaska Thence north along the line of * * * * * National Interest Lands Conservation longitude 163°15′ W to a point in the Dated: January 10, 2001. Act (Public Law 96–487) on December waters of Bristol Bay at a distance of 400 Stephen C. Saunders, meters (1⁄4 mile) perpendicular to the 2, 1980, approximately 9 kilometers (5.6 Acting Assistant Secretary for Fish and line of mean high tide; miles) to Moffet Point located at Wildlife and Parks. ° ′ ° ′ Thence in a northeasterly direction, approximately 55 27 N, 162 37 W; [FR Doc. 01–1334 Filed 2–1–01; 8:45 am] Thence continuing with the line of parallel to the coastline of Bristol Bay mean high tide, inside the boundary of and the ocean side of the Kudiakof BILLING CODE 4310–55–P
VerDate 11