Vol. 80 Friday, No. 34 February 20, 2015

Part II

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Part 226 Endangered and Threatened Species; Critical Habitat for Endangered North Atlantic Right Whale; Proposed Rule

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DEPARTMENT OF COMMERCE Regional Office, 55 Great Republic This critical habitat was revised in 2006 Drive, Gloucester, MA 01930. to include two foraging areas in the National Oceanic and Atmospheric Instructions: You must submit North Pacific Ocean—one in the Bering Administration comments by one of the above methods Sea and one in the Gulf of Alaska (71 to ensure that we receive, document, FR 38277; July 6, 2006). 50 CFR Part 226 and consider them. Comments sent by In 2006, we published a comprehensive right whale status [Docket No. 100217099–4774–02] any other method, to any other address or individual, or received after the end review, which concluded that recent RIN 0648–AY54 of the comment period, may not be genetic data provided unequivocal considered. All comments received are support to distinguish three right whale Endangered and Threatened Species; a part of the public record and will lineages as separate phylogenetic Critical Habitat for Endangered North generally be posted to http:// species (Rosenbaum et al. 2000): (1) The Atlantic Right Whale www.regulations.gov without change. North Atlantic right whale (Eubalaena AGENCY: National Marine Fisheries All Personal Identifying Information (for glacialis) ranging in the North Atlantic Service (NMFS), National Oceanic and example, name, address, etc.) Ocean; (2) The North Pacific right whale Atmospheric Administration (NOAA), voluntarily submitted by the commenter (Eubalaena japonica), ranging in the Commerce. may be publicly accessible. Do not North Pacific Ocean; and (3) The southern right whale (Eubalaena ACTION: Proposed rule; request for submit Confidential Business australis), historically ranging comments. Information or otherwise sensitive or protected information. throughout the southern hemisphere’s SUMMARY: We, the NMFS, propose to NMFS will accept anonymous oceans. Based on these findings, we replace the critical habitat for right comments (enter ‘‘N/A’’ in the required published proposed and final whales in the North Atlantic with two fields if you wish to remain determinations listing right whales in new areas. The areas under anonymous). the North Atlantic, North Pacific, and southern hemisphere as separate consideration as critical habitat contain FOR FURTHER INFORMATION CONTACT: 2 endangered species under the ESA (71 approximately 29,945 nm of marine Mark Minton, NMFS, Greater Atlantic habitat in the Gulf of Maine and Georges FR 77704, December 27, 2006; 73 FR Regional Fisheries Office (GARFO), 12024, March 6, 2008). In April 2008, a Bank region (Unit 1) and off the 978–282–8484, [email protected]; Southeast U.S. coast (Unit 2). We have final critical habitat designation was Barb Zoodsma, NMFS, Southeast published for the North Pacific right considered positive and negative Regional Office, 904–415–3960, economic, national security, and other whale (73 FR 19000, April 8, 2008). [email protected]; Lisa On October 1, 2009, NMFS received a relevant impacts of the proposed critical Manning, NMFS, Office of Protected habitat. We do not propose to exclude petition to revise the 1994 critical Resources, 301–427–8466, habitat designation for right whales in any particular area from the proposed [email protected]. critical habitat. the North Atlantic. In response, SUPPLEMENTARY INFORMATION: We are soliciting comments from the pursuant to section 4(b)(3)(D), NMFS The Draft Biological Source Document public on all aspects of the proposal, published a combined 90-day finding (NMFS 2014a) and Draft ESA Section including our identification and and 12-month determination on October 4(b)(2) Report (NMFS 2014b) prepared consideration of impacts of the 6, 2010, that the petition presented in support of this proposal for critical proposed action. A draft Biological substantial scientific information habitat for the North Atlantic right Source Document provides the basis for indicating that the requested revision whale are available on our Web site at our identification of the physical and may be warranted, and that we intended www.greateratlantic.fisheries.noaa.gov, biological features essential to the to issue a proposed rule to revise critical on the Federal eRulemaking Web site at conservation of the species that may habitat for the North Atlantic right http://www.regulations.gov, or upon require special management whale (75 FR 61690). As noted in that request (see ADDRESSES). considerations or protection. A draft finding, the biological basis and analysis for the 1994 critical habitat designation report was also prepared pursuant to Background section 4(b)(2) of the Endangered were based on the North Atlantic In 1970, right whales, Eubalaena spp. population of right whales, and we Species Act (ESA) in support of this were listed as endangered (35 FR 18319; proposal. Both supporting documents consider that designation to continue to December 2, 1970). At that time, we apply to North Atlantic right whales are available for public review and considered the northern right whale comment. after they were subsequently listed as a species (Eubalaena glacialis) to consist separate species in 2008. At this time, DATES: Comments on this proposal must of two populations; one occurring in the NMFS is proposing to replace the 1994 be received by April 21, 2015. North Atlantic Ocean and the other in critical habitat designation for the ADDRESSES: You may submit comments, the North Pacific Ocean. In 1994, we population of right whales in the North identified by the NOAA–NMFS–2014– designated critical habitat for the Atlantic Ocean with two new areas of 0085, by any of the following methods: northern right whale population in the critical habitat for the North Atlantic • Electronic Submissions: Submit all North Atlantic Ocean (59 FR 28805; right whale. electronic public comments via the June 3, 1994). This critical habitat Federal eRulemaking Portal. Go to designation includes portions of Cape North Atlantic Right Whale Natural www.regulations.gov/ Cod Bay and Stellwagen Bank, the Great History and Status #!docketDetail;D=NOAA-NMFS-2014- South Channel (each off the coast of The following discussion of the life 0085 click the ‘‘Comment Now’’ icon, Massachusetts), and waters adjacent to history and reproductive biology and complete the required fields, and enter the coasts of Georgia and the east coast population status of North Atlantic right or attach your comments. of Florida. These areas were determined whales is based on the best scientific • Mail: Assistant Regional to provide critical feeding, nursery, and data available, including the North Administrator, Protected Resources calving habitat for the North Atlantic Atlantic right whale Status Review Division, NMFS, Greater Atlantic population of northern right whales. Report (NMFS 2006) and the Draft

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Biological Source Document (NMFS whale is in danger of extinction waters of Greenland and Iceland 2014a). throughout its range. (Waring et al. 2011). The North Atlantic right whale Waring et al. (2013) examined the Right whales have also been rarely (Eubalaena glacialis) is a member of the minimum number alive population observed in the Gulf of Mexico. The few family Balaenidae and is closely related index calculated from the individual published sightings (Moore and Clark to the right whale species that inhabit sightings database, as it existed on 21 1963, Schmidly and Melcher 1974, the North Pacific Ocean (Eubalaena October 2011, for the years 1990–2009, Ward-Geiger et al. 2011) represent either japonica) and the Southern hemisphere and found the data suggest a positive geographic anomalies or a more (Eubalaena australis). Right whales are and slowly accelerating trend in extensive historic range beyond the sole large baleen whales that grow to lengths population size. These data reveal a known calving and wintering ground in and weights exceeding 15 meters and 70 significant positive trend in the number the waters of the southeastern United tons, respectively. Females are typically of catalogued whales alive during this States (Waring et al. 2009). Therefore, larger than males. The distinguishing period, but with significant interannual the Gulf of Mexico is not considered features of right whales include a stocky variation due to apparent losses part of the geographical area occupied body, generally black coloration exceeding gains during 1998–1999. by the species ‘‘at the time it was (although some individuals have white These data reveal a significant increase listed.’’ patches on their undersides), lack of a in the number of catalogued whales Our regulations at 50 CFR 424.12(h) 1 4 state: ‘‘Critical habitat shall not be dorsal fin, large head (about ⁄ of the with a geometric mean growth rate for designated within foreign countries or body length), strongly bowed margin of the period of 2.6% (Waring et al. 2013). the lower lip, and hard white patches of in other areas outside of United States callosities on the head region. Two rows Critical Habitat Identification and jurisdiction.’’ Although North Atlantic of long (up to approximately eight feet Designation right whales have been sighted in in length) baleen plates hang from the coastal waters of Canada, Greenland, Critical habitat is defined by section upper jaw with approximately 225 Iceland, and Norway, these areas cannot 3 of the ESA as (i) the specific areas plates on each side. The tail is broad, be considered for designation. The within the geographical area occupied deeply notched, and all black with geographical area occupied by listed by the species, at the time it is listed, smooth trailing edge. Right whales North Atlantic right whales that is on which are found those physical or attain sexual maturity at an average age within the jurisdiction of the United biological features (I) essential to the of 8–10 years, and females produce a States is therefore limited to waters off conservation of the species and (II) single calf at intervals of 3 to 5 years the U.S. east coast between Maine and which may require special management (Kraus et al. 2001). Their life expectancy Florida, seaward to the boundary of the considerations or protection; and (ii) is unclear, but individuals have been U.S. Exclusive Economic Zone. known to reach 70 years of age specific areas outside the geographical area occupied by the species at the time Physical or Biological Features Essential (Hamilton et al. 1998a, Kenney 2002). for Conservation Historically, right whale species it is listed, upon a determination by the occurred in all the world’s oceans from Secretary that such areas are essential As noted previously, NMFS produced temperate to subpolar latitudes. They for the conservation of the species. This a Draft Biological Source Document primarily occur in coastal or shelf definition provides a step-wise (NMFS 2014a) that discusses our waters, although movements over deep approach to identifying areas that may application of the ESA’s definition of waters are known to occur. Right whales be designated as critical habitat for critical habitat for right whales in detail. are generally migratory, with at least a North Atlantic right whales. The following discussion is derived portion of the population moving Geographical Areas Occupied by the from that document. Within the geographical area between summer feeding grounds in Species temperate or high latitudes and winter occupied, critical habitat consists of calving areas in warmer waters, though ‘‘Geographical areas occupied’’ in the specific areas on which are found those during winter the whereabouts of a definition of critical habitat is physical or biological features essential portion of the population remain interpreted to mean the entire range of to the conservation of the species unknown (Waring et al. 2013). Right the species at the time it was listed, (hereafter also referred to as ‘‘essential whale populations were severely inclusive of all areas they use and move features’’) and that may require special depleted by historic commercial through seasonally (45 FR 13011; management considerations or whaling. February 27, 1980). Prior to extensive protection. Section 3 of the ESA (16 The distribution of North Atlantic exploitation, the North Atlantic right U.S.C. 1532(3)) defines the terms right whales in the western North whale was found distributed in ‘‘conserve,’’ ‘‘conserving,’’ and Atlantic Ocean ranges primarily from temperate, subarctic, coastal and ‘‘conservation’’ in part to mean: ‘‘To use calving grounds in coastal waters of the continental shelf waters throughout the and the use of all methods and southeastern United States to feeding North Atlantic Ocean rim (Perry et al. procedures which are necessary to bring grounds in New England waters and the 1999). Considerable sightings data exist any endangered species or threatened Canadian Bay of Fundy, Scotian Shelf, documenting use of areas in the western species to the point at which the and Gulf of St. Lawrence. The minimum North Atlantic Ocean where right measures provided pursuant to this number of right whales in the western whales presently occur. The current chapter are no longer necessary.’’ North Atlantic Ocean is estimated to be known distribution of North Atlantic Further, our regulations at 50 CFR at least 444 individuals, based on a right whales is largely limited to the 424.12(b) for designating critical habitat census of individual whales identified western North Atlantic Ocean. In the state that physical and biological using photo-identification techniques western North Atlantic, right whales features that are essential to the (Waring et al. 2013). Due to the past migrate along the North American coast conservation of a given species and that depletion from which they have not between areas as far south as Florida, may require special management recovered, the continued anthropogenic and northward to the Gulf of Maine, the considerations or protection may threats to the species, and the whale’s Bay of Fundy, the Gulf of St. Lawrence include: (1) Space for individual and life history, the North Atlantic right and the Scotian shelf, extending to the population growth, and for normal

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behavior; (2) food, water, air, light, The Physical and Biological Features of we conclude that facilitating successful minerals, or other nutritional or Foraging Habitat That Are Essential to feeding by protecting the physical and physiological requirements; (3) cover or the Conservation of the Species biological features that characterize shelter; (4) sites for breeding, North Atlantic right whales are filter feeding habitat is a key conservation reproduction, rearing of offspring, feeders whose prey consists exclusively objective that could be supported by germination, or seed dispersal; and of zooplankton, notably the copepod designation of critical habitat for the generally, (5) habitats that are protected Calanus finmarchicus. Right whales species. The features of right whale foraging from disturbance or are representative of forage by filtering large volumes of habitat that are essential to the the historic geographical and ecological seawater through open mouths, trapping conservation of the North Atlantic right distributions of a species. zooplanktonic organisms on the dense whale are a combination of the filamentous mat fringing the inner For right whales, the 2005 Recovery following biological and physical surface of their baleen (Mayo and Marx Plan defines conservation as the use of oceanographic features: all methods and procedures necessary to 1990). Foraging takes place at the (1) The physical oceanographic surface or at depth depending on the bring right whales to the point at which conditions and structures of the Gulf of habitat type and where in the water factors related to population ecology Maine and Georges Bank region that column the prey source aggregates and vital rates indicate that the combine to distribute and aggregate C. (Mayo and Marx 1990, Baumgartner et population may be: (1) Downlisted to finmarchicus for right whale foraging, al. 2003a). namely prevailing currents and threatened, and; (2) ultimately, delisted Oceanic waters off New England and because it is no longer in danger of circulation patterns, bathymetric Nova Scotia are the primary feeding features (basins, banks, and channels), extinction throughout all or a significant habitat for right whales during the late portion of its range. Important factors oceanic fronts, density gradients, and winter, spring, summer, and fall. temperature regimes; related to right whale population Variation in the abundance and (2) Low flow velocities in Jordan, ecology and vital rates include development of suitable food patches Wilkinson, and Georges Basins that population size and trend, range, appears to modify the general patterns allow diapausing C. finmarchicus to distribution, age structure, gender ratios, of right whale movement by reducing aggregate passively below the age-specific survival, age-specific peak numbers, stay durations, and convective layer so that the copepods reproduction, and lifetime reproductive specific locales (Brown et al. 2001, are retained in the basins; success. Kenny et al. 2001). In particular, large (3) Late stage C. finmarchicus in The 2005 Recovery Plan identifies changes in the typical pattern of food dense aggregations in the Gulf of Maine five major objectives designed to abundance can dramatically change the and Georges Bank region; and general pattern of right whale habitat increase population size and vital rates (4) Diapausing C. finmarchicus in use (Kenny et al. 2001, Baumgartner so that North Atlantic right whales may aggregations in the Gulf of Maine and 2001). In New England, peak abundance Georges Bank region. be reclassified to threatened. These of feeding right whales occurs in Cape objectives include significantly reducing Cod Bay beginning in late winter. In 1. Physical Oceanographic Features sources of human-caused death, injury early spring (May), peak right whale Characteristic of Right Whale Foraging and disturbance; developing abundance occurs in Wilkinson Basin to Habitat demographically-based recovery the Great South Channel (Kenney et al. Within the Gulf of Maine, right whale criteria; identifying, characterizing, 1995). In late June and July, right whale foraging activities are concentrated in protecting and monitoring important distribution gradually shifts to the areas where physical oceanographic habitats; monitoring the status and Northern Edge of Georges Bank. In late conditions and structures, namely trends of abundance and distribution of summer (August) and fall, much of the prevailing currents and circulation the species; and coordinating federal, population is found in waters in the Bay patterns, bathymetric features (basins, state, local, international and private of Fundy and around Roseway Basin banks, and channels), oceanic fronts, efforts to implement the Recovery Plan. (Winn et al. 1986, Kenny et al. 1995, density gradients, and temperature Based on the Recovery Plan’s Kenny et al. 2001). regimes operate to concentrate copepods reclassification objectives and criteria A right whale’s mass is approximately (Wishner et al. 1988, Mayo and Marx 10 orders of magnitude larger than that 1990, Murison and Gaskin 1989, for North Atlantic right whales, NMFS of its prey, and the right whale’s life Baumgartner et al. 2003a, Jiang, et al has identified four biological behaviors history and reproductive strategies 2007, Pace and Merrick 2008). The that are critical to the overarching create very high energetic demands. bathymetry of the central Gulf of Maine recovery objectives of increased survival Right whales are very specialized and is dominated by three large, deep and population growth: (1) Feeding, (2) restricted in their feeding requirements. basins: Jordan and Georges Basins to the calving, (3) migration and (4) breeding. They must locate and exploit feeding northeast and east, respectively, and In the following section, we evaluate areas where copepods are concentrated Wilkinson Basin in the southwest. The whether there are physical and into high-density patches. Efficient Jordan, Wilkinson, and Georges deep biological features of the habitat areas feeding on prey with high nutritional water basins serve as refugia habitat for known to be used for these behaviors value is essential to the conservation of the essential feature of diapausing that are essential to the species’ the North Atlantic right whale. Efficient copepods (Davis 1987, Meise and conservation because they facilitate or feeding is not only important to meet O’Reiley 1996, Lynch et al. 1998, are intimately tied to the behaviors. the day-to-day caloric needs of Johnson et al. 2006). The oceanographic Because these behaviors are essential to individual right whales, but is features of the Gulf of Maine are very the species’ conservation, facilitating or important to achieve the overall goal of dynamic, with strong currents, sharp protecting each one is considered a key conservation because of the potential frontal gradients, and high mixing rates. conservation objective for any critical correlation between the abundance and Additionally, the Gulf of Maine has a habitat designation for this species. caloric richness of copepods and the complex and highly variable circulation calving rates for right whales. Therefore, regime due to varying inflow of Atlantic

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Ocean water, interactions between the Durbin 1997). The cold water inflow within the Gulf of Maine slows until, by eastern and western Maine coastal from the Nova Scotian Shelf and the late winter, it is no longer evident (Xue currents, freshwater inflow and Northeast Channel helps drive the et al. 2000). temperature fluctuation. Water primarily counterclockwise circulation In Cape Cod Bay, the general water circulation within the Gulf is strongly of the Gulf, propelling the Maine flow is counter-clockwise, running from influenced by its topography, with Coastal Current in a southwesterly the Gulf of Maine south into the western counterclockwise flow over Georges, direction (Brooks 1985, Durbin 1997). half of Cape Cod Bay, over to eastern Jordan, and Wilkinson Basins and The Maine Coastal Current has two Cape Cod Bay, and back into the Gulf clockwise circulation over Georges and major components, the Eastern Maine of Maine through the channel between Brown Banks and Nantucket Shoals Coastal Current off Maine’s east coast the north end of Cape Cod and the (Smith 1989, Brown and Irish 1992, and the Western Maine Coastal Current southeast end of Stellwagen Bank, a Bisgani and Pettigrew 1994). These off the coasts of western Maine, New submarine bank that lies just north of physical features have a large effect on Hampshire and Massachusetts. These Cape Cod. Similar to the Maine Coastal the distribution, abundance, and currents are influenced by fluctuations Current, flow within the bay is driven population dynamics of zooplankton in river outflow, often enhanced during by density gradients caused by populations including C. finmarchicus spring runoff. Lower salinity surface freshwater river run-off from the Gulf of within the Gulf (Durbin 1997). water from spring runoff carried into Maine and by a predominantly westerly Major Gulf of Maine and Georges this region by the Maine Coastal Current wind (Franks and Anderson 1992a, Bank oceanographic features include the can cause strong stratification and 1992b, Geyer et al. 1992). Thermal Maine Coastal Current (MCC), Georges increase the rate of horizontal transport, stratification occurs in the bay during Bank anti-cyclonic frontal circulation therefore having an impact on the the summer months. Surface water system, the basin-scale cyclonic gyres abundance, distribution and population temperatures typically range from 0 to (Jordan, Georges and Wilkinson), the dynamics of C. finmarchicus in the Gulf 19 °C throughout the year. The deep inflow through the Northeast of Maine (Durbin 1997). circulation pattern in Cape Cod Bay Channel, the shallow outflow via the The Gulf of Maine’s circulation allows for the entrainment of C. Great South Channel and the shelf-slope pattern is principally density driven finmarchicus produced elsewhere. front (Gangopadhyay et al. 2003, Pace largely because of seasonal temperature The Great South Channel becomes and Merrick 2008). These features create changes and salinity gradients. During thermally stratified during the spring the conditions that disperse, concentrate spring and summer months, water and summer months. Surface waters and retain copepods within the Gulf of within the Gulf warms, resulting in typically range from 3 to 17 °C between Maine. The prevailing oceanographic buoyant, less dense water that expands, winter and summer. Salinity is stable features and conditions also create low setting up a westerly flowing coastal throughout the year at approximately energy environments within several of current. The seasonal warming pattern 32–33 parts per thousand (Hopkins and the deep ocean basins located within of waters within the Gulf of Maine also Garfield 1979). In late-winter/early the Gulf of Maine. results in enhanced stratification of the spring, mixing of warmer shelf waters Water from the Northwest Atlantic water column. Warmer, less dense with the cold Gulf of Maine water Ocean enters the Gulf of Maine over the surface water is separated from the funneled through the channel causes a Scotian Shelf and through the deep colder, more saline dense waters that dramatic increase in faunal productivity Northeast Channel, where it forms a persist at greater depth throughout the in the Great South Channel. C. general counterclockwise circulation year. The currents in the Gulf of Maine finmarchicus are concentrated north of pattern. These slope waters entering the are also strongly influenced by density the 100 m isobath at the northern end Gulf of Maine from the Scotian Shelf are gradients between high-salinity slope of the Great South Channel (Wishner et believed to transport considerable water entering from the Atlantic and al. 1995, Durbin et al. 1997, Kenney numbers of developing copepodites fresher waters, which form in the Gulf 2001). originating from both the Gulf of St. of Maine or enter from the Scotian Shelf Baumgartner et al. (2007) note that Lawrence and the Scotian Shelf (Brooks 1985). Within the Gulf of several studies have suggested ocean (Plourde and Runge 1993, Greene and Maine, the freshwater inflow from fronts, areas that demarcate the Pershing 2000, Conversi et al. 2001, numerous rivers (e.g., the St. John, convergence of different water masses, Pace and Merrick 2008). Within the Gulf Penobscot, Kennebec, Androscoggin, as a possible mechanism for of Maine several smaller scale and Merrimac Rivers) within the Gulf of concentrating the copepod, C. circulation patterns form over Maine watershed contributes to the finmarchicus at densities suitable to oceanographic features, including some density driven circulation pattern support right whale foraging of the deep water basins. Some of this (Brooks 1985, Xue et al. 2000). requirements. However, the available water exits the Gulf of Maine through There is a distinct seasonal pattern information is somewhat contradictory, the Great South Channel, while some associated with prevailing circulation with some studies finding associations continues to the northwest where it patterns within the Gulf of Maine. between right whale foraging and flows onto Georges Bank in a clockwise During spring and summer, the surface oceanic fronts and others finding no circulation gyre (Chen et al. 1995, circulation pattern in the Gulf of Maine evidence of associations (Wishner et al. Durbin 1997). is characterized by a predominantly 1995, Beardsley et al. 1996, Epstein and Due to the strong influence of the cyclonic (i.e., counterclockwise) Beardsley 2001, Baumgartner el al. Labrador Current, the water of the Gulf circulation pattern with cyclonic and 2007). Given the evidence that in some of Maine is significantly colder and anti-cyclonic (clockwise) gyres over the cases oceanic fronts are contributing more nutrient-rich than waters to the three main basins and banks. As surface factors to concentrating copepods and south. This relatively fresh, cold water water cools during the fall months, it their role is uncertain in other cases, we flows to the northeast around the becomes denser and sinks, mixing with are identifying oceanic fronts as one of southern end of Nova Scotia, across the stratified water below and breaking the combination of physical mouth of the Bay of Fundy and then down the stratification of the water oceanographic features that are essential flows southward. This water helps drive column. As the stratification weakens, to right whale conservation. In the Maine Coastal Current (Brooks 1985, the counterclockwise circulation pattern combination, these features and

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mechanisms have been linked to Johnson et al. (2006) also examined earlier conclusions about the increased copepod densities the influence of environmental forcing importance of the Jordan, Wilkinson, (Baumgartner et al. 2007). Therefore, we and copepod behavior on transport and and Georges Basins, in addition to the identified the following as a physical retention of dormant C. finmarchicus in Scotian shelf and its sources, as a feature of North Atlantic right whale the deep Gulf of Maine. Based on model copepod source for the Gulf of Maine feeding habitat essential to its simulations, they concluded that both ecosystem. Li et al. (2006) suggest that conservation: The physical transport and retention of C. copepod sources within the Gulf of oceanographic conditions and structures finmarchicus within the Gulf of Maine Maine are sufficient to account for the of the Gulf of Maine and Georges Bank was high. The copepod transport and early C. finmarchicus population of region that combine to distribute and retention simulations demonstrate Georges Bank, with an increased aggregate C. finmarchicus for right transport of copepods from the eastern importance of advected sources later in whale foraging, namely prevailing Gulf of Maine into the western Gulf of the year. Models by Lynch et al. (1998) currents and circulation patterns, Maine, as well as the recruitment of support all three deep basins (Jordan, bathymetric features (basins, banks, and copepods from slope and Scotian Shelf Wilkinson and Georges) as contributors channels), oceanic fronts, density waters into the eastern Gulf of Maine of C. finmarchicus to Georges Bank and gradients and temperature regimes. (Johnson et al. 2006). The researchers the Great South Channel. The In addition to the combination of concluded that while a high proportion simulation models of Johnson et al. physical oceanographic conditions and of dormant copepods are retained in the (2006) support the importance of Jordan structures identified previously, the Gulf of Maine as a whole, transport and Wilkinson Basins in the population hydrographic conditions of the deep within the Gulf of Maine was significant dynamics of C. finmarchicus within the ocean basins are important because they during the summer and fall, and loss Gulf of Maine. are conducive to low flow velocities. from individual basin regions can be Given that low velocity environments Within the low velocity environments of high (Johnson et al. 2006). Simulation are important for aggregating dormant the deep ocean basins, the neutrally results suggest the Wilkinson Basin copepods, and given that the best buoyant diapausing copepods passively region is the most retentive of the three available data indicate that the ability of aggregate below the convective mixed major basins and receives copepods the Jordan, Wilkinson, and Georges layer (Lynch et al. 1998, Visser and transported from Jordan and Georges Basins to retain dormant copepods is Jo´nasdo´ttir 1999, Baumgartner et al. Basins. high, we conclude another physical As noted earlier, Jordan and Georges feature of North Atlantic right whale 2003a, Pace and Merrick 2008). The Basins are themselves recipients of foraging habitat essential to its ability of copepods within the deep copepods from upstream sources in the conservation is: Low flow velocities in basins in the Gulf of Maine to Northeast Channel, continental slope Jordan, Wilkinson, and Georges Basins repopulate the Gulf of Maine is water, and Scotian Shelf (Johnson et al. that allow diapausing C. finmarchicus to dependent on how well they are 2006). Simulations of population aggregate passively below the retained within the basins during this dynamics of C. finmarchicus in the Gulf convective layer so that the copepods period of dormancy. Researchers have of Maine indicate that the deep basins are retained in the basins. developed models that predict that the of the Gulf (i.e., Wilkinson, Jordan and deep basins in the Gulf of Maine are 2. Biological Features Characteristic of Georges Basins) are capable of Right Whale Foraging Habitat sources of copepods for other areas supplying copepods to Georges Bank at within the Gulf of Maine (Lynch et al. the onset of the growing season (Lynch The biological features of foraging 1998, Johnson et al. 2006). These et al. 1998). Lynch et al. (1998) habitat that are essential to the modeling results support the existence conclude that Jordan and Wilkinson conservation of the North Atlantic right of deep resting C. finmarchicus Basins provide habitat for resting stocks whale are: (1) Late stage C. finmarchicus populations present in these basins and of C. finmarchicus and that Georges in dense aggregations in the Gulf of help to explain their age distribution Basin may also serve this function. Maine and Georges Bank region; and (2) and abundance in the rest of the Gulf of Miller et al. (1998) provides an Diapausing C. finmarchicus in Maine (Lynch et al. 1998, Johnson et al. individual-based population model of C. aggregations in Jordan, Wilkinson, and 2006). finmarchicus for the Georges Bank Georges Basins. Johnson et al. (2006) concluded that region demonstrating the importance of For much of the year, the distribution ‘‘surface waters of the Gulf of Maine Georges Basin, as well as Wilkinson and of the North Atlantic right whale is both supply the deep Gulf of Maine Jordan Basins, as sources of C. strongly correlated to the distribution of with C. finmarchicus and in turn are finmarchicus to Georges Bank. As for their prey. Right whale distribution in supplied with C. finmarchicus from specific zones within the Gulf of Maine, the Gulf of Maine is largely controlled deep water.’’ Modeling has suggested Miller et al. (1998) point to the Marine by zooplankton distribution (Mayo et al. that endogenous C. finmarchicus (i.e. Resources Monitoring, Assessment, and 2004, Singer and Ludwig 2005). As offspring of copepods that emerged Prediction (MARMAP) samples that discussed in the Biological Source locally) can re-stock Wilkinson Basin in support Jordan and Wilkinson Basins as Document (NMFS 2014a), North the western Gulf of Maine, while self- sources, and suggest that Georges Basin Atlantic right whales prey primarily on stocking is minimal in Jordan and may also be a contributor. The role of zooplankton, specifically the later Georges Basins (Miller et al. 1998). Georges Basin has been debated due to juvenile stages (copepodites) of a Jordan and Georges Basins are restocked the considerable water movement and species of copepod, C. finmarchicus by external sources of copepods relative connection between Georges (Baumgartner et al. 2007). Kenney et al. entering in surface Scotian Shelf and Basin and the shelf edge (Lynch et al. (1986) estimated the minimum caloric continental slope waters or in the 230- 1998, Pace and Merrick 2008). Recent intake required by a right whale, using m deep Northeast Channel (Johnson et simulation models combining plankton standard mammalian metabolic models. al. 2006). These copepods subsequently sampling results of the last two decades Not only must right whales meet their enter dormancy in these deep water and earlier, robust circulation models of basal (i.e., resting) metabolic needs but basins (Lynch et al., 1998, Johnson the Gulf of Maine, and life history they must obtain an energy surplus in 2006). dynamics of C. finmarchicus corroborate the long-term (Brodie 1975, Sameoto

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1983, Kenney et al. 1986, Kenney and note that the stable calving rates were essential to its conservation is Wishner 1995). Using estimates of consistent with the relatively high aggregations of diapausing C. mouth opening area, swimming speed, abundance of C. finmarchicus observed finmarchicus in the Jordan, Wilkinson, and daily foraging time, Kenney et al.’s during the 1980s. From 1993 to 2001, and Georges Basins. (1986) model suggests an average 40 ton right whale calving rates exhibited two The Physical and Biological Features of right whale’s basal energetic major, multi-year declines, with the Calving Habitat That Are Essential to requirements range from 7.57 to 2,394 mean rate dropping and becoming much the Conservation of the Species kcal/m3 or a concentration of 4.67 × 103 more variable at 11.2 ± 2.7 (SE) calves to 1.48 × 106/m3 stage C5 C. per year. Greene et al. (2003) found that Like most large whales, North finmarchicus. these declines coincided with the two Atlantic right whales tend to calve in In order to maximize their caloric precipitous drops in C. finmarchicus warm subtropical waters during winter, intake, right whales must target dense abundance observed during the early and migrate to feed in the highly layers containing large, energetically and late 1990s. productive cold temperate and subpolar rich prey (Wishner et al. 1995). The late In terms of biomass C. finmarchicus is waters in spring and summer (Green developmental life stages (stages C4–C5) the dominant copepod in the Gulf of and Pershing 2004). The only known of the copepod C. finmarchicus are Maine (Bigelow 1926, Fish and Johnson calving habitat for North Atlantic right generally recognized as the North 1937, Durbin 1996). The annual life whales occurs along the southeastern Atlantic right whale’s primary prey cycle of the copepod C. finmarchicus U.S. coast (Kraus et al. 1986, Knowlton (Watkins and Schevill 1976, 1979, includes a relatively complex series of et al. 1994, Reeves et al. 2001). Recent Kenney et al. 1986, 1995, Wishner et al. interconnected life stages. Beginning in aerial survey data indicate calving and 1988, 1995, Murison and Gaskin 1989, late spring and early summer (May and nursing occur from northeastern Florida Mayo and Marx 1990, Beardsley et al. June), as seasonal water temperature and southeastern Georgia as far north as 1996, Kenney et al. 2001, Baumgartner increases and phytoplankton levels North Carolina (e.g., Good 2008, 2003b). When compared to other decrease, C. finmarchicus C5 undergo a McClellan et al. 2004). Reproductive copepods, C. finmarchicus has a much vertical migration to deep waters where females, the most valuable portion of larger biomass and higher caloric they enter a state of dormancy (Bigelow this species’ population, are sighted in content (Baumgartner et al. 2007). Late 1927, Davis 1987, Durbin et al.1995). the calving ground off the coast of stage C. finmarchicus, especially C5, Most of the C. finmarchicus population Florida and Georgia (Fujiwara and contain high lipid content and are can be found in diapause in deep water Caswell 2001, Garrison 2007, Hamilton therefore the most energetically rich in the summer and fall (Durbin et al. et al. 2007) and typically arrive during zooplankton prey source available to 2000, Baumgartner et al. 2003). These late November and early December after right whales. Baumgartner et al. (2003a) dormant, diapausing pre-adult C5 migrating south from feeding grounds in found a correlation between right whale copepodites form dense layers near the the northeastern United States and diving depths and depth of maximum bottom of deep basins and continental Canada. Mothers and newborn calves stage C5 C. finmarchicus abundances in slope waters. Diapausing C. reside within the southeast through Grand Manan Basin in the lower Bay of finmarchicus are characterized by their winter and generally depart the calving Fundy. By focusing their foraging efforts stage of development, deep distribution, grounds by the end of March or early on the energetically rich late stage C. large oil sacs on which they rely for April (Reeves et al. 2001). Given that the finmarchicus, right whales are able to energy, and low activity rates area off the southeastern U.S. is the only maximize their energy intake. If (Baumgartner et al. 2003a). This known calving ground for North sufficient densities of late stage C. behavior may be an adaptive measure Atlantic right whales, and that the most finmarchicus become unavailable to for surviving periods of low food biologically valuable portion of the feeding right whales, it is uncertain if availability and/or for reducing species’ population is utilizing this the remaining developmental stages of predation rates (Davis 1987, Kaartvdet habitat, we conclude that facilitating C. finmarchicus and other prey species 1996, Dale et al 1999, Baumgartner et al. successful calving by protecting the (independent of abundance) could 2003a). In late winter, diapausing C. species’ calving area is a key provide right whales with the required finmarchicus emerge from their dormant conservation objective. Thus, to identify energetic densities to meet their state and molt to the adult stage, specific areas that may meet the metabolic and reproductive demands migrating to the phytoplankton rich definition of critical habitat, we focused (Kenney et al. 1986, Payne et al. 1990). surface layer (Marshall and Orr 1955, first on specifically defining what As the principal prey source of right Davis 1987, Baumgartner et al 2007). constitutes a ‘‘calving’’ area for North whales, C. finmarchicus abundance may These diapausing copepods serve as one Atlantic right whales; that is, what are play a key role in determining of the primary source populations for the functions this area provides that conditions favorable for right whale the copepods that later form the dense promote successful calving and rearing. reproduction (Greene and Pershing aggregations of late stage C. We then examined these functions and 2004) (Kenney et al. 2001). Greene et al. finmarchicus upon which North next identified those physical or (2003) linked right whale calving rates Atlantic right whales feed. biological features that are essential to to changes in the North Atlantic Given that these dormant, diapausing the conservation of the species because Oscillation and concurrent changes in pre-adult C5 copepodites serve as one of they provide calving area functions to the abundance of C. finmarchicus. the primary source populations for the species in these areas. Greene et al. (2003) found that major annual recruitment of the essential The physical features of right whale multi-year declines in right whale feature of late stage C. finmarchicus to calving habitat that are essential to the calving rates have tracked major multi- the waters of the Gulf of Maine and conservation of the North Atlantic right year declines in C. finmarchicus Georges Bank region, and given that the whale are: (1) Calm sea surface abundance since 1982. Greene et al. Jordan, Wilkinson, and Georges Basins conditions of Force 4 or less on the (2003) also found that calving rates were within the Gulf of Maine support both Beaufort Wind Scale; (2) Sea surface relatively stable from 1982 to 1992, with transport and retention of copepods, temperatures from a minimum of 7 °C, a mean rate of 12.4 ± 0.9 (standard error another biological feature of North and never more than 17 °C; and (3) (SE)) calves per year. These researchers Atlantic right whale feeding habitat Water depths of 6 to 28 meters, where

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these features simultaneously co-occur additional energy for thermoregulation typically have temperatures greater than over contiguous areas of at least 231 when temperatures are either too cold or 20 °C during winter, and water closer to km2 of ocean waters during the months too hot compared to some thermal shore is cooler, ranging between 8 and of November through April. When these optimum. North Atlantic right whales 17 °C in the southeastern U.S. during features are available, they are selected have a mean blubber thickness of 12.2 winter months (Garrison 2007). Pulses by right whale cows and calves in cm (range 8 to 22 cm) (3 to 8.6 inches), of warm water frequently move dynamic combinations that are suitable and the blubber of new mothers is shoreward as the result of Gulf Stream for calving, nursing, and rearing, and thicker than that of females in late meanders, but a steady tongue of colder which vary, within the ranges specified, lactation or nulliparious females (i.e., water persists directly adjacent to shore depending on factors such as weather females that have not given birth to a and out to the continental shelf break in and age of the calves. calf yet) (Angell 2006). The thick winter (Stegmann and Yoder 1996, As discussed in the Biological Source blubber of parturient females may pose Keller et al. 2006). These waters are Document (NMFS 2014a), habitat a thermal constraint, and it is expected warmer than those in the northern characteristics common to lower that new mothers will be more sensitive feeding grounds during winter, yet latitude calving areas for large whales to warm temperatures (e.g., Atlantic cooler than the waters located farther include warmer water temperatures, Ocean Gulf Stream water) than to colder offshore the southeastern U.S. that are lower average wind speeds, less temperatures, compared to females in influenced by the warm waters of the frequent storms, and lower wave heights late lactation or nulliparious females Gulf Stream. compared to conditions at higher (Good 2008). Calves are unlikely to face Aerial surveys for calving right latitudes (Garrison 2007). These such constraints (Good 2008) because whales have been conducted in the common calving habitat characteristics calves do not have a thick blubber layer; southeastern U.S. each winter for large whales likely provide an blubber from newborn southern right (December–March) since 1992. Survey energy benefit to both lactating mothers whale calves in South Africa averaged 5 effort has varied throughout the area and calves. Female baleen whales do cm (2 inches) in thickness (Reeb et al. with the core calving area being not typically feed during movement to, 2007). Therefore, newborn calves surveyed most consistently (Keller et al. or the residence period in, the calving without the thick blubber layer of adults 2006). The bias created by this uneven ground, and endure a significant do not have the same thermal tolerance survey effort can be reduced by energetic cost with reproduction as adult whales (Garrison 2007). standardizing mother-calf sightings by (Garrison 2007). Mother whales fast Because of the differences in the level of survey effort on a spatial scale during part of or throughout lactation, thermoregulatory needs of mothers (i.e., (i.e., effort-corrected sightings or and maternal reserves are heavily preferring waters that are not too warm sightings per unit of effort). Based on exploited for milk production (Oftedal so as to avoid heat stress) and newborns effort-corrected sightings data, the 1997, 2000). Fasting in warm water and calves (i.e., preferring waters that densest distribution of observed North during lactation is likely more efficient are not too cold so as to avoid cold Atlantic right whale mother-calf pairs is than feeding, or even fasting, in colder stress), it is likely that pairs of new generally between St. Augustine, water where energy reserves must be mothers (i.e. blubber rich) and spent to keep body temperatures up as newborns or calves (i.e. blubber poor) Florida, and just south of Savannah, discussed later. Warm-water may also on a calving ground have relatively Georgia in waters of the inner shelf of aid in the conversion of maternal body narrow combined thermal tolerances the SAB. Garrison (2007) and Keller et fat to high-fat milk, hence contributing (Garrison 2007). al. (2012) assessed habitat correlations to rapid calf growth (Oftedal 2000, North Atlantic right whales are and spatial patterns in the distribution Whitehead and Mann 2000). observed calving off the southeastern of right whale mother-calf pairs using Females in calmer, shallower waters U.S. coast, in an area known as the sightings data, satellite derived sea require less energy for surfacing, and South Atlantic Bight (SAB). The SAB surface temperature, bathymetry, thus reserve energy for calving and extends roughly from Cape Hatteras, modeled average wind data, and several nursing. Additionally, newborn animals North Carolina, to West Palm Beach, other spatial variables. The modeling may have increased survival, and/or Florida. The SAB continental shelf results indicate that sea surface lower energy expenditure in warmer, varies from 40 to 140 km wide, with a temperature and water depth are calmer, or less predator-infested waters shallow bathymetric slope. In the inner significant predictors of calving right (Brodie 1975, Lockyer 1987, as cited in shelf, where the water depth is shallow whale spatial distribution. Wind Whitehead and Mann 2000, Corkeron and friction is large, the current intensity did not explain the spatial and Connor 1999). Calves have been responds almost instantaneously to distribution of calving right whales in reported to have difficulty surfacing to local wind stress; as a result, water these two studies (Garrison 2007, Keller breathe in extremely rough waters moves in the same direction as the wind et al. 2012). Using the significant (Thomas and Taber 1984). Further, (Chen 2000). In the middle and outer predictor variables of sea surface calves are relatively weak swimmers shelves, where the water is deep and temperature and water depth, these (Thomas and Taber 1984) and are more friction is weak, the wind-driven studies showed that peak predicted likely to be separated from their mothers current flows perpendicular to the wind right whale mother-calf pair sighting during storm events and in areas with direction (i.e., Ekman spiral pattern). rates (95th percentile) occur at water high winds and waves; separation from Average winter wind speeds in the temperatures from 13 to 15 °C and water the mother for even a short time is likely region increase when moving farther depths from 10 to 20 m. The 95th fatal for newborn calves (Garrison 2007). offshore. With increasing wind speeds percentile of predicted rates of right Although direct data about thermal comes a corresponding deterioration in mother-calf pair sightings accounts for tolerances in right whales are lacking sea state conditions: Wave size increases only 43.5 percent of all observed right (Kenney 2007), warmer water and the sea surface becomes more whale mother-calf pair sightings. The temperatures likely provide a turbulent. 75th percentile of predicted sighting thermoregulatory benefit to calving right Winter sea surface temperatures rates, however, accounts for 91 percent whales. As homoeothermic (warm- across the SAB range from 8 °C to 25 °C of all observed right whale mother-calf blooded) animals, right whales expend (Good 2008). Gulf Stream waters pair sightings and occurs at water

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temperatures between 7 and 17 °C and respect to surface roughness and sea roughness (Good 2008). Most mother- water depths ranging from 6 to 28 m. surface temperatures. The highest rates calf pairs are located in calm waters at Predicted sighting rates decline (70 to 76 percent) of right whale mother- this time, consistent with reports that dramatically at water temperatures calf pair sightings occurred in areas calves have difficulty surfacing to greater than 17 °C. As calving season predicted as habitat in both 3 and 4 breathe in extremely rough waters progresses from December through months out of the calving season, which (Thomas and Taber 1984), and February, the model shows the accounts for approximately 86 percent separation from the mother for even a predicted number of right whale of all observed right whale mother-calf short time is likely fatal for newborn sightings extending farther south, pair sightings. Good’s (2008) modeling calves (Garrison 2007). Therefore, following the seasonal latitudinal results are similar to the modeling mother-calf pairs are likely to select progression of favorable water results reported by Garrison (2007) and locations with the calmest sea surface temperatures and the seasonal change in Keller et al. (2012), confirming conditions to facilitate the needs of the the distribution of observed right whale bathymetry and sea surface temperature neonate, which is a weak swimmer and sightings. In the southern portion of the importance to right whale mother-calf needs to remain close to the mother to predicted optimal habitat area, the pair distribution on the calving ground. feed, and the needs of the mother who predicted number of right whale Good’s (2008) model also shows that sea is fasting and lactating. If weather sightings are relatively close to shore, surface roughness is a significant conditions are persistently poor (e.g., confined by both the narrow shelf and predictor of right whale mother-calf pair windy and/or stormy conditions), then the incursion of warm water distribution in the SAB. it is likely the mother may search for temperatures influenced by the Gulf Together, the sightings data and and locate conditions more conducive stream close to shore (Garrison 2007, predictive modeling results show that to the needs of a weak-swimming Keller et al. 2012). mother-calf pairs of North Atlantic right neonate. whales are observed and are likely to be Because sea surface roughness has the These results are corroborated by observed in relatively shallow waters strongest correlation to mother-calf pair Good’s (2008) predictive model of (10–20 m) within a narrow range of distribution early in the calving season, optimal right whale calving habitat, water temperatures (7 to 17 °C) (Keller areas of calm water in which these which assesses topological and physical et al. 2012, Good 2008), in relatively mother-calf pairs are located may also conditions associated with the presence calm waters (>23.3 dB), and in close contain sea surface temperatures and of North Atlantic right whale calves in proximity to shore (within 60 km of the water depths within the preferred the SAB. The model was used to coast) (Good 2008). The ranges noted in ranges; however, as these two features evaluate the importance of water depth, parentheses represent the 75th are relatively less important for calf sea surface temperature, and sea surface percentile of right whale mother-calf survival than calm water early in the roughness in relation to the distribution pair sightings predicted by Garrison calving season, areas in which mother- of right whale mother-calf pairs over a (2007) and Keller et al. (2012), which calf pairs are located are more likely to period of 6 years (2000–2005). The also capture the mean ranges of sea contain sea surface temperatures and model showed that sightings of right surface temperature, sea surface water depths at the extremities of the whale mother-calf pairs occurred within roughness, and water depth associated preferred ranges (e.g., 17 °C or upper a narrow range of physical parameters. with right whale mother-calf pair range of values for sea surface Over the course of the winter season sightings reported by Good (2008). temperatures, and 10 m or lower range (December through March), Good’s Garrison’s (2007) and Keller et al.’s of values for water depths). Early in the (2008) model showed that the (2012) 75th percentile of predicted season, these shallow waters have not distribution of female right whales and sighting rates for calving right whales cooled to the seasonal minimum, yet their calves in the SAB is correlated account for the greatest portion of all still provide the necessary thermal with water depth, sea surface observed calving right whales (91 balance for both a fasting, lactating, temperature, and surface roughness, percent) and captures the means blubber-rich mother and a hungry, with the importance of each variable reported by Good (2008). Additionally, weak, blubber-poor neonate. As the differing by month. Sightings of mothers Good’s (2008) rates of right whale calving season progresses and young and calves occurred within a mean mother-calf pair sightings in predicted calves mature and become stronger depth range between 13.8 m and 15.5 m habitat includes the most consistent swimmers, however, calm waters where mean sea surface temperature habitat features over time and accounts become relatively less important to calf ° varied between 14.2 and 17.7 C and for 86 percent or more of all observed survival. Mother-calf pairs begin mean surface roughness varied from right whale mother-calf pair sightings. occupying rougher surface waters and ¥24.8 dB to ¥23.3 dB. Higher Therefore, we conclude Garrison’s the distribution of mother-calf pairs backscatter values (e.g., ¥25 dB) reflect (2007) and Keller et al.’s (2012) 75th begins correlating more strongly with a calmer surface, while lower values percentile and Good’s (2008) habitat the preferred ranges of sea surface (e.g. ¥20 dB) indicate rougher, choppier selected in 3 and 4 months are the most temperatures and water depths. conditions (Good 2008). Sea surface appropriate bases for determining the It is evident from the distribution roughness had the strongest correlation essential features of right whale calving patterns of mother-calf pairs throughout with right whale mother-calf pair habitat in the southeastern U.S. the calving season (see Garrison 2007, distribution early in the calving season Calving right whales can be observed Keller et al. 2012, and Good 2008) that (December) when most mother-calf pairs in waters exhibiting some or all of the calving North Atlantic right whales are were located in waters calmer than the features described previously within the moving throughout the SAB to select rest of the study area; preferred values specified ranges depending on factors optimal combinations of sea surface widened as the calving season such as the weather (e.g., storms, roughness, sea surface temperatures, progressed (February/March) when prevailing winds) and age of the calf and water depths depending on factors whales occupied rougher surface waters, (e.g., neonate versus more mature calf). such as the weather and the age of the especially in March. Further, the habitat For example, early in the calving season calves. Younger, weaker calves are used by non-calving whales differed mother-calf pair distribution is most present earlier in the calving season and from that used by mother-calf pairs with strongly correlated with sea surface Good’s (2008) model shows that this is

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when sea surface roughness had the influenced by weather and the age of the Biological Source Document (NMFS strongest correlation with right whale calves. 2014a) contains a thorough discussion of the available data we considered in mother-calf pair distribution. Therefore, The Physical and Biological Features of our analysis. calmer waters are an essential feature Migratory Habitat That Are Essential to for the conservation of the species the Conservation of the Species The Physical and Biological Features of because they facilitate right whale calf Large-scale migratory movements Breeding Habitat That Are Essential to survival. Additionally, the distribution the Conservation of the Species of mother-calf right whale pairs between feeding habitat in the northeast correlates with (1) a narrow sea surface and calving habitat in the southeast are We have concluded that it is not temperature range (7 °C to 17 °C), which a necessary component in the life- possible to identify essential physical or history of the North Atlantic right biological features related to breeding provides for the thermal balance needs whale. A proportion of the population habitat, primarily because we cannot of both a fasting, lactating, blubber-rich makes this migration annually, and the identify areas where breeding occurs. mother and a hungry, weak, blubber- most valuable life-history stage (calving Right whales are known to aggregate in poor neonate; and with (2) a range of females) must make this migration for large groups called Surface Active water depths (6 to 28 m) that provide for successful reproduction. The subset of Groups (SAGs). While indicative of protection from open ocean swell, the North Atlantic right whale courtship and reproductive behavior, which increases the likelihood of calf population that has been observed not all SAGs are reproductive in nature survival. Therefore, waters within these migrating between the northern feeding (Kraus et al. 2007). SAGs are observed sea surface temperature and depth grounds and southern calving grounds year round, both in the northeast ranges are essential features for the is comprised disproportionately of feeding areas as well as in the southeast conservation of the species because they reproductively mature females, pregnant calving grounds. SAGS are usually facilitate successful calving, which is females, juveniles, and young calves observed opportunistically during essential to the conservation of (Ward- Geiger et al. 2005; Fujiwara and directed survey efforts as well as other endangered North Atlantic right whales. Caswell 2001; Kraus et al. 1986, as cited random sightings. Further illustrated by the modeling by Firestone et al. 2008). For logistical Between 2002 and 2008, aerial results reported by Garrison (2007), reasons, survey efforts have also been surveys identified half the North Keller et al. (2012), and Good (2008) is disproportionally focused in the Atlantic population in the central Gulf that the features of sea surface nearshore area (within 30 nm of shore). of Maine between November and roughness, sea surface temperatures, During migratory periods it is difficult January (Cole et al. 2013). Right whale and water depth are present in the SAB to locate and sample marine mammals presence in the central Gulf of Maine during calving season over large, systematically or to observe them during the estimated conception period contiguous areas of ocean waters (at opportunistically, because they surface strongly suggests that this region is a least 231 nm2), which is the core use less frequently and cover large distances mating ground for the species. However, in any given day during migration (Hiby there has not been any systematic area of a mother/calf pair in any given and Hammond 1989; Morreale et al. evaluation of the particular physical or season. As such, mother-calf-pairs can 1996; Mate et al. 1997; Knowlton et al. biological features that facilitate or are move throughout the SAB to select 2002, as cited by Firestone et al. 2008). necessary for breeding and reproduction dynamic, optimal combinations of some The space used by right whales during to occur. Therefore, it is also not or all of these features depending on their migrations remains almost entirely possible to identify physical or factors such as the weather and the age unknown (Schick et al. 2009). Defining biological features related to breeding of the calves. The ability of mother-calf a particular migratory corridor is further and reproduction that are essential to pairs to move throughout the SAB to use complicated by the fact that the the conservation of the species. these features also contributes to growth available data are largely spatially Specific Areas Within the Geographical and fitness of young calves. At the end constrained to nearshore areas (i.e., 30 Area Occupied by the Species of the calving season, these calves that nm of shore), and consist of are only a few months old must be opportunistic sightings. Based on the The definition of critical habitat strong enough to complete the lengthy low numbers of whales observed further instructs us to identify specific trip back to the northern feeding migrating close to shore between areas on which are found the physical grounds. It is believed the swimming foraging and calving habitats, it is or biological features essential to the abilities of young calves is strengthened apparent that not all right whales species’ conservation. Our regulations by mother-calf pairs looping many miles migrate within 30 nm of shore. A study state that critical habitat will be defined up and down the coast in the calving by Schick et al. (2009), who tracked the by specific limits using reference points area (S. Kraus, New England Aquarium, movements of two tagged female right and lines on standard topographic maps pers. comm. to S. Heberling, NMFS, whales, also suggests that movement of of the area, and referencing each area by June 25, 2010). Such transit of mother- right whales are much broader and more the State, county, or other local calf pairs is evidenced by one tracking variable than suggested by results based governmental unit in which it is located study in which a tagged right whale solely on opportunistic sightings from (50 CFR 424.12(c)). Our regulations also with a young calf covered as much as 30 surveys limited to nearshore areas (see state that when several habitats, each NM in one 24-hour period (Slay et al. Schick et al. (2009)). satisfying requirements for designation 2002) and by annual tracking data of Beyond the uncertainty over the as critical habitat, are located in mother-calf pairs (Right Whale location of one or more migratory proximity to one another, an inclusive Consortium 2010). Therefore, calf corridors, we cannot currently identify area may be designated as critical survival is facilitated by the presence of any specific physical or biological habitat (50 CFR 424.12(d)). We the features over large, contiguous areas features that define migratory habitat. identified two ‘‘specific areas’’ within of the SAB such that mother-calf pairs Therefore, we have concluded that it the geographical area occupied by the can move throughout the SAB to select is not currently possible to define species, at the time of listing, that dynamic, optimal combinations of some critical habitat associated with right contain the essential features for right or all of these features, which are whale migratory behaviors. The draft whale foraging and calving habitat. The

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following paragraphs describe the Marx 1990, Baumgartner and Mate Cape Cod Bay (January–April), Great methods we used to determine the 2003). Basin-scale zooplankton South Channel (April–June), western boundaries for each specific area. monitoring schemes have proved Gulf of Maine (April–May and July– ineffective in detecting the high October), northern edge of Georges Bank (1) Specific Areas on Which Are Found concentrations usually present in the (May–July), Jordan Basin (August– the Physical and Biological Features of vicinity of actively feeding whales. October), and Wilkinson Basin (April– Foraging Habitat (Unit 1) Furthermore, using direct copepod July). Analyses show that each of these All of the identified essential features sampling efforts to identify where dense areas has a defined pattern of repeated are present within Unit 1 (Figure 1). The aggregations occur is also confounded DAM events and thus whale feeding physical oceanographic conditions, late by the fact that sufficient data are not events, particularly in the past decade stage C. finmarchicus aggregations, and available to establish a specific when more observations are available aggregations of diapausing C. threshold density of C. finmarchicus due to increased survey coverage, and/ finmarchicus that have been identified that triggers feeding. For these reasons, or are the source areas that supply the as essential features are dynamically the specific area on which are found copepod prey to foraging areas (Pace distributed throughout this specific dense aggregations of late stage C. and Merrick 2008). area. The specific area includes the large finmarchicus cannot be defined by Cape Cod Bay exhibits high densities embayments of Cape Cod Bay and relying on data from such efforts to of copepods during winter, spring, and, Massachusetts Bay and deep underwater sample copepod aggregations directly possibly fall, as evidenced by the large basins. The area incorporates state throughout the vast Gulf of Maine and numbers of feeding right whales. Of the waters from Maine through Georges Bank region. 17,257 right whale sightings in New Massachusetts as well as federal waters, Though the means by which right England during 1970 through 2005, but does not include inshore areas, bays, whales locate and exploit food resources 7,498 were in Cape Cod Bay. A total of harbors, and inlets. is not well understood, the presence of 543 pseudo-DAM events occurred in While C. finmarchicus are found foraging right whales is a reasonable this area, most during January–April. throughout the Gulf of Maine, some proxy for determining where critical The Great South Channel has high regions within the Gulf of Maine show food densities are located (Kenney et al. copepod concentrations at depth, more seasonal variation in abundance 1995, Baumgartner et al. 2003b). The especially during March–July, as and age group distribution than others. protocol for determining the whale evidenced by the large numbers of Based on 10 years of data collected density and residency indicative of feeding right whales, owing to through the MARMAP program, Meise feeding behavior was developed by bathymetric features and water and O’Reilly (1996) found the total C. Clapham and Pace (2001) for the circulation patterns. A total of 5,753 finmarchicus abundance peaked in early Dynamic Area Management (DAM) right whales were sighted in the area spring (March–April) on the Mixed program. The DAM protocol identifies a during 1970–2005; this included 344 Georges Bank, Tidal Front Georges Bank sighting of >3 right whales close enough pseudo-DAM events. Most right whale and Mass Bay, and in late summer to each other to produce a density of sightings occurred during April–June, (July–August) in the Northern Gulf of 0.04 right whales/nm2 as the minimum but also in July in some years. Right Maine and Scotian-Coastal Gulf of number and density of right whales that whale use of the Great South Channel Maine. C. finmarchicus abundance reliably indicates the presence of area is not nearly as uniform as in Cape peaked in the remaining areas of the foraging whales. The DAM protocol was Cod Bay, but is widespread enough to Gulf of Maine during May through June. used retrospectively using sighting indicate that the Channel is a critical A sharp decrease in overall copepod histories from 1970–2005. Pace and foraging area in almost every year. abundance was found by Meise and Merrick (2008) identified 7,761 The Western Gulf of Maine possesses O’Reilly (1996) in the months of July sightings events representing 15,395 a complex set of bathymetric features through October. During this time whales over the time period. The DAM which markedly affect the spatial/ period, copepod abundance decreased protocol was then applied to calculate temporal concentration of copepods in all areas except for waters 50–300 m the circular core sightings area and, as among years. From 1970 through 2005, located over Jordan and Wilkinson necessary, circular zones joined. This 1,749 right whale sightings (including Basins in the Gulf of Maine and the provided 1,292 unique ‘‘pseudo-DAM’’ 153 pseudo-DAM events) occurred in 200–500 m slope water seaward of events that were subsequently mapped this area, mostly during April–May and Georges Bank. In these areas, densities using ARCView GIS software (a July–October. of stage C5 C. finmarchicus exceeded ‘‘pseudo-DAM’’ event is an aggregation The northern edge of Georges Bank densities of other life stages. of foraging right whales identified in has high copepod densities at depth, Additionally, overall abundance this retrospective analysis that met the especially during May–July, as throughout the entire Gulf of Maine definition of foraging right whales and evidenced by the large numbers of increased ten-fold from January through would have met the DAM trigger if the feeding right whales, emanating from April when diapausing C. finmarchicus protocol had been in place at the time). physical features (e.g., currents and migrate to the surface to molt, spawn, The analyses of right whale sightings upwelling) which concentrate late-stage and are advected to the rest of the Gulf data in U.S. Northwest Atlantic waters copepods during spring and summer. of Maine via depth-associated increased indicate that foraging habitat is Foraging right whales in this area are flow and transport (Meise and O’Reilly expansive and that C. finmarchicus is thought to be following an eastward 1996). ubiquitous in the Gulf of Maine and progression of dense copepod patch While the seasonal distributions and Georges Bank region. development, which begins in late general patterns of abundance of C. Seasonal movement patterns of right spring and early summer. A total of 32 finmarchicus within the Gulf of Maine whales and the available literature on pseudo-DAM events have occurred in and Cape Cod Bay have been the distribution, abundance, and this area. Recent surveys have documented, the geographic scales and population dynamics of calanoid documented that Jordan and Wilkinson depths where copepods are sampled copepods, indicate that several areas are Basins are also important feeding areas. only rarely match the fine-scale at important for right whale foraging in the Wilkinson Basin serves as a foraging which right whales forage (Mayo and Gulf of Maine/Georges Bank region: area for right whales in spring. The

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limited survey sightings effort in seldom reported in the small bays and waters. However, right whales have not Wilkinson Basin during 1970–2005 harbors along the inside edge of Cape been observed in Block Island Sound in documented 1,058 individual right Cod, with the exception of subsequent years and a pattern of whales during this period, including Provincetown Harbor where foraging repeated annual observations is not 104 pseudo-DAM events. Surveys have right whales have been observed. Due to evident in these areas. repeatedly found concentrations of right the absence or rarity of foraging right The large area depicted in Figure 1 whales in this area during April-July. whales in inshore areas, bays, harbors Right whale surveys conducted in and inlets, we conclude that the encompasses all of the physical Jordan Basin during the winter of 2004– essential feature of dense aggregations of oceanographic conditions and structures 2005 (perhaps the first winter surveys late-stage C. finmarchicus is not present of the Gulf of Maine and Georges Bank ever in this Basin) sighted up to 24 in the areas shoreward of the boundaries region, namely prevailing currents and foraging right whales at a time (NMFS delineated in Table 1a and Table 1b. circulation patterns, bathymetric unpubl. data). The limited survey efforts Lastly, we considered right whale features (basins, banks, and channels), in the area during 1970–2005 recorded sightings (and pseudo-DAM events) that oceanic fronts, density gradients, and a total 21 pseudo-DAM events. The have occurred to the south and east of temperature regimes that combine to available data suggest that Jordan Basin the area described previously. distribute and aggregate C. finmarchicus is an important right whale foraging Typically, whales are sighted in these for right whale foraging in that region. area, at least during August–October. areas in one year, but are not seen again The essential physical feature of the As part of our analysis of areas on for a number of years and evaluation of Gulf of Maine-Georges Bank region which are found the essential foraging data across time series do not important to supporting these features, we considered an analysis of demonstrate any predictable repeated aggregations is low flow velocity right whale sightings data along the east presence of whales. As a result, we environments that allow the neutrally coast (70 FR 35849, June 25, 2005, conclude those areas do not provide buoyant, high lipid content copepods to NMFS 2007, 72 FR 57104, October 5, predictable foraging habitat which is passively aggregate below the 2007). This analysis indicates that evident in the Gulf of Maine-Georges convective mixed layer and be retained endangered large whales rarely venture Bank region. Most likely, sightings in into bays, harbors, or inlets. Based on these areas consist of whales that feed for a period of time. As discussed this analysis, NMFS (2007) concluded opportunistically while migrating to the previously, these low flow that it is unlikely that right whales Gulf of Maine. This includes the large environments are present in the three spend substantial amounts of time in number of feeding right whales sighted deep basins—Wilkinson, Jordan and the coastal waters of Maine, particularly in Block Island Sound in April 2010 and Georges Basins—within the Gulf of inshore areas such as bays, harbors, or the smaller aggregation observed 2011. Maine, with boundaries approximated inlets (70 FR 35849, June 25, 2005, The sightings off Rhode Island by the 200 m isopleths. Therefore, these NMFS 2007, 72 FR 57104, October 5, represents the largest group of right basins contain the essential features for 2007). Similarly, right whales are whales ever documented in those right whale foraging habitat.

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North Atlantic Right Whale Critical Habitat Proposed Northeastern U.S. Foraging Area Unit 1

Figure 1: Specific area on which are found the essential features ofNorth Atlantic right whale foraging habitat

Consistent with our regulations (50 ‘‘specific area’’ within the geographical of listing, that contains the identified CFR 424.12(c)), we have identified one area occupied by the species at the time physical and biological features of

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foraging habitat that are essential to the distributions throughout the South annual effects, sea surface temperature, conservation of North Atlantic right Atlantic Bight in that they vary over and water depth, but not sea state whales. This area encompasses a large both time and space, and their (roughness) or wind conditions and area within the Gulf of Maine and variations do not necessarily correlate right whale mother-calf distribution, we Georges Bank region, including the large with each other. Calving right whales also considered the results by Good embayments of Cape Cod Bay and therefore likely select areas containing (2008) that predicted potential right Massachusetts Bay and deep underwater varying combinations of the preferred whale calving habitat based on sea state basins. This area also incorporates state ranges of the essential features available roughness as well as sea surface waters, except for inshore areas, bays, within the SAB, as identified temperature and water depth. Good harbors, and inlets, from Maine through previously, depending on factors such (2008) calculated the relative density of Massachusetts in addition to federal as the weather (e.g., storms, prevailing calf sightings at a 5 km x 5 km sampling waters. winds) and the age of the calves (e.g., unit and measured the habitat The specific area on which are found neonate or more mature calf). conditions where right whale mother- the physical and biological features In order to identify specific areas that calf pairs were sighted. These calculated essential to foraging and thus to the may contain the essential features, we habitat values (sea surface temperature, conservation of the North Atlantic right used analyses based on two predictive sea surface roughness, and water depth) whale include all waters, seaward of the habitat models (Garrison (2007) and were used to derive a ‘‘likelihood boundary depicted in Figure 1 (for Keller et al. (2012), and Good et al surface’’ of calving habitat to predict actual coordinates see below). The (2008). These models help identify areas potential habitat for each month of the boundary of the proposed critical within the SAB where the essential calving season and for all months habitat for Unit 1 is delineated generally features are likely to be present combined. This combined model by a line connecting the geographic throughout the calving season. provided a measure of temporal coordinates and landmarks as follows: The Garrison (2007) and Keller et al. continuity by delineating the number of From the southern tip of Monomoy (2012) models base the spatial extent of months (December through March) a ° ′ Island (Cape Cod) (41 38.39 N, potential calving habitat on average given area was selected as potential ° ′ 69 57.32 W) extending southeasterly to environmental conditions at a 4 km x 4 calving habitat. This combined model is 40°50′ N, 69°12′ W (the Great South km sampling unit and the resulting use ° ′ ° ′ the best representation of potential Channel); then east to 40 50 N 68 50 of these areas by calving right whales. calving habitat both in time and space W. From this point, the proposed These models also reflect the processes (Good 2008). Overall, the Good (2008) boundary extends northeasterly observed in the Florida-Georgia region model predicted the presence of direction to 42°00′ N, 67°55′ W and then only. From the mean water temperatures ° ′ potential right whale calving habitat in an easterly direction to 42 00 N between December and March in this extending within 40 to 50 km of shore ° ′ region, the models predict calving 67 30 W. From this point, the proposed from Cape Lookout, North Carolina habitat for right whales in waters boundary extends northeast along the south to approximately New Smyrna, typically between 10 and 50 km from northern edge of Georges Bank to the Florida. Areas predicted by the model to shore extending from New Smyrna intersection of the U.S.-Canada be potential right whale calving habitat ° ′ Beach, Florida north to Cape Fear, North maritime boundary at 42 10 N, in three or more months accounted for ° ′ Carolina. The optimal temperature range 67 09.38 W. The proposed boundary 85 percent or more of all observed right within the 75th percentile of predicted then follows the U.S.-Canada maritime whale mother-calf sightings. Finally, as boundary north to the intersection of sighting rates for calving right whales illustrated by the results of both habitat 44°49.727′ N, 66°57.952′ W. From this occurs throughout much of the spatial predictive models and the movements point, moving southwest along the coast range. Over the course of the entire of cow-calf pairs during their time on of Maine, the specific area is located calving season (December through the calving grounds, the features of sea seaward of the Maine exemption line March) the preferred water depth (6 to surface roughness, sea surface developed for the Atlantic Large Whale 28 m) and sea surface temperature (7 to temperatures, and water depth in the Take Reduction Plan to the point 17 °C) ranges for calving right whales preferred ranges used by right whales (43°02.55′ N, 70°43.33′ W) on the coast correspond with predicted sighting rates are present in the SAB during calving of New Hampshire south of Portsmouth, of calving right whales in the 75th percentile, which accounts for 91 season over large, contiguous areas (at NH. The boundary of the proposed area 2 then follows the coastline southward percent of all observed calving right least 231 nmi of ocean area). along the coasts of New Hampshire and whales. The area containing the 75th To determine the boundaries of the Massachusetts along Cape Cod to percentile of predicted sighting rates for specific area containing the essential Provincetown southward along the calving right whales extends from features identified for North Atlantic eastern edge of Cape Cod to the approximately Daytona Beach, Florida right whale calving, we overlaid two southern tip of Monomoy Island. As north to just beyond the Georgia/South ArcGIS shape files generated by the noted, the specific area includes the Carolina state border. The geographic habitat models as follows: 1) The 75th large embayments of Cape Cod Bay and area included in the 75th percentile of percentile reported by Garrison (2007) Massachusetts Bay but does not include predicted sighting rates encompasses and Keller et al. (2012), and 2) Good’s inshore areas, bays, harbors and inlets. seasonal and annual variability of the (2008) habitat area selected by at least In addition, the specific area does not distribution of the essential features, three of the monthly models. Given that include waters landward of the 72 particularly sea surface temperatures as the 75th percentile from Garrison (2007) COLREGS lines (33 CFR part 80) as evaluated by Garrison (2007) and Keller and Keller et al. (2012) and Good’s described below. et al. (2012), and provides the broadest (2008) habitat area selected by at least availability of contiguous areas of three of the monthly models account for (2) Specific Areas on Which Are Found dynamic combinations of the essential 91 and 85 percent of all observed right the Physical Features of Calving Habitat features for selection by calving right whale mother-calf pair sightings, (Unit 2) whales. respectively, and Good’s (2008) The essential features of right whale Because the models used by Garrison combined (four month) model is the calving habitat are dynamic in their (2007) and Keller et al. (2012) selected best representation of potential calving

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habitat both in time and space, we southward to 29° N latitude listing, that contains the essential believe these predicted habitat areas are (approximately 43 miles north of Cape features for calving right whales in the the best basis for determining right Canaveral, Florida) within the area southeastern U.S. (Figure 2). This area whale calving habitat in the bounded on the west by the shoreline comprises waters of Brunswick County, southeastern U.S. and the 72 COLREGS lines, and on the North Carolina; Horry, Georgetown, Based on the information from these east by rhumb lines connecting the Charleston, Colleton, Beaufort, and models and other information specific points described below. Jasper Counties, South Carolina; previously described, which we Based on the prior discussion and Chatham, Bryan, Liberty, McIntosh, consider to be the best available consistent with our regulations (50 CFR Glynn, and Camden Counties, Georgia; information, the southeast right whale 424.12(d)), we identified one ‘‘specific and Nassau, Duval, St. John’s, Flagler, calving area consists of all marine area’’ within the geographical area waters from Cape Fear, North Carolina, occupied by the species, at the time of and Volusia Counties, Florida.

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North Atlantic Right Whale Critical Habitat Southeastern U.S. Calving Area Unit2

34"N

SOUTH CAROLINA

33"N

GEORGIA 32'N

Atlantic Ocean

31'N

30'N

fLORIDA 35 70 140 210 280 Kilomelers Miles 100 150 200

Cape Canaveral 79'W

Critical Habitat

This map Is provided for Illustrative nm·nn·~ ..,. of North Atlantic right whale critical habitat. For the precise legal definition refer to the narrative tles:crit~tion.

Figure 2. Area considered for designation as North Atlantic right whale southeastern calving critical habitat.

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Special Management Considerations or the Norwegian Directorate of Fisheries cumulative impacts of all sewage Protection awarded Calanus AS a renewed and outfalls may pose the need for Specific areas within the geographical expanded license to harvest C. management considerations or finmarchicus in the Norwegian protection for C. finmarchius. area occupied by a species may be ® designated as critical habitat only if they Economic Zone (Calanus 2008a). In Monitoring results from the Boston outfall in Massachusetts Bay support contain physical or biological features April 2008, the company also entered into a contract with Skretting, the this concern. In 2000, the Massachusetts that ‘‘may require special management world’s largest salmon and trout Water Resource Authority (MWRA) considerations or protection.’’ To meet aquaculture feed production firm, for implemented a new ocean outfall the definition of critical habitat, it is not research and development and system 15.2 miles offshore in necessary that the features currently subsequent distribution of the Calanus®- Massachusetts Bay, as part of a Boston require special management derived sea lice deterrent (Calanus® Harbor Cleanup program. This new considerations or protection, only that 2008b). Calanus AS is also currently system relocated an estimated 350 they may require special management engaged in the development of other million gallons of treated effluent per considerations or protections. NMFS’ uses for C. finmarchicus in aquarium day from Boston Harbor to the regulations define ‘‘special management feed, health and nutritional products, hydrodynamic system of Massachusetts considerations or protections’’ to mean dietary supplements, flavoring and Cape Cod Bays (PCCS 2005, ‘‘any methods or procedures useful in ingredients, bioactive compounds for Bothner and Butman 2007). protecting physical and biological cosmetics, and pharmaceuticals In 2002, Provincetown Center for features of the environment for the (Calanus® 2009.) Coastal Studies (PCCS) documented a conservation of listed species’’ (50 CFR Several analyses predict the demand ‘‘shift from the predominant winter- 424.02(j)). As noted previously, NMFS for krill will increase, including spring zooplankton resources, C. produced a Draft Biological Source increased future demands for finmarchicus, to the estuarine copepod Document (NMFS 2014a) that discusses pharmaceutical and aquaculture Acartia spp.’’ as well as a significant our application of the ESA’s definition products derived from copepods (Nicol increase in nuisance algae, Phaeocystis of critical habitat for right whales in and Endo (1997), Payne et al. 2001, pouchetti, in Cape Cod Bay (PCCS detail, including evaluation of whether Suontama 2004). As harvesting 2003). PCCS (2005) noted that ‘‘further proposed essential features ‘‘may technology for C. finmarchicus becomes work may be required to fully assess require special management more efficient, demands for C. cumulative or long-term impacts to considerations or protections.’’ The finmarchicus products may increase to plankton and higher trophic levels following discussion is derived from the point where zooplankton fishing is within this dynamic system.’’ that document. economically feasible (Nicol and Endo The MWRA monitoring program (1) Essential Features of Foraging 1997, Suontama 2004, Piasecki et al. further noted that though the structure Habitat 2004). of the zooplankton community in 2005 The essential biological features of was similar to many earlier years, there As summarized in the following foraging habitat in the Gulf of Maine was a measurable decrease in total sections, the essential features of right and Georges Bank region may be zooplankton abundance during 2001 whale foraging habitat may require negatively affected if worldwide through 2005 compared to the baseline special management considerations or demand for C. finmarchicus products period. Overall lower abundance during protections because of possible negative continues to rise. Therefore, the the late spring and early summer and impacts from the following activities essential biological features—late stage during the fall was observed across and events: (1) Zooplankton fisheries; C. finmarchicus copepods in dense Massachusetts Bay, but not in the (2) effluent discharge from municipal aggregations and diapausing C. shallower waters of Boston Harbor or outfalls; (3) discharges and spills of finmarchicus aggregations in Jordan, Cape Cod Bay (Werme and Hunt 2006). petroleum products to the marine Wilkinson, and Georges Basins in the These observations support the environment as a result of oil and gas Gulf of Maine and Georges Bank hypothesis that with increased nutrient exploration, development and region—may require special input and increased primary transportation; and (4) climate change. management considerations or productivity, Massachusetts Bay plankton communities could shift to Zooplankton Fisheries protections. being dominated by Acartia and other The essential foraging habitat features Sewage Outfalls inshore copepods, therefore displacing that may be affected by zooplankton Several municipalities from Maine to the high concentrations of offshore fisheries are late stage C. finmarchicus Massachusetts have waste discharge copepods such as C. finmarchicus from copepods in dense aggregations and facilities that empty into the Gulf of these areas during seasons when they diapausing C. finmarchicus aggregations Maine. These discharges as well as are normally present and serve as a food in Jordan, Wilkinson, and Georges coastal runoff result in increased source for right whales (Werme and Basins in the Gulf of Maine and Georges nutrient inputs to the ocean. Increased Hunt 2006). In addition, increased Bank region. nutrient input in the Gulf of Maine nutrient input to offshore areas, While directed zooplankton fisheries region may result in changes to the ‘‘particularly nitrogen, could over- have primarily focused efforts on the overall phytoplankton community stimulate algal blooms, which would be larger krill species, with the most structure and enhance nuisance and/or followed by low levels of dissolved significant harvests taking place in less desirable forage species. These oxygen in the bottom waters when the Antarctica (targeting Euphasia superba) changes may result in changes in phytoplankton die, sink, and and in the Pacific (targeting Euphasia productivity and/or changes in the decompose,’’ thereby providing habitat pacifica), copepod fisheries have also distribution and densities of C. unsuitable for C. finmarchicus (Werme been permitted, attempted or researched finmarchicus populations. and Hunt 2006). We conclude that the by Canadian and Norwegian interests in While a single outfall facility may not essential features of late-stage C. North Atlantic waters beginning in the have a significant impact on the entire finmarchicus in dense aggregations in 1990s(NMFS 2014a). In January 2008, Gulf of Maine ecosystem, the that region, as well as diapausing C.

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finmarchicus in Jordan, Wilkinson, and marine organisms, including C. determined by climate. The distribution Georges Basins, may require special finmarchicus, can be especially of marine species in U.S. waters is management considerations or vulnerable to hydrocarbon exposure. moving northward, and the timing of protection due to outfall effluents and Recruitment failure in chronically plankton blooms is shifting (Karl et al. other sources of nutrients entering the contaminated habitats may be related to 2009). The potential effects of global Gulf of Maine and Georges Bank region. direct toxic effects of hydrocarbon climate change also include shifts in contaminated sediments (Krebs and productivity, biomass, and species Oil and Gas Exploration and Burns 1977, Cabioch et al. 1980, composition of zooplankton, including Development Sanders et al. 1980, Elmgren et al. C. finmarchicus, which could negatively Currently, there is no oil or natural 1983). A major oil spill could have the impact the foraging success of right gas exploration or development activity potential to engulf dense concentrations whales. Inter-annual, decadal, and in the Gulf of Maine and Georges Bank of copepods, resulting in smothering longer time-scale variability in climate area. Since 1980, all of the area has been and asphyxiation of any organisms can alter the distribution and biomass of under a moratorium on such natural coated with oil (NAS 1975). Early life prey available to right whales. For resource development. A leasing history stages such as eggs and larvae example, decade-scale climatic regime moratorium has also been in effect on may be particularly susceptible to both shifts have been related to changes in the Canadian portion of Georges Bank acute and chronic effects of oil exposure zooplankton in the North Atlantic since 1988. The Nova Scotian and because even small releases can kill or (Fromentin and Planque 1996). Decadal Canadian governments extended the damage organisms (NRC 2003). trends in the North Atlantic Oscillation moratorium on exploration of eastern As discussed in the Biological Source (Hurrell 1995) can affect the position of Georges Bank through 2015, matching Document (NMFS 2014a), both acute the Gulf Stream (Taylor et al. 1998) and the adjoining U.S. moratorium. Outside and chronic exposure to oil pollution other circulation patterns in the North the area under the moratorium, oil and could result in changes to the species Atlantic that may influence the gas exploration and production has composition of phytoplankton oceanographic conditions responsible proceeded in Canadian waters offshore communities. It is conceivable that for distributing, aggregating and of Nova Scotia. species replacing one another due to retaining C. finmarchicus. There is reason to believe that oil or differential sensitivities to oil exposure The predicted range of increase in natural gas exploration and could result in shifts in phytoplankton water temperatures, combined with development may occur at some point community structure. Such shifts may other factors such as increased in the future in the specific area then negatively affect the abundance, precipitation and runoff, may alter proposed for designation as critical availability, and density of aggregations seasonal stratification in the northeast foraging habitat for right whales. There of late-stage C. finmarchicus on which coastal waters. Increased stratification of is economic interest in opening up new right whales feed. These shifts also may the water column in the Gulf of Maine domestic sources for oil and gas, negatively affect the abundance of region could affect copepod abundance including OCS lands within the specific diapausing C. finmarchicus, which and densities by limiting or preventing area proposed for designation as critical serve as source populations for late- the exchange of surface and nutrient foraging habitat for right whales. In stage C. finmarchicus. We conclude that rich deep water. Increased stratification addition, emerging deep water drilling the essential features of late-stage C. could affect primary and secondary technologies now provide the potential finmarchicus in dense aggregations in productivity by altering the composition to explore deep water basins and other that region, as well as diapausing C. of phytoplankton and zooplankton areas within the Gulf of Maine and finmarchicus in Jordan, Wilkinson, and (Mountain 2002). This in turn may Georges Bank region. Georges Basins, may require special negatively impact the abundance and Activities associated with offshore oil management considerations or distribution of C. finmarchicus patches and gas exploration, development, and protection due to impacts associated that support right whale foraging and production include drilling, extraction, with oil and gas exploration and energetic requirements. and transportation. Oil spills and development as well as oil spills and Diapausing C. finmarchicus discharges are associated with all of discharges entering the Gulf of Maine populations could also be impacted by these activities. Very low concentrations and Georges Bank region. predicted climate change-induced (from less than 1mg/l to 1 mg/l) of oil changes to the physical oceanographic and petroleum hydrocarbons have been Global Climate Change conditions that create the low-energy found to have harmful effects on various The projected effects of global climate environments present within deep marine organisms in laboratory tests change include a variety of potential ocean basins. The low-flow velocity (Jacobson and Boylan 1973, Johnson impacts based on a variety of environments of the deep basins where 1977, Steele 1977, Kuhnhold et al. 1978, greenhouse gas emissions scenarios, aggregations of diapausing copepods are Howarth 1987). Sublethal effects from including: Increased average global found allow the neutrally buoyant, high hydrocarbon exposure can occur at surface air temperatures; sea level rise, lipid content copepods to passively concentrations several orders of increased global precipitation; and aggregate below the convective mixed magnitude lower than concentrations increased atmospheric carbon dioxide layer and be retained for a period of that induce acute toxic effects concentrations and ocean acidification time (Lynch et al. 1998, Visser and (Vandermeulen and Capuzzo 1983). (IPCC 20142007). Jo´nasdo´ttir 1999, Baumgartner et al. Impairment of feeding mechanisms, As discussed in detail in the 2003, Pace and Merrick 2008). Changes growth rates, development rates, Biological Source Document (NMFS to the physical oceanographic features energetics, reproductive output, 2014a), there are a number of ways that in the Gulf of Maine region, such as recruitment rates and increased global climate change may affect the potential increased stratification of the susceptibility to disease are some biological and physical features of water column, may negatively impact examples of the types of sublethal foraging habitat essential to the the retention and subsequent emergence effects that may occur with exposure to conservation of the North Atlantic right and distribution of diapausing copepod petroleum hydrocarbons (Capuzzo whale. The distribution of marine fish source populations in deep ocean 1987). Early developmental stages of and plankton are predominantly basins.

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Given these expected negative transmission lines (DOE 2009). If the the availability of the essential features. impacts to the essential features for density of structures, lines, and cables Large scale aquaculture facilities could foraging, NMFS concludes these associated with a facility is sufficiently force whales to abandon these areas features may require special great and spacing is close, cables could (Young 2001) by acting as a barrier, or management considerations or have a ‘‘wall effect’’ that could force limiting the whales’ ability to move protections due to climate change. whales around, or preclude them from about, and find and use the optimal using the areas (Boehlert et al. 2008). combinations of essential features (2) Essential Features of Calving Habitat Therefore, these facilities may limit necessary for successful calving and As summarized in the following the availability of the essential features rearing. Installation and operation of sections, the essential features of right such that right whales are not able to these facilities may also fragment the whale calving habitat may require move about, find and use the optimal large contiguous areas containing special management considerations or combinations of the features necessary optimal combinations of the essential protections because of possible negative for successful calving and rearing. These features needed for calving and rearing. impacts from the following activities are negative impacts on what makes These are negative impacts on what and events: Offshore energy these features essential to the makes these features essential to the development, large-scale offshore conservation of the species. Therefore, conservation of the species. Therefore, aquaculture operations, and global we conclude the essential features for we conclude the essential features for climate change. These activities and right whale calving habitat may require right whale calving habitat may require their potential broad-scale impacts on special management considerations or special management considerations or the essential features are discussed in protections. protections. detail in the Biological Source Document (NMFS 2014a) Large-Scale Offshore Aquaculture Global Climate Change Operations Global climate change and its Offshore Energy Development Approximately 20 percent of U.S. potential effects on the environment is There is growing interest in aquaculture production is based on a very complex issue. Several of the diversifying domestic energy sources, marine species (NOAA 2010), and there projected future effects of global climate including offshore oil and gas is growing interest in expanding change are discussed previously. exploration and production (including aquaculture operations to offset the In the specific area identified as liquid natural gas (LNG) terminals), increasing demand for seafood (NOAA potential right whale calving critical exploration and development of 2007). Recent advances in offshore habitat, sea surface temperatures are techniques for mining mineral deposits aquaculture technology have resulted in influenced by the ‘‘Atlantic Multi- from the continental shelf, and several commercial finfish and shellfish decadal Oscillation,’’ or AMO. The development and production of offshore operations in more exposed, open-ocean essential feature of sea surface energy alternatives in the Atlantic (e.g., locations (e.g., Hawaii, California) temperature may be negatively impacted wind farms, wave energy conversion) (NOAA 2010). NOAA’s 10-year plan by global climate change, depending on (e.g., see DOE 2008, DOE 2009). (2007) includes establishing new the degree to which the influence of the Installation and operation of offshore offshore farms in the U.S. Exclusive AMO is reduced. The AMO is an energy development facilities are not Economic Zone (EEZ) for finfish, ongoing series of long-duration changes likely to negatively impact the preferred shellfish, and algae. in the sea surface temperature of the ranges of sea surface roughness, sea Large-scale aquaculture operations North Atlantic Ocean, with cool and surface temperatures, or water depths, involve numerous floating or submerged warm phases that may last for periods in that it will not result in lowering or structures and mooring lines, and of 20 to 40 years and result in a raising the available value ranges for associated activities and noise. Offshore difference of about 1 °F between these features. However, installation aquaculture operations utilize large net- extremes (NOAA AOML 2010). The and operation of these technologies may pens (e.g., 3000 m3 capacity) that are AMO also influences the frequency of fragment the large, contiguous areas partially or fully submerged below the hurricanes that originate in the Atlantic containing the optimum ranges of all the sea surface, and are typically anchored Warm Pool (AWP), with fewer major essential features that are necessary for to the sea floor. Partially submerged net- hurricanes and hurricanes making right whale calving and rearing (NMFS pens typically employ a floating collar landfall during AMO cool phases. 2014a). that is flexible or strong enough to However, over the next generation, Availability of the essential features withstand rough sea conditions and global climate change is projected to be may be limited by large arrays or fields from which the containment net is hung nonlinear, and it is likely that the AMO of permanent structures that may act as (NOAA 2008). Offshore aquaculture will have less influence over sea surface physical barriers and prevent or limit operations typically include temperature oscillations than the ability of right whale mothers and aggregations of several net pens and anthropogenic global climate change in calves to move about and find (‘‘select’’) associated structures. the North Atlantic (Enfield and Serrano the optimal combinations of the Installation and operation of large- 2009). Depending on the degree to essential features. The effective size of scale offshore aquaculture facilities are which the influence of the AMO is offshore energy facilities includes and is not likely to negatively impact the reduced, sea surface temperatures may increased by all of the associated preferred ranges of sea surface increase by 1 to 3 °C IPCC AR4 (2014). structures, lines and cables, and roughness, sea surface temperatures, or There is the potential that the preferred activities and noise. There are numerous water depths, in that it will not result temperature range (7 °C to 17 °C) floating, submerged, and emergent in lowering or raising the available identified for right whales may no structures, mooring lines, and value ranges for these features. longer be available within the specific transmission cables associated with However, like offshore energy area, or may become available only large ocean energy facilities (DOE 2009). development, the construction and within smaller areas co-occurring with Larger whales may have difficulty operation of large-scale offshore the preferred water depth and sea passing through an energy facility with aquaculture facilities within the specific surface conditions, thereby reducing the numerous, closely spaced mooring or calving area have the potential to limit area available to support the key

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conservation objective of facilitating areas as critical habitat for the North and costs, respectively). Impacts were successful calving. Atlantic right whale. evaluated in quantitative terms where feasible, but qualitative appraisals were Further, relaxation of the present rate Application of ESA Section 4(a)(3)(B)(i) used where that is more appropriate to of increase in hurricane activity may (Military Lands) never occur (Enfield and Serrano 2009), particular impacts. The Draft ESA potentially impacting seasonal sea state Section 4(a)(3)(B)(i) prohibits Section 4(b)(2) Report (NMFS 2014b) is conditions in the specific area by designating as critical habitat any lands available on NMFS’ Greater Atlantic increasing the frequency of major or other geographical areas owned or Region Web site at [www.greater hurricanes passing through the specific controlled by the Department of Defense atlantic.fisheries.noaa.gov]. area. The essential physical features for (DOD), or designated for its use, that are The primary impacts of a critical North Atlantic right whales on their subject to an integrated natural habitat designation result from the ESA calving grounds are calm sea surface resources management plan (INRMP), if section 7(a)(2) requirement that Federal conditions associated with Force 4 or we determine that such a plan provides agencies ensure their actions are not less on the Beaufort Scale. Neonate right a benefit to the species (16 U.S.C. likely to result in the destruction or whale calves are relatively weak 1533(a)(3)(B)). adverse modification of critical habitat, No areas within the specific areas swimmers and are more vulnerable to and that they consult with NMFS in being proposed for designation are changes from calm to rough sea state fulfilling this requirement. Determining covered by INRMPs; therefore, there are conditions. these impacts is complicated by the fact no military lands ineligible for that section 7(a)(2) also requires that We conclude global climate change designation as critical habitat within the Federal agencies ensure their actions are may result in negative impacts to the proposed areas of Unit 1 and Unit 2. not likely to jeopardize the species’ preferred ranges identified for the continued existence. One incremental essential features, and to the ability of Application of ESA Section 4(b)(2) impact of designation is the extent to these features to support successful The foregoing discussion described which Federal agencies modify their calving. Therefore, the essential features the specific areas within U.S. proposed actions to ensure they are not may require special management jurisdiction that fall within the ESA likely to destroy or adversely modify the considerations or protections to section 3(5) definition of critical habitat critical habitat beyond any preserve the ability of these features to in that they contain the physical and modifications they would make because provide for successful calving and biological features essential to the North of listing and the jeopardy requirement. rearing of North Atlantic right whales. Atlantic right whale’s conservation that When the same modification would be Unoccupied Areas may require special management required due to impacts to both the considerations or protection. Section species and critical habitat, the impact ESA section 3(5)(A)(ii) defines critical 4(b)(2) of the ESA requires that we of the designation is co-extensive with habitat to include specific areas outside consider the economic impact, impact the ESA listing of the species (i.e., the geographical area occupied if the on national security, and any other attributable to both the listing of the areas are determined by the Secretary to relevant impact, of designating any species and the designation critical be essential for the conservation of the particular area as critical habitat. habitat). To the extent possible, our species. Regulations at 50 CFR 424.12(e) Additionally, the Secretary has the analysis identified impacts that were specify that we shall designate as discretion to consider excluding any incremental to the proposed designation critical habitat areas outside the area from critical habitat if she of critical habitat—meaning those geographical area presently occupied by determines the benefits of exclusion impacts that are over and above impacts a species only when a designation (that is, avoiding some or all of the attributable to the species’ listing or any limited to its present range would be impacts that would result from other existing regulatory protections. inadequate to ensure the conservation of designation) outweigh the benefits of Relevant, existing regulatory protections the species. Our regulations at 50 CFR designation based upon the best (including the species’ listing) are 424.12(h) also state: ‘‘Critical habitat scientific and commercial data referred to as the ‘‘baseline’’ and are also shall not be designated within foreign available. The Secretary may not discussed in the Draft Section 4(b)(2) countries or in other areas outside of exclude an area from designation if Report. United States jurisdiction.’’ At the exclusion will result in the extinction of The Draft ESA Section 4(b)(2) Report present time, the geographical area the species. Because the authority to describes the projected future federal occupied by listed North Atlantic right exclude is discretionary, exclusion is activities that would trigger section 7 whales which is within the jurisdiction not required for any particular area consultation requirements because they of the United States is limited to waters under any circumstances. may affect the essential features, and off the U.S. east coast from Maine The following discussion of impacts consequently may result in economic through Florida, seaward to the summarizes the analysis contained in costs or negative impacts. Additionally, boundary of the U.S. Exclusive our Draft ESA Section 4(b)(2) Report the report describes broad categories of Economic Zone. As discussed (NMFS 2014b), which identifies the project modifications that may reduce previously, the Gulf of Mexico is not economic, national security, and other impacts to the essential features, and considered part of the geographical area relevant impacts that we projected states whether the modifications are occupied by the species, nor do we would result from including each of the likely to be solely a result of the critical consider it an unoccupied area essential two specific areas in the proposed habitat designation or co-extensive with to the species’ conservation given the critical habitat designation. We another regulation, including the ESA rare, errant use of the area by right considered these impacts when listing of the species. The report also whales in the past. We have not deciding whether to exercise our identifies the potential national security identified any other areas outside the discretion to propose excluding and other relevant impacts that may geographical area occupied by the particular areas from the designation. arise due to the proposed critical habitat species that are essential for their Both positive and negative impacts were designation, such as positive impacts conservation and therefore are not identified and considered (these terms that may arise from conservation of the proposing to designate any unoccupied are used interchangeably with benefits species and its habitat, state and local

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protections that may be triggered as a of these federal actions, Water Quality/ to adversely affect right whales. These result of designation, and education of NPDES related actions and oil spill activities are not likely to require the public to the importance of an area response activities implemented additional project modifications to for species conservation. respectively by the EPA and the USCG, address impacts to essential features could result in incremental impacts beyond those that may be required to Economic Impacts from section 7 consultations related to address impacts to the whales. Economic impacts of the critical the proposed critical habitat. Therefore we conclude that the only habitat designation result through Additionally, we identified four incremental costs resulting from implementation of section 7 of the ESA categories of activities that have not consultations for these activities are the in consultations with Federal agencies occurred in the proposed areas in the additional administrative costs to ensure their proposed actions are not past but based on available information associated with analysis of impacts to likely to destroy or adversely modify and discussions with action agencies, the essential features. critical habitat. These economic impacts may occur in the future. If they do Consultations resulting from activities may include both administrative and occur, these activities may adversely affecting the essential features include project modification costs; economic affect the essential features. These both administrative and project impacts that may be associated with the projected activities are: Oil and gas modification costs. Administrative costs conservation benefits of the designation exploration and development activities, include the cost of time spent in are described later. directed copepod fisheries, offshore meetings, preparing letters, and in some We examined the ESA section 7 alternative energy development cases, developing a biological consultation record over the last 10 activities, and marine aquaculture. As assessment and biological opinion, years, as compiled in our Public with past or ongoing federal activities in identifying and designing RPMs, and so Consultation Tracking System (PCTS) the proposed critical habitat areas, these forth. For this impacts report, we database, to identify the types of Federal four categories of projected future estimated per-project administrative activities that may adversely affect actions may trigger consultation because costs based on IeC 2013. That impacts North Atlantic right whale critical they have the potential to adversely report estimates administrative costs for habitat. We requested that federal action affect both the essential features and the different categories of consultations as agencies provide us with information on whales themselves. Three categories of follows: (1) New consultations resulting future consultations if we omitted any future activities were judged as being entirely from critical habitat future actions likely to affect the likely to have incremental impacts due designation; (2) new consultations proposed critical habitat. No new to the proposed critical habitat: Oil and considering only adverse modification activities were identified through this gas exploration and development (unoccupied habitat); (3) re-initiation of process. Of the types of past activities (Unit 1), directed copepod consultation to address adverse consultations that ‘‘may affect’’ some or fishery (Unit 1), and offshore alternative modification; and (4) additional all of the essential features in either unit or renewable energy activities (Unit 2). consultation effort to address adverse of proposed critical habitat, we Consequently, costs of project modification in a new consultation. determined that no activities would modifications required through section Given that all the consultations we solely affect the essential features. That 7 were considered to be incremental project to result from this proposed is, all categories of the activities impacts of the proposed designation. rulemaking will be co-extensive identified would also require In order to avoid underestimating consultations on new actions that would consultation for potential impacts to the impacts, we assumed that all projected be evaluating impacts to the whales as listed species. categories of future actions resulting in well as impacts to critical habitat, the Five categories of activities were incremental impacts to essential administrative costs would all be in identified as likely to recur in the future features will require formal category 4 above. and have the potential to affect the consultations, in order to estimate both As previously mentioned, we essential features: administrative and project modification assumed that all future activities that 1. Environmental Protection Agency costs. This assumption likely results in may affect the proposed essential (EPA) Clean Water Act permitting or an overestimation of the number of features will require formal management of pollution discharges future formal consultations. consultations. Based on IeC 2013, we through the NPDES programs in Unit 1; Of the ongoing or current activities project that each formal consultation 2. United States Coast Guard (USCG) expected to recur in Unit 1, EPA’s will result in the following additional authorization or use of dispersants activities under the Clean Water Act costs to address critical habitat impacts: during an oil spill response in Unit 1; related to water quality and NPDES $1,400 in NMFS’costs; $1,600 in action 3. U.S. Army Corps of Engineers programs and the USCG’s authorization agency costs; and $880 in third party (USACE) maintenance dredging or or use of dispersants during an oil spill (e.g., permittee) costs, if applicable. permitting of dredge and disposal response are likely to result in Annual estimated administrative costs activities under the Clean Water Act in incremental impacts due to effects on for the projected number of formal Unit 2; the essential features than the species. consultations representing incremental 4. USACE permitting of marine Based on our analysis of past costs of the critical habitat designation construction, including shoreline consultation history we project that over are expected to total approximately restoration and artificial reef placement the next ten years, there will be 21 $82,296 per year. under the Rivers and Harbors Act and/ consultations involving Water Quality/ Of the four categories of activities that or Clean Water Act in Unit 2; NPDES activities. We also project that have not occurred in the proposed areas 5. The Maritime Administration’s there will be 6 consultations involving in the past but may occur in the future, permitting of siting and construction of oil spill response. and which have the potential to offshore liquefied natural gas facilities Of the past or ongoing activities adversely affect the essential features in Unit 1. expected to recur in Unit 2, all the resulting in ESA section 7 consultations, As discussed in more detail in our federal activities identified as having only oil and gas exploration and Draft ESA Section 4(b)(2) Report the potential to adversely affect the development and a directed copepod (NMFS, 2014b), we determined that two essential features also have the potential fishery in the proposed foraging area,

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and renewable energy activities in the process or through expected features of right whale habitat. U.S. proposed calving area, would result in requirements to modify the action to Navy training and testing activities are incremental impacts due to effects on prevent adverse modification of critical not likely to affect the physical or the essential features. However, because habitat, has been identified as a negative biological features essential to foraging these are categories of future activity for impact of critical habitat designations. in Unit 1, or fragment large, continuous which there is no past consultation (See, e.g., Proposed Designation of areas of the essential features or alter the history and no specific or planned Critical Habitat for the Pacific Coast optimal ranges of these essential project proposals, we are unable to Population of the Western Snowy features in Unit 2 such that they are quantify the number of potential future Plover, 71 FR 34571, June 15, 2006, at rendered unsuitable for calving, and calf consultations and thus the incremental 34583; and Proposed Designation of survival. administrative costs for these activities. Critical Habitat for Southern Resident The USCG considers it unlikely that In our impacts analysis, we assumed Killer Whales; 69 FR 75608, Dec. 17, its exercises, operations, and training that categories of activities that ‘‘may 2004, at 75633.) associated with National and Homeland affect’’ the proposed essential features Based on the past consultation history Security, separately or in aggregate, may result in the need for some sort of and information submitted by DOD for would affect the essential features for project modification to avoid this analysis, it is unlikely that foraging or calving right whale habitat. destruction or adverse modification of consultations with respect to DOD The USCG asserted in its response that critical habitat. Thus, we considered the activities will be triggered as a result of should new or existing regulations range of broad categories of the proposed critical habitat intended to protect the species be modifications we might seek for these designation. applied to the expanded area under activities to avoid negative impacts to On September 21, 2009, and again in consideration for designation as critical the essential features. The cost of project November 2010, NMFS sent letters to habitat, National and Homeland modifications depends on the specific DOD requesting information on national Security impacts would likely result. As project and the circumstances of the security impacts of the proposed critical with naval actions discussed previously, habitat designation, and we received actual project, for example, its size, measures imposed on USCG activities to responses from the Navy, United States timing and location. Although we have prevent or minimize harm to whales Marine Corps (USMC), USCG, a projection of the number of future themselves are not an impact of the Department of Homeland Security formal consultations, we were unable to critical habitat designation. identify the exact modification or (DHS), and the Air Force (USAF). We The Air Force noted in its reply that combinations of modifications that discuss the information contained while the critical habitat area proposed would be required for any future within the responses thoroughly in the is heavily used for flight operations, actions. Thus, it is not possible to Draft Section 4(b)(2) Report (NMFS restrictions on flight operations are not estimate the costs for project 2014b) and summarize the information modifications that would be required to below. currently imposed in critical habitat for address adverse effects that may occur The Navy noted that several of the right whales. Based on our analysis, Air from all projected future agency actions areas under consideration for Force flights in the proposed area are requiring consultation. The same designation as right whale critical not likely to affect the essential features; limitation applies to projecting the type, habitat overlap with important Navy therefore, there would be no need for size, scale, and thus cost, of project testing and training or operational areas. consultations or operation modifications that may be necessary to The Navy stated that while current modifications. avoid jeopardizing the whales’ activities will not destroy or adversely Based on a review of the information existence—we are only able to identify modify the essential features of right provided by the Navy, USMC, and broad categories of types of potential whale critical habitat, national security USCG, DHS, and USAF, and on our future project modifications. The same impacts would result if mitigation review of the activities conducted by categories of potential project measures to protect right whales these entities associated with national modifications that might be themselves, currently in place in security within the specific areas recommended to avoid impacts to the existing critical habitat, were required proposed for designation as right whale species could also address potential for naval activities conducted within the critical habitat, their activities have no impacts to the essential features. In our boundaries of the expanded proposed routes of potential adverse effects to the analysis, we identified where it is critical habitat. However, measures to proposed essential features and will not possible that unique modifications protect whales themselves are not an require consultation to prevent adverse could be required to address impacts to impact of the critical habitat effects to critical habitat (see Draft critical habitat, above and beyond those designation. Section 4(b)(2) Report, NMFS 2014b). needed to address impacts to the In 2013, NMFS completed Therefore, based on information whales. consultation with the Navy on its available at this time, we do not Atlantic Fleet Training and Testing anticipate there will be national security National Security Impacts activities (AFFT) conducted within the impacts associated with the proposed Previous critical habitat designations expanded areas proposed in this critical habitat for the North Atlantic have recognized that impacts to national rulemaking as critical habitat and right whale. security result if a designation would concluded that these activities would Other Relevant Impacts trigger future ESA section 7 not likely jeopardize the continued consultations because a proposed existence of North Atlantic Right Other relevant impacts of critical military activity ‘‘may affect’’ the Whales. As part of the 4(b)(2) analysis habitat designations can include physical or biological feature(s) for this proposed critical habitat conservation benefits to the species and essential to the listed species’ designation, NMFS reviewed the AFTT to society, and impacts to governmental conservation. Anticipated interference activities conducted within the areas and private entities. Our Draft Section with mission-essential training or proposed as critical habitat and 4(b)(2) Report (NMFS 2014b) discusses testing or unit readiness, either through concluded the Navy’s activities would conservation benefits of designating the delays caused by the consultation not likely affect the proposed essential two specific areas, and the benefits of

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conserving the right whale to society, in would likely result in additional designation, both to the species and to both ecological and economic metrics. impacts of the designation. However, it society. Because the features that form As discussed in the Draft Section is impossible to quantify the beneficial the basis of the critical habitat 4(b)(2) Report (NMFS 2014b) and effects of the awareness gained or the designation are essential to the summarized here, large whales, secondary impacts from state and local conservation of North Atlantic right including the North Atlantic right programs resulting from the critical whales, the protection of critical habitat whale, currently provide a range of habitat designation. from destruction or adverse benefits to society. Given the positive modification may at minimum prevent benefits of protecting the physical and Proposed Exclusions Under Section 4(b)(2) loss of the benefits currently provided biological features essential to the by the species and may contribute to an conservation of the right whale, this On the basis of our impacts analysis, increase in the benefits of these species protection will in turn contribute to an we are not proposing to exercise our to society in the future. While we increase in the benefits of this species discretion to propose excluding any cannot quantify nor monetize the to society in the future as the species particular areas from the proposed benefits, we believe they are not recovers. While we cannot quantify nor critical habitat designation. negligible and would be an incremental monetize these benefits, we believe they We could not reasonably quantify the benefit of this designation. Moreover, are not negligible and would be an total economic costs and benefits of the our analysis indicates that all potential incremental benefit of this designation. proposed critical habitat designation future section 7 consultations on However, although the features are due to limited information. impacts to critical habitat features essential to the conservation of right Nevertheless, we believe that our would also be conducted for the whales, critical habitat designation characterization of the types of costs projects’ potential impacts on the alone will not bring about the recovery and benefits that may result from the species, resulting in at least partial co- designation, in particular of the species. The benefits of extensive impacts of the designation circumstances, may provide some useful conserving right whales are, and will and the baseline listing of the species. information to Federal action agencies continue to be, the result of several laws Therefore, we have concluded that there and permit applicants that may and regulations. is no basis to exclude any particular implement the types of activities We identified in the Draft Section area from the proposed critical habitat. 4(b)(2) Report (NMFS 2014b) both discussed in our analyses within the consumptive (e.g., commercial and designated critical habitat. We have Critical Habitat Designation recreational fishing) and non- based the proposed designation on very specifically defined features essential to We are proposing to designate consumptive (e.g., wildlife viewing) 2 activities that occur in the areas the species’ conservation, which approximately 29,945 nm of marine proposed as critical habitat. Commercial allowed us to identify the few, specific habitat within the geographical area and recreational fishing are components effects of federal activities that may occupied by North Atlantic right whales of the economy related to the ecosystem adversely affect such features and thus at the time of its listing. The two units services provided by the resources require section 7 consultation under the proposed for designations are in the within the proposed right whale critical ESA. We have discussed to the extent Gulf of Maine and Georges Bank region habitat areas. The essential features possible the circumstances under which (Unit 1) and in waters off the Southeast provide for abundant fish species section 7 impacts will be incremental U.S coast (Unit 2). diversity. Commercial fishing is the impacts of this proposed rule. We The specific area where the essential largest revenue generating activity believe that the limitations of current foraging features are located (‘‘Unit 1’’) occurring within the proposed critical information about potential future is in the Gulf of Maine and Georges habitat area, and protection of the projects do not allow us to be more Bank region and covers a total area of essential features will contribute to specific in our estimates of the section approximately 21,334 nm2. In Unit 1, sustaining this activity. 7 impacts (administrative consultation the physical and biological features that Further, the economic value of right and project modification costs) of the are essential to the conservation of the whales can be estimated in part by such proposed designation. species and that may require special metrics as increased visitation and user We have analyzed the economic, management considerations or enjoyment measured by the value of national security, and other relevant protection are: impacts of designating critical habitat. whale watching activities. 1. The physical oceanographic Education and awareness benefits While we have utilized the best conditions and structures of the Gulf of stem from the critical habitat available information and an approach Maine and Georges Bank region that designation when non-federal designed to avoid underestimating combine to distribute and aggregate C. government entities or members of the impacts, many of the potential impacts finmarchicus for right whale foraging, general public responsible for, or are speculative and may not occur in the namely prevailing currents and interested in, North Atlantic right whale future. Our conservative identification circulation patterns, bathymetric conservation change their behavior or of potential incremental economic features (basins, banks, and channels), activities when they become aware of impacts indicates that any such impacts oceanic fronts, density gradients, and the designation and the importance of would be very small, resulting from very temperature regimes; the critical habitat areas and features. few (less than 17) federal section 7 Designation of critical habitat raises the consultations annually. Further, the 2. Low flow velocities in Jordan, public’s awareness that there are special analysis indicates that there is no Wilkinson, and Georges Basins that considerations that may need to be particular area within the areas allow diapausing C. finmarchicus to taken within the area. Similarly, state proposed for designation as critical aggregate passively below the and local governments may be habitat where economic impacts would convective layer so that the copepods prompted to carry out programs to be particularly high or concentrated. No are retained in the basins; complement the critical habitat impacts to national security are 3. Late stage C. finmarchicus in dense designation and benefit the North expected. Other relevant impacts aggregations in the Gulf of Maine and Atlantic right whale. Those programs include conservation benefits of the Georges Bank region; and

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4. Diapausing C. finmarchicus in adversely affect listed species or critical (whether public or private) that may aggregations in the Gulf of Maine and habitat and issue its findings in a adversely modify such habitat or that Georges Bank region. biological opinion. If NMFS concludes may be affected by such designation. A The specific area where the essential in the biological opinion that the agency variety of activities may affect the calving features are located (‘‘Unit 2’’) is action would likely result in the proposed critical habitat and may be in the South Atlantic Bight and covers destruction or adverse modification of subject to the ESA section 7 a total area of approximately 8,611 nm2. critical habitat, NMFS would also consultation process when carried out, Within Unit 2, the essential features are: recommend any reasonable and prudent funded, or authorized by a Federal 1. Sea surface conditions associated alternatives to the action. Reasonable agency. As indicated above and in the with Force 4 or less on the Beaufort and prudent alternatives are defined in 4(b)(2) report, activities (3) through (6) Scale, 50 CFR 402.02 as alternative actions and (9) are only predicted to result in 2. Sea surface temperatures of 7 °C to identified during formal consultation incremental administrative costs of 17 °C, and that can be implemented in a manner consultation. As discussed previously, 3. Water depths of 6 to 28 meters. consistent with the intended purpose of the activities most likely to be affected These features simultaneously co-occur the action, that are consistent with the by this critical habitat designation, once over contiguous areas of at least 231 scope of the Federal agency’s legal finalized, are: (1) Water Quality/NPDES nmi2 of ocean waters during the months authority and jurisdiction, that are permitting and regulatory activities of November and April. When these economically and technologically (Unit 1); (2) Oil Spill Response (Unit 1); features are available, they are selected feasible, and that would avoid the (3) Maintenance Dredging and Disposal by right whale cows and calves in destruction or adverse modification of or Dredging (Unit 2); (4) Construction dynamic combinations that are suitable critical habitat. Regulations at 50 CFR Permitting (Unit 2); (5) Offshore Liquid for calving, nursing, and rearing, and 402.16 require federal agencies that Natural Gas Facilities (Unit 1); (6) Oil which vary, within the ranges specified, have retained discretionary involvement and Gas Exploration and Development depending on factors such as weather or control over an action, or where such (Unit 1); (7) Offshore alternative energy and age of the calves. discretionary involvement or control is development activities (Unit 2); (8) No unoccupied areas are proposed for authorized by law, to reinitiate Directed copepod fisheries (Unit 1); and designation of critical habitat. consultation on previously reviewed (9) Marine aquaculture (Unit 2). Private Effects of Critical Habitat Designations actions in instances where: (1) Critical entities may also be affected by this habitat is subsequently designated; or proposed critical habitat designation if a Section 7(a)(2) of the ESA requires (2) new information or changes to the Federal permit is required, Federal Federal agencies, including NMFS, to action may result in effects to critical funding is received, or the entity is insure that any action authorized, habitat not previously considered in the involved in or receives benefits from a funded, or carried out by the agency biological opinion. Consequently, some Federal project. These activities will (agency action) does not jeopardize the Federal agencies may request need to be evaluated with respect to continued existence of any threatened reinitiation of consultation or their potential to destroy or adversely or endangered species or destroy or conference with NMFS on actions for modify critical habitat. Changes to the adversely modify designated critical which formal consultation has been actions to avoid destruction or adverse habitat. Federal agencies are also completed, if those actions may affect modification of proposed critical habitat required to confer with NMFS regarding designated critical habitat or adversely may result in changes to some activities. any actions likely to jeopardize a modify or destroy proposed critical Please see the ESA Section 4(b)(2) species proposed for listing under the habitat. Report (NMFS 2014b) for more details ESA, or likely to destroy or adversely Activities subject to the ESA section and examples of changes that may need modify proposed critical habitat, 7 consultation process include activities to occur in order for activities to pursuant to section 7(a)(4). A conference on Federal lands and activities on minimize or avoid destruction or involves informal discussions in which private or state lands requiring a permit adverse modification of designated NMFS may recommend conservation from a Federal agency or some other critical habitat. Questions regarding measures to minimize or avoid adverse Federal action, including funding. In the whether specific activities will effects. The discussions and marine environment, activities subject constitute destruction or adverse conservation recommendations are to be to the ESA section 7 consultation modification of critical habitat should documented in a conference report process include activities in Federal be directed to NMFS (see ADDRESSES provided to the Federal agency. If waters and in state waters that (1) have and FOR FURTHER INFORMATION CONTACT). requested by the Federal agency, a the potential to affect listed species or formal conference report may be issued, critical habitat, and (2) are carried out Public Comments Solicited including a biological opinion prepared by a Federal agency, need a permit or We request that interested persons according to 50 CFR 402.14. A formal license from a Federal agency, or receive submit comments, information, maps, conference report may be adopted as the funding from a Federal agency. ESA and suggestions concerning this biological opinion when the species is section 7 consultation would not be proposed rule during the comment listed or critical habitat designated, if no required for Federal actions that do not period (see DATES). We are soliciting significant new information or changes affect listed species or critical habitat comments or suggestions from the to the action alter the content of the and for actions in the marine public, other concerned governments opinion. When a species is listed or environment or on non-Federal and and agencies, the scientific community, critical habitat is designated, Federal private lands that are not Federally industry, or any other interested party agencies must consult with NMFS on funded, authorized, or carried out. concerning this proposed rule. We are any agency actions to be conducted in also soliciting economic data and an area where the species is present and Activities That May Be Affected information pertaining to our economic that may affect the species or its critical ESA section 4(b)(8) requires in any analysis and our Initial Regulatory habitat. During the consultation, NMFS proposed or final regulation to designate Flexibility Analysis to improve our would evaluate the agency action to or revise critical habitat an evaluation assessment of the impacts of this determine whether the action may and brief description of those activities proposed rule on small entities. You

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may submit your comments and discretion in determining the request (see ADDRESSES). A summary of materials concerning this proposal by appropriate process and level of peer that document follows. any one of several methods (see review. Stricter standards were This proposed action would replace ADDRESSES). The proposed rule, maps, established for the peer review of the 1994 critical habitat for right whales fact sheets, references, and other ‘‘highly influential scientific in the North Atlantic with two new materials relating to this proposal can be assessments,’’ defined as information areas of critical habitat for the North found on the NMFS Greater Atlantic whose ‘‘dissemination could have a Atlantic right whale pursuant to ESA Region Web site at potential impact of more than $500 sections 4(a)(3)(A)(i) and 4(b)(3)(D). The www.greateratlantic.fisheries.noaa.gov/. million in any one year on either the areas under consideration contain We will consider all comments public or private sector or that the approximately 29,953 nm2 of marine pertaining to this designation received dissemination is novel, controversial, or habitat in the Gulf of Maine-Georges during the comment period in preparing precedent-setting, or has significant Bank region (Unit 1) and off the coasts the final rule. Accordingly, the final interagency interest.’’ of northern Florida, Georgia, South designation may differ from this The Draft Biological Source Document Carolina and the southern part of North proposal. (NMFS 2014a) and Draft Section 4(b)(2) Carolina (Unit 2). The purpose of this action is to designate, within the Public Hearings Report (NMFS 2014b) supporting this proposed critical habitat rule are geographical area occupied by the 50 CFR 424.16(c)(3) requires the considered influential scientific species at the time it was listed, the Secretary of Commerce (Secretary) to information and subject to peer review. specific areas that contain the physical promptly hold at least one public To satisfy our requirements under the and biological features essential to the hearing if any person requests one OMB Bulletin, we obtained independent conservation of the species and which within 45 days of publication of a peer review of those draft documents, may require special management proposed rule to designate critical which support this critical habitat considerations or protection. No areas habitat. Such hearings provide the proposal, and incorporated the peer outside the species’ geographical range opportunity for interested individuals review comments prior to dissemination have been identified as essential to its and parties to give comments, exchange of this proposed rulemaking. For this conservation; therefore, none are information and opinions, and engage in action, compliance with the OMB Peer proposed for designation in this action. a constructive dialogue concerning this Review Bulletin satisfies any peer The objective is to help conserve proposed rule. review requirements under the 1994 endangered North Atlantic right whales. The proposed critical habitat rule Information Quality Act and Peer joint peer review policy. does not directly apply to any particular Review The Draft Biological Source Document (2014a) and Draft ESA Section 4(b)(2) entity, small or large. The rule would be The data and analyses supporting this implemented under ESA Section 7(a)(2), Report (NMFS 2014b) prepared in proposed action have undergone a pre- which requires that Federal agencies support of this proposal for critical dissemination review and have been insure, in consultation with NMFS, that habitat for the North Atlantic right determined to be in compliance with any action they authorize, fund, or carry whale are available on our Web site at applicable information quality out is not likely to destroy or adversely www.greateratlantic.fisheries.noaa.gov, guidelines implementing the modify critical habitat. That on the Federal eRulemaking Web site at Information Quality Act (IQA) (Section consultation process may result in the http://www.regulations.gov, or upon 515 of Public Law 106–554). On July 1, recommendation or requirement of request (see ADDRESSES). 1994, a joint USFWS/NMFS policy for project modifications in order to protect peer review was issued stating that the Required Determinations critical habitat. Services would solicit independent peer The proposed rule, in conjunction review to ensure the best biological and Regulatory Planning and Review (E.O. with the section 7(a)(2) consultation commercial data is used in the 12866) process, may indirectly affect small development of rulemaking actions and This proposed rule has been businesses, small nonprofit draft recovery plans under the ESA (59 determined to be significant under organizations, and small governmental FR 34270). In addition, on December 16, Executive Order (E.O.) 12866. jurisdictions if they engage in activities 2004, the Office of Management and that may affect the essential features Budget (OMB) issued its Final National Environmental Policy Act identified in this proposed designation Information Quality Bulletin for Peer An environmental analysis as and if they receive funding or Review (Bulletin). The Bulletin was provided for under the National authorization for such activity from a published in the Federal Register on Environmental Policy Act (NEPA) for federal agency. Such activities would January 14, 2005 (70 FR 2664), and went critical habitat designations made trigger ESA section 7 consultation into effect on June 16, 2005. The pursuant to the ESA is not required. See requirements and potential primary purpose of the Bulletin is to Douglas County v. Babbitt, 48 F.3d 1495 requirements to modify proposed improve the quality and credibility of (9th Cir. 1995), cert. denied, 116 S.Ct. activities to avoid destroying or scientific information disseminated by 698 (1996). adversely modifying the critical habitat. the Federal government by requiring The proposed rule may also indirectly peer review of ‘‘influential scientific Regulatory Flexibility Act benefit small entities that benefit from information’’ and ‘‘highly influential We prepared an initial regulatory or strive for the protection of the scientific information’’ prior to public flexibility analysis (IRFA) pursuant to essential features, such as commercial dissemination. ‘‘Influential scientific section 603 of the Regulatory Flexibility fishing and whale watching industries. information is defined as information Act (5 U.S.C. 601, et seq.), which The past consultation record from the agency reasonably can determine describes the economic impact this which we have projected likely federal will have or does have a clear and proposed rule, if adopted, would have actions over the next 10 years indicates substantial impact on important public on small entities. The IRFA is found in that applicants for federal permits or policies or private sector decisions.’’ Appendix B of the Draft ESA Section funds have included small entities in The Bulletin provides agencies broad 4(b)(2) Report and is available upon the past.

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A review of historical ESA section 7 based on the type of permitted action to the critical habitat designation and consultations involving projects in the and its associated impacts on the are therefore incremental. In addition, areas proposed for designation is essential critical habitat feature. Because we have identified two potential future described in Section 3.2 of the Draft the costs of many potential project activities that may have greater effects ESA Section 4(b)(2) Report prepared for modifications that may be required to on the essential features than the this rulemaking. We have concluded, avoid adverse modification of critical species, and thus the impacts are based on our review of past section 7 habitat are unit costs such that total incremental. These are oil and gas consultations, and analyses in our draft project modification costs would be exploration and development in Unit 1 4(b)(2) report (NMFS 2014b), that no proportional to the size of the project, it and the development of offshore category of activity would trigger is not unreasonable to assume that renewable energy in Unit 2. Therefore, consultation on the basis of the critical larger entities would be involved in we conclude that there are incremental habitat designation alone. Based on our implementing the larger projects with impacts attributable to this critical review of past consultations, we have proportionally larger project habitat designation. The associated identified five categories of activities modification costs. estimated administrative annual costs that may affect the proposed critical It is also unclear whether the for the projected number of formal habitat: in Unit 1 National Pollution proposed rule will significantly reduce consultations projected to be focused Discharge Elimination System (NPDES) profits or revenue for small businesses. more on critical habitat are expected to permitting and oil spill response and; in As discussed throughout the Draft ESA cost approximately $82,296 per year. Unit 2 dredging and spoil disposal, Section 4(b)(2) Report (NMFS 2014b), Economic effects from the action are not marine construction permitting, and we assumed all of the future expected to be significant and are not construction, and operation of energy consultations that may result in anticipated to affect in a material way facilities. Of those, we identified the incremental costs attributable to the the economy, a sector of the economy, following categories of actions that may proposed critical habitat will be formal productivity, competition, jobs, local or have incremental impacts: for Unit 1, consultations. This conclusion likely tribal governments or communities. water quality/NPDES and, oil spill results in an overestimate of the impacts Third party applicants or permittees response. We did not identify any for of the proposed action. In addition, as would be expected to incur costs Unit 2. We also identified four new (i.e., stated previously, though it is not associated with participating in the not previously consulted on) categories possible to determine the exact cost of administrative process of consultation of federal activities that may occur in any given project modification resulting along with the permitting federal the future and, if they do occur, may from consultation, the smaller projects agency. The average per consultation affect the essential features. In Unit 1 most likely to be undertaken by small administrative costs for third parties is these potential activities are: (1) Oil and entities would likely result in relatively approximately $880. Because we have gas exploration and development small modification costs. assumed all potential future Economic impacts of the proposed activities; and (2) directed copepod consultations will be formal this may action consist of two main components: fisheries. In Unit 2 we have identified represent an overestimation of the costs. administrative costs, and costs of three categories of federal activities that It is not possible to identify which third modifying projects in order to avoid could occur in the future: (1) Oil and gas parties would qualify as small business destroying or adversely modifying the exploration; (2) offshore alternative entities. This action does not contain critical habitat. These costs may be any new collection-of-information, energy developments; and (3) marine incurred by NMFS, the Federal action reporting, recordkeeping, or other aquaculture. Of those, we identified the agency, or a third party proposing the compliance requirements. Any reporting following categories of actions that may activity in areas proposed as critical requirements associated with reporting have incremental impacts: Oil and gas habitat. The only quantitative cost on the progress and success of exploration; (2) offshore alternative estimates we can provide for this implementing project modifications are energy developments. Potential project proposed action are the estimated not likely to require special skills to modifications we have identified that administrative costs associated with satisfy. may be required to prevent these types ESA section 7 consultations required In Unit 1, commercial fishing is the of projects from destroying or adversely due to potential impacts to both the largest revenue generating activity modifying critical habitat include: proposed critical habitat and the listed occurring within the proposed critical Project relocation, project redesign, species. Based on our analysis in the habitat Unit 1; commercial fishing is not conditions monitoring, water quality 4(b)(2) report (NMFS 2014b), we have identified as an activity for which standard modification, pollution control identified categories of federal actions project modifications might be measures, timing restrictions, and area that ‘‘may affect’’ the essential features necessary. We have concluded, that restrictions as outlined in Table 11 of in the future, but all of these projects with the exception of a possible future the Draft ESA Section 4(b)(2) Report will also affect the listed species. We proposal to conduct a directed copepod (NMFS 2014b). considered whether any of these future fishery, the proposed action to designate While we cannot determine relative activities may pose a greater threat to critical habitat for the North Atlantic numbers of small and large entities that the essential features than to the listed right whale will not have a direct may be affected by this proposed rule, species in order to identify any impact on the profitability of small there is no indication that affected incremental costs of the designation. commercial fishing entities. That is project applicants would be limited to, Based on our review (NMFS 2014b), we because we have concluded that current nor disproportionately comprise, small have determined that impacts resulting fishing practices and techniques will entities. It is unclear whether small from EPA’s management of municipal not affect the essential foraging features entities would be placed at a wastewater discharges to offshore in Unit 1. In 2014, based on a review of competitive disadvantage compared to waters and EPA’s activities the number of active fishing vessels and large entities. However, as described in implementing the NPDES programs, as dealers and trips landed in ME, NH, MA the Draft ESA Section 4(b)(2) Report well as the USCG authorization or use or RI in the Gulf of Maine Region, we (NMFS 2014b), consultations and of dispersants during an oil spill have determined that there were 483 project modifications will be required response in Unit 1, are more attributable dealers and 8,094 fishing vessels that

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meet the definition of small business Other small business entities include by this proposed rule to comment on the entities. These numbers likely provide the approximately 55–70 whale- potential economic impacts of the an overestimate of the total number of watching companies that operate within proposed designation, such as vessels and fish dealers engaged in the the area on which are found the anticipated costs of consultation and harvest of seafood within Unit 1 as it essential foraging features under potential project modifications, to includes some non-federally-permitted consideration for designation as critical improve the draft analysis. vessels fishing only in state waters. As habitat. While these small businesses The alternatives to the proposed noted in the 4(b)(2) report, with the may benefit indirectly from the designation considered consisted of a exception of a potential future proposal preservation of the current ecosystem, no-action alternative, our preferred for a directed copepod fishery there are approach regulations prohibit the alternative, and an alternative with no fishery related activities that would targeting of right whales by these whale larger areas designated in both Unit 1 trigger consultation on the basis of the watching operations. Whale watching and Unit 2 areas. The no-action, or no critical habitat designation. companies would not be negatively designation, alternative would result in In Unit 1, another potentially affected by this action as their activities no additional ESA section 7 impacted small entity identified is small were not identified as having the consultations relative to the status quo municipalities. A review of the potential to affect the features. There is of the species’ listing and existing consultation history indicates that we the potential for some unquantifiable critical habitat. However, the physical have consulted with the U.S. EPA on positive benefit to accrue to these small and biological features forming the basis for our proposed critical habitat small governmental jurisdictions’ businesses as a result of the preservation designation are essential to North (population less than or equal to 50,000) and maintenance of the ecosystem Atlantic right whale conservation, and municipal wastewater discharges benefits associated with the essential conservation for this species will not adjacent to the area under consideration foraging features. In Unit 2, the only category of succeed without the availability of these for designation as critical habitat. Based potentially impacted small entities is features. Thus, the lack of protection of on our review of past consultation wind energy firms. Structures associated the critical habitat features from adverse history we are projecting a total of 2l with these activities could fragment modification could result in continued consultations over the next 10 years large, continuous areas of the essential declines in abundance of the right involving primarily small features such that Unit 2 is rendered whale, and loss of associated economic municipalities and NPDES/Water unsuitable for calving right whales. values right whales provide to society. Quality activities. Any small Potential project modifications to Under the preferred alternative two municipality that proposes to discharge minimize impacts to essential features specific areas that provide foraging pollutants to waters of the United States would likely focus on project design (Unit 1) and calving (Unit 2) functions must obtain a discharge permit from and density of structures. The SBA for the North Atlantic right whale are EPA or their appropriate state revised the size standards for 13 proposed as critical habitat. These areas environmental protection agency, industries in the North American contain the physical and biological depending on which agency administers Industry Classification system (NAICS) features essential to the conservation of the permit program, to ensure Sector 22, Utilities. Relevant to this the North Atlantic right whale. The compliance with the Clean Water Act. proposed action, the revised SBA small preferred alternative was selected The Section 7 consultation requirement business now categorizes the small because it reflects the best available applies to the EPA’s, but not state business entity for wind electric power scientific information on right whale agencies’, authorization of discharges generation as any firm with 250 habitat, best implements the critical that may affect listed species and employees or less. We are unable to habitat provisions of the ESA by critical habitat. Of the states bordering quantify the incremental impacts at this defining the specific features that are proposed Unit 1, EPA administers the time due to the lack of past consultation essential to the conservation of the discharge permit program only in history and any specific or planned species, and offers greater conservation Massachusetts and New Hampshire; federal proposals for these projects. benefits relative to the no action therefore, consultations with EPA Thus, we would only be speculating in alternative. would be required for municipal estimating the number of potential Under the Unit 1 alternative, we discharges only from those two states. projects in this category that may considered an area that would Thus, the number of small require consultation due to critical encompass additional right whale municipalities that might be impacted habitat impacts over the next 10 years, sightings within the Gulf of Maine- would be less than the 20 predicted to and further speculating in predicting the Georges Bank region (particularly be involved in consultations from all number of small entities that might be inshore waters along the coasts of states bordering Unit 1, over the next 10 involved. Maine, New Hampshire and years. Generally, discharge permits need No federal laws or regulations Massachusetts), as well as additional to be renewed every 5 years unless they duplicate or conflict with the proposed right whale sightings to the south and are administratively extended, so there rule. Existing Federal laws and east of the southern boundary of is the potential for consultation regulations overlap with the proposed proposed Unit 1 resulting in a much approximately every 5 years or so. In the rule only to the extent that they provide larger geographic area. However, these past, we have consulted with EPA on protection to marine natural resources sightings did not constitute a pattern of discharges from publicly owned or whales generally. However, no repeated annual observations. In treatment works operated by small existing laws or regulations specifically addition, North Atlantic right whales municipalities. Based on the past prohibit destruction or adverse are seldom reported in small coastal consultation history, we believe that any modification of critical habitat for, and bays and inshore waters and feeding future economic impact to small focus on the recovery of, North Atlantic aggregations are not in these areas, municipalities due to consultation to right whales. indicating that the physical and analyze impacts to right whale critical We encourage all small businesses, biological features present in these areas habitat from wastewater discharge small governmental jurisdictions, and do not provide the foraging functions would be small. other small entities that may be affected essential to the conservation of the

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species in these areas. Therefore, we entire North Carolina coast), based on promulgation of a final rule or rejected this alternative because the the reasons stated above. regulation that is a significant regulatory inshore waters along the coasts of action under E.O. 12866 and is likely to Coastal Zone Management Act Maine, New Hampshire and have a significant adverse effect on the Massachusetts are not considered to We have determined that this action supply, distribution, or use of energy. meet the definition of critical habitat. will have no reasonably foreseeable OMB Guidance on Implementing E.O. In addition we considered including effects on the enforceable policies of 13211 (July 13, 2001) states that areas to the south and east of the approved Coastal Zone Management significant adverse effects could include southern boundary of the proposed Unit Program of Maine, New Hampshire, any of the following outcomes 1 to encompass additional right whale Massachusetts, Rhode Island, compared to a world without the sightings. These right whale sightings Connecticut, New York, New Jersey, regulatory action under consideration: were not included within the proposed Delaware, Maryland, Virginia, North (1) Reductions in crude oil supply in areas because a pattern of repeated Carolina, South Carolina, Georgia and excess of 10,000 barrels per day; (2) annual observations is not evident in Florida. Upon publication of this reductions in fuel production in excess these areas. Typically, whales are proposed rule, these determinations will of 4,000 barrels per day; (3) reductions sighted in these areas in one year, but be submitted for review by the in coal production in excess of 5 million are not seen again for a number of years. responsible state agencies under section tons per year; (4) reductions in natural Most likely, these are sightings of 307 of the Coastal Zone Management gas production in excess of 25 million migrating whales (Pace and Merrick Act. mcf per year; (5) reductions in 2008). electricity production in excess of 1 In Unit 2, we considered extending Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) billion kilowatt-hours per year or in the boundaries to just south of Cape excess of 500 megawatts of installed Canaveral, Florida, similar to existing This proposed rule does not contain capacity; (6) increases in energy use SE calving critical habitat. Moving the a new or revised collection of required by the regulatory action that proposed boundary southward would information. This rule would not exceed any of the thresholds above; (7) have captured southern habitat impose recordkeeping or reporting increases in the cost of energy predicted by Good’s (2008) calving requirements on State or local production in excess of one percent; (8) habitat model for one month. However, governments, individuals, businesses, or increases in the cost of energy Garrison’s (2007) habitat model didn’t organizations. distribution in excess of one percent; or predict suitable calving habitat that far Federalism (E.O. 13132) (9) other similarly adverse outcomes. A south when based on the 75th percentile regulatory action could also have of predicted sightings per unit effort Pursuant to the Executive Order on Federalism, E.O. 13132, we determined significant adverse effects if it: (1) (SPUE) (91% of historical sightings). Adversely affects in a material way the Since Garrison’s 75th percentile that this proposed rule does not have productivity, competition, or prices in captures 91% of historical sightings, we significant Federalism effects and that a the energy sector; (2) adversely affects in were comfortable with not examining Federalism assessment is not required. a material way productivity, additional model results by Garrison However, in keeping with Department competition or prices within a region; (e.g., habitat based on 65th–70th of Commerce policies and consistent (3) creates a serious inconsistency or percentile of predicted SPUE which with ESA regulations at 50 CFR otherwise interfere with an action taken would represent >91% of historical 424.16(c)(1)(ii), we request information or planned by another agency regarding sightings). Good’s model also predicted from, and will coordinate development energy; or (4) raises novel legal or policy suitable habitat for one month north of of this proposed critical habitat issues adversely affecting the supply, our proposed Unit 2 boundary along designation with, appropriate state much of North Carolina. However, Good resource agencies in Maine, New distribution or use of energy arising out stated that the combined model using Hampshire, Massachusetts, Rhode of legal mandates, the President’s all four months (Jan-March) best Island, Connecticut, New York, New priorities, or the principles set forth in represented calving habitat in space and Jersey, Delaware, Maryland, Virginia, E.O. 12866 and 13211. This rule, if time. Garrison (2007) and Keller et al. North Carolina, South Carolina, Georgia, finalized, will not have a significant (2012) cautioned against extending their and Florida. The proposed designations adverse effect on the supply, models too far north of where the may have some benefit to state and local distribution, or use of energy. Therefore, underlying data were collected because resource agencies in that the proposed we have not prepared a Statement of other ecological variables may come rule more clearly defines the physical Energy Effects. The rationale for this into play. Given that the 75th percentile and biological features essential to the determination follows. from Garrison (2007) and Keller et al. conservation of the species and the We have considered the potential (2012) and Good’s (2008) habitat areas on which those features are found. impacts of this action on the supply, selected in three and four months It may also assist local governments in distribution, or use of energy. The account for 91 and 85 percent of all long-range planning (rather than waiting proposed critical habitat designation observed right whale mother-calf pair for case by-case ESA section 7 will not affect the distribution or use of sightings, respectively, and Good’s consultations to occur). energy and would not affect supply. We (2008) combined (four month) model is have concluded that oil and gas the best representation of potential Energy Supply, Distribution, and Use exploration and development that might calving habitat both in time and space, (E.O. 13211) occur in the future, offshore liquid we believe these predicted habitat areas On May 18, 2001, the President issued natural gas (LNG) facilities, and are the best basis for determining right an Executive Order on regulations that alternative energy projects may affect whale calving habitat in the significantly affect energy supply, both the species and the essential southeastern U.S. Consequently, we distribution, and use. E.O. 13211 features of critical habitat. As discussed considered, but eliminated, the requires agencies to prepare Statements in the Draft Section 4(b)(2) Report, we alternatives of farther south (to of Energy Effects when undertaking an anticipate that there may be small ∼Canaveral) or farther north (along the action expected to lead to the additional incremental administrative

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and project modification costs impacts to the species would also require approval or authorization from a associated with the section 7 address potential impacts to the Federal agency for an action may be consultations on oil/gas exploration/ essential features. In addition, in some indirectly affected by the designation of development in Unit 1 and alternative cases, potential project modifications critical habitat. Furthermore, to the energy projects in Unit 2 due to this are common environmental mitigation extent that non-Federal entities are proposed rule. measures that are already being indirectly impacted because they With regard to LNG facilities in Unit performed under existing laws and receive Federal assistance or participate 1, we do not anticipate incremental regulations that seek to prevent or in a voluntary Federal aid program, the impacts from this rule on LNG activities minimize adverse impacts to marine Unfunded Mandates Reform Act would based on our analysis of the potential resources in general. Therefore, it not apply, nor would critical habitat impacts of this activity. Absent this appears unlikely that the energy shift the costs of the large entitlement proposed critical habitat rule, federal industry will experience ‘‘a significant programs listed previously to State agencies authorizing, funding, or adverse effect’’ as a result of the critical governments. carrying out these energy-related habitat designation for North Atlantic (B) We do not anticipate that this final activities would be required to consult right whale. rule will significantly or uniquely affect with NMFS regarding impacts to right small governments. As such, a Small whales themselves, and other listed Unfunded Mandates Reform Act (2 Government Agency Plan is not species such as sea turtles, under the U.S.C. 1501 et seq.) required. jeopardy standard. However, if this In accordance with the Unfunded critical habitat rule were finalized, we Mandates Reform Act, NMFS makes the Takings (E.O. 12630) would expect the additional, critical following findings: habitat-related administrative costs to be (A) This final rule will not produce a Under E.O. 12630, Federal agencies miniscule, and we would expect any Federal mandate. In general, a Federal must consider the effects of their actions critical habitat-related project mandate is a provision in legislation, on constitutionally protected private modification costs to insignificant. statute, or regulation that would impose property rights and avoid unnecessary The proposed action might result in an enforceable duty upon State, local, takings of property. A taking of property project modifications that result in Tribal governments, or the private sector includes actions that result in physical changes to how energy extraction is and includes both ‘‘Federal invasion or occupancy of private conducted, but these modifications intergovernmental mandates’’ and property, and regulations imposed on would not result in a reduction of ‘‘Federal private sector mandates.’’ private property that substantially affect energy supply or production or These terms are defined in 2 U.S.C. its value or use. In accordance with E.O. increases in energy use. The proposed 658(5)–(7). ‘‘Federal intergovernmental 12630, this proposed rule would not action would not result in an increase mandate’’ includes a regulation that have significant takings implications. A in the cost of energy production in ‘‘would impose an enforceable duty takings implication assessment is not excess of one percent. upon State, local, or Tribal required. The designation of critical In Unit 2, depending on the size, governments’’ with two exceptions. It habitat in the marine environment does scale, and configuration of a potential excludes ‘‘a condition of Federal not affect private property, and it affects wind farm, the installation and assistance.’’ It also excludes ‘‘a duty only Federal agency actions. operation of an array of wind turbines arising from participation in a voluntary may fragment large, continuous areas of Federal program,’’ unless the regulation References the essential features such that Unit 2 is ‘‘relates to a then-existing Federal A complete list of all references cited rendered unsuitable for calving right program under which $500,000,000 or in this rulemaking can be found on our whales. Therefore, potential project more is provided annually to State, Web site at modifications may be recommended local, and Tribal governments under www.greateratlantic.fisheries.noaa.gov/ during a section 7 consultation entitlement authority,’’ if the provision and is available upon request from the including project relocation or project would ‘‘increase the stringency of NMFS Greater Atlantic Regional Office redesign. Recommending relocation of a conditions of assistance’’ or ‘‘place caps in Gloucester, Massachusetts (see proposed wind farm may result in upon, or otherwise decrease, the Federal ADDRESSES). increased costs per kilowatt (kW). These government’s responsibility to provide increased costs may stem from funding’’ and the State, local, or Tribal List of Subjects in 50 CFR Part 226 increased distance from shore, increased governments ‘‘lack authority’’ to adjust water depths, or different environmental accordingly. ‘‘Federal private sector Endangered and threatened species. conditions at the alternative site, each of mandate’’ includes a regulation that Dated: February 12, 2015. which may drive up construction, ‘‘would impose an enforceable duty Samuel D. Rauch, III, installation, or operation and upon the private sector, except (i) a Deputy Assistant Administrator for maintenance costs. Because potential condition of Federal assistance; or (ii) a Regulatory Programs, National Marine project modifications recommended duty arising from participation in a Fisheries Service. during a section 7 consultation are voluntary Federal program.’’ The For the reasons set out in the dependent on the specific project and designation of critical habitat does not preamble, we propose to amend 50 CFR the circumstances of the new project’s impose an enforceable duty on non- part 226 as follows: routes of effect on the species and the Federal government entities or private essential features, an estimate of the parties. The only regulatory effect of a PART 226—DESIGNATED CRITICAL average cost or range of costs resulting critical habitat designation is that HABITAT from these recommendations cannot be Federal agencies must ensure that their reasonably made at this time. actions do not destroy or adversely ■ 1. The authority citation for part 226 As discussed, above and in the Draft modify critical habitat under ESA continues to read as follows: ESA Section 4(b)(2) Report, any section 7. Non-Federal entities who Authority: 16 U.S.C. 1533. potential project modification that receive funding, assistance, or permits would be recommended to avoid from Federal agencies, or otherwise ■ 2. Revise § 226.203 to read as follows:

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§ 226.203 Critical habitat for North Atlantic (ii) Sea surface temperatures of 7 °C (ix) From this point, following the right whales (Eubalaena glacialis). to 17 °C, and U.S.-Canada maritime boundary north Critical habitat is designated for North (iii) Water depths of 6 to 28 meters, to the intersection of 44°49.727′ N/ Atlantic right whales as described in where these features simultaneously co- 66°57.952′ W; From this point, moving this section. The textual descriptions in occur over contiguous areas of at least southwest along the coast of Maine, the paragraph (b) of this section are the 231 nmi2 of ocean waters during the specific area is located seaward of the definitive source for determining the months of November through April. line connecting the following points: critical habitat boundaries. The maps of When these features are available, they the critical habitat units provided in are selected by right whale cows and Lat Long paragraph (c) of this section are for calves in dynamic combinations that are ° ′ ° ′ illustrative purposes only. suitable for calving, nursing, and 44 49.727 N ...... 66 57.952 W. 44°49.67′ N ...... 66°57.77′ W. (a) Physical and biological features rearing, and which vary, within the 44°48.64′ N ...... 66°56.43′ W. essential to the conservation of ranges specified, depending on factors 44°47.36′ N ...... 66°59.25′ W. endangered North Atlantic right whales. such as weather and age of the calves. 44°45.51′ N ...... 67°2.87′ W. (1) Unit 1. The physical and biological (b) Critical habitat boundaries. 44°37.7′ N ...... 67°9.75′ W. features essential to the conservation of Critical habitat includes two areas 44°27.77′ N ...... 67°32.86′ W. the North Atlantic right whale, which (Units) located in the Gulf of Maine and 44°25.74′ N ...... 67°38.39′ W. ° ′ ° ′ provide foraging area functions in Unit Georges Bank Region (Unit 1) and off 44 21.66 N ...... 67 51.78 W. 44°19.08′ N ...... 68°2.05′ W. 1 are: The physical oceanographic the coast of North Carolina, South ° ′ ° ′ Carolina, Georgia and Florida (Unit 2). 44 13.55 N ...... 68 10.71 W. conditions and structures of the Gulf of 44°8.36′ N ...... 68°14.75′ W. Maine and Georges Bank region that (1) Unit 1. The specific area on which 43°59.36′ N ...... 68°37.95′ W. combine to distribute and aggregate C. are found the physical and biological 43°59.83′ N ...... 68°50.06′ W. finmarchicus for right whale foraging, features essential to the conservation of 43°56.72′ N ...... 69°4.89′ W. namely prevailing currents and the North Atlantic right whale include 43°50.28′ N ...... 69°18.86′ W. circulation patterns, bathymetric all waters, seaward of the boundary 43°48.96′ N ...... 69° 31.15′ W. features (basins, banks, and channels), delineated by the line connecting the 43°43.64′ N ...... 69°37.58′ W. geographic coordinates and landmarks 43°41.44′ N ...... 69°45.27′ W. oceanic fronts, density gradients, and ° ′ ° ′ temperature regimes; low flow velocities identified herein: 43 36.04 N ...... 70 3.98 W. 43°31.94′ N ...... 70°8.68′ W. in Jordan, Wilkinson, and Georges (i) The southern tip of Nauset Beach ° ′ ° ′ ° ′ ° ′ 43 27.63 N ...... 70 17.48 W. Basins that allow diapausing C. (Cape Cod) (41 38.39 N/69 57.32 W) 43°20.23′ N ...... 70°23.64′ W. finmarchicus to aggregate passively (ii) From this point, southwesterly to 43°4.06′ N ...... 70°36.70′ W. below the convective layer so that the 41°37.19′ N/69°59.11′ W 43°2.93′ N ...... 70°41.47′ W. copepods are retained in the basins; late (iii) From this point, southward along stage C. finmarchicus in dense the eastern shore of South Monomoy (x) From this point (43°2.93′ N/ aggregations in the Gulf of Maine and Island to 41°32.76′ N/69°59.73′ W 70°41.47′ W) on the coast of New Georges Bank region; and diapausing C. (iv) From this point, southeasterly to Hampshire south of Portsmouth, the finmarchicus in aggregations in the Gulf 40°50′ N/69°12′ W boundary of the specific area follows the of Maine and Georges Bank region. (v) From this point, east to 40°50′ N coastline southward along the coasts of (2) Unit 2. The physical features 68°50′ W New Hampshire and Massachusetts essential to the conservation of the (vi) From this point, northeasterly to along Cape Cod to Provincetown North Atlantic right whale, which 42°00′ N 67°55′ W southward along the eastern edge of provide calving area functions in Unit 2, (vii) From this point, east to 42°00′ N Cape Cod to the southern tip of Nauset are: 67°30′ W Beach (Cape Cod) (41°38.39′ N/ (i) Sea surface conditions associated (viii) From this point, northeast to the 69°57.32′ W) with the exception of the with Force 4 or less on the Beaufort intersection of the U.S.-Canada area landward of the lines drawn by Scale, maritime boundary and 42°10′ N connecting the following points:

42°59.986′ N ...... 70°44.654′ W ...... TO Rye Harbor. 42°59.956′ N ...... 70°44.737′ W ...... Rye Harbor. 42°53.691′ N ...... 70°48.516′ W ...... TO Hampton Harbor. 42°53.516′ N ...... 70°48.748′ W ...... Hampton Harbor. 42°49.136′ N ...... 70°48.242′ W ...... TO Newburyport Harbor. 42°48.964′ N ...... 70°48.282′ W ...... Newburyport Harbor. 42°42.145′ N ...... 70°46.995′ W ...... TO Plum Island Sound. 42°41.523′ N ...... 70°47.356′ W ...... Plum Island Sound. 42°40.266′ N ...... 70°43.838′ W ...... TO Essex Bay. 42°39.778′ N ...... 70°43.142′ W ...... Essex Bay. 42°39.645′ N ...... 70°36.715′ W ...... TO Rockport Harbor. 42°39.613′ N ...... 70°36.60′ W ...... Rockport Harbor. 42° 20.665′ N ...... 70° 57.205′ W ...... TO Boston Harbor. 42° 20.009′ N ...... 70° 55.803′ W ...... Boston Harbor. 42° 19.548′ N ...... 70° 55.436′ W ...... TO Boston Harbor. 42° 18.599′ N ...... 70° 52.961′ W ...... Boston Harbor. 42°15.203′ N ...... 70°46.324′ W ...... TO Cohasset Harbor. 42°15.214′ N ...... 70°47.352′ W ...... Cohasset Harbor. 42°12.09′ N ...... 70°42.98′ W ...... TO Scituate Harbor. 42°12.211′ N ...... 70°43.002′ W ...... Scituate Harbor. 42°09.724′ N ...... 70°42.378′ W ...... TO New Inlet. 42°10.085′ N ...... 70°42.875′ W ...... New Inlet. 42°04.64′ N ...... 70°38.587′ W ...... TO Green Harbor.

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42°04.583′ N ...... 70°38.631′ W ...... Green Harbor. 41°59.686′ N ...... 70°37.948′ W ...... TO Duxbury Bay/Plymouth Harbor. 41°58.75′ N ...... 70°39.052′ W ...... Duxbury Bay/Plymouth Harbor. 41°50.395′ N ...... 70°31.943′ W ...... TO Ellisville Harbor. 41°50.369′ N ...... 70°32.145′ W ...... Ellisville Harbor. 41°45.53′ N ...... 70°09.387′ W ...... TO Sesuit Harbor. 41°45.523′ N ...... 70°09.307′ W ...... Sesuit Harbor. 41°45.546′ N ...... 70°07.39′ W ...... TO Quivett Creek. 41°45.551′ N ...... 70°07.32′ W ...... Quivett Creek. 41°47.269′ N ...... 70°01.411′ W ...... TO Namskaket Creek. 41°47.418′ N ...... 70°01.306′ W ...... Namskaket Creek. 41°47.961′ N ...... 70°0.561′ W ...... TO Rock Harbor Creek. 41°48.07′ N ...... 70°0.514′ W ...... Rock Harbor Creek. 41°48.932′ N ...... 70°0.286′ W ...... TO Boat Meadow River. 41°48.483′ N ...... 70°0.216′ W ...... Boat Meadow River. 41°48.777′ N ...... 70°0.317′ W ...... TO Herring River. 41°48.983′ N ...... 70°0.196′ W ...... Herring River. 41°55.501′ N ...... 70°03.51′ W ...... TO Herring River, inside Wellfleet Harbor. 41°55.322′ N ...... 70°03.191′ W ...... Herring River, inside Wellfleet Harbor. 41°53.922′ N ...... 70°01.333′ W ...... TO Blackfish Creek/Loagy Bay. 41°54.497′ N ...... 70°01.182′ W ...... Blackfish Creek/Loagy Bay. 41°55.503′ N ...... 70°02.07′ W ...... TO Duck Creek. 41°55.753′ N ...... 70°02.281′ W ...... Duck Creek. 41°59.481′ N ...... 70°04.779′ W ...... TO Pamet River. 41°59.563′ N ...... 70°04.718′ W ...... Pamet River. 42°03.601′ N ...... 70°14.269′ W ...... TO Hatches Harbor. 42°03.601′ N ...... 70°14.416′ W ...... Hatches Harbor. 41°48.708′ N ...... 69°56.319′ W ...... TO Nauset Harbor. 41°48.554′ N ...... 69°56.238′ W ...... Nauset Harbor. 41°40.685′ N ...... 69°56.781′ W ...... TO Chatham Harbor. 41°40.884′ N ...... 69°56.28′ W ...... Chatham Harbor.

(xi) In addition, the specific area does Island; thence to Bakers Island Light; following points in the order stated from not include waters landward of the 72 thence to Marblehead Light. north to south. COLREGS lines (33 CFR part 80) as (C) Hull, MA to Race Point, MA—(1) described in paragraphs (b)(1)(xi)(A), A line drawn from Canal Breakwater N Latitude ...... W Longitude ° ′ (B), and (C) of this section. Light 4 south to the shoreline. 33 51 ...... at shoreline 33°42′ ...... 77°43′ (A) Portland Head, ME to Cape Ann, (xii) The specific area does not include 33°37′ ...... 77°47 MA—A line drawn from the inshore areas, bays, harbors and inlets, 33°28′ ...... 78°33 northernmost extremity of Farm Point to as delineated in paragraphs (b)(1)(x) and 32°59′ ...... 78°50′ Annisquam Harbor Light. 32°17′ ...... 79°53′ (xi) of this section. ° ′ ° ′ (B) Cape Ann MA to Marblehead 31 31 ...... 80 33 (2) Unit 2. Unit 2 includes marine 30°43′ ...... 80°49′ Neck, MA—(1) A line drawn from waters from Cape Fear, North Carolina, 30°30′ ...... 81°01′ Gloucester Harbor Breakwater Light to southward to 29°N latitude 29°45′ ...... 81°01′ the twin towers charted at latitude (approximately 43 miles north of Cape 29°00′ ...... at shoreline 42°35.1′ N. longitude 70°41.6′ W. Canaveral, Florida) within the area (2) A line drawn from the bounded on the west by the shoreline (c) Overview maps of the designated westernmost extremity of Gales Point to and the 72 COLREGS lines, and on the critical habitat for the North Atlantic the easternmost extremity of House east by rhumb lines connecting the right whale follow.

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North Atlantic Right Whale Critical Habitat Proposed Northeastern U.S. Foraging Area Unit 1

ME

.Augusta

44"N NH

71"W 69'W 68"W

cs:::J Proposed Critical Habitat ... ,.·\...... 200m Depth Contour

This map is provided for illustrative purposes only of proposed North Atlantic right whale critical habitat For the precise legal definition of critical please refer to the narrative r~"'''"""tt''n

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[FR Doc. 2015–03389 Filed 2–19–15; 8:45 am] BILLING CODE 3510–22–P

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