Loading...
HomeMy WebLinkAboutResolution No. 2007-51Suggested by: Administration CYTY OF KENAI RESOLUTION NO. 2007-51 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, OPPOSING THE PROPOSED LISTING OF COOK INLET BELUGA WHALES UNDER THE ENDANGERED SPECIES ACT (ESA). WHEREAS, on April 20, 2007, the National Marine Fisheries Service (NMFS) (published proposed rule 72 FR 19854) to list the Cook Inlet beluga whale as an endangered species; and, WHEREAS, the sole documented cause of the population decline of Cook Inlet beluga whales was caused by subsistence harvest; and, WHEREAS, legislation developed by Senator Ted Stevens has resulted in the harvest of one to two animals per year under a co-management agreement; and, WHEREAS, though the NMFS August 2005 survey observed "unusually high numbers of juveniles and calves were present with white adult belugas" it is difficult, if not impossible, to see and count juvenile belugas from an airplane, making it impossible to develop a precise population estimate; and, WHEREAS, it is easier to count the whales when they reach five to eight years of age; and, WHEREAS, NMFS lacks sufficient data to justify a listing at this time; and, WHEREAS, critical habitat designations will likely coincide with an ESA listing and pose negative impacts to human activities in and around Cook Inlet to shipping, oil and gas exploration, development and production, wastewater utility discharges, commercial and industrial coastal development, and commercial, sport, and personal use fishing; and, WHEREAS, an ESA listing will lead to increased limitations on existing operations and future development in and around Cook Inlet, without clear corresponding benefits to the population of beluga whales. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, the City of Kenai opposes the proposed listing of Cook Inlet beluga whales under the Endangered Species Act and copies of this resolution will be forwarded to the Resolution No. 2007-51 Page 2 of 2 National Marine Fisheries Service, Alaska Congressional Delegation, Oovernor Sarah Palin, Senator Tom Wagoner, and Representatives Mike Chenault and Kurt Olson. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 18th day of July, 2007. - ~~-~' ~ PAT PORTER, MAYOR ATTEST: ~'///~//+f}~ Carol L. Freas, City Clerk Cook Inlet Beluga Whale Proposed Listing Under the Endangered Species e4ct (ESA) Individual andlor Group Position ReasonlOther Information U.S. Senator Ted Stevens O osed Premature, pushed by extreme environmentalists. Staff is preparing written position/statement prior to close of comment period. U.S. Senator Lisa Murkowski Opposed U.S. Representative Don Young O osed Governor Sarah Palin Opposed Vigorously opposed. Questions DPS (distinct population segment). Staff is preparing written position/statement prior to close of comment period. State Senator Tom Wagoner Out of Office State Re resentative Kurt Olson Out of Office State Re resentative Mike Chenault O posed Cook Inlet Re ion, Inc, O osed Not supported by science, undue restriction on development. Preparing statement of opposition similar to position of the Resource Development Council (RDC) Salamatof Native Association Have not had call returned Kenaitze Indian Tribe IRA Meeting July 13th to establish position Kenai Peninsula Borough O osed Lack of supported science justifying listing Resource Development Council Opposed See attached documentation ~~`"~°"° UNITED STATES DEPARTMENT OF COMMERCE <~ G~i ~^~ National Oceanic and Atmospheric Administration F,~ National Marine Fisheries Service ~«°~'+`~ P.O. Box 21668 ~~~ ~~~ Juneau, Alaska 99802-1668 ~~~ June 18,2007 Mayor (Ms) Pat Porter 210 Fidalao Ave Kenai, AK 99611 Dear Ms. Porter: !/ This letter is to inform you of the recent publication in the Federal Register (72 FR 19854) of the proposed rule to list Cook Inlet beluga whales as endangered under the Endangered Species Act. The fiill text of the proposed rule is enclosed. The National Marine Fisheries Service (NMFS) has extended the public comment period until August 3, 2007. We invite your comments. In addition. NMFS will be holding two public hearings in Alaska on the proposed rule regarding the potential listing of theCook Inlet beluga whale. A hearing is scheduled for Anchorage on July 20, 2007 (3:30-6:30 pm in the Loussac Library, 3600.Denali Stj; the other is scheduled for Homer on Jt~1y 19, 2007 (6:00 - 9:00 pm in the FWS Island and Ocean Center). The public hearings will also be announced in local newspapers prior to the meetings. Further information on the proposed listing can be found on our website at www.fakr.aioaa.6ov (under Protected Species/whales/beluga whales). We look forward to receiving your comments on this proposed rule. Sincerely, Kaja rix Assistant Regional Administrator, Protected Resources Enclosure FR Notice 72 FR 19854 FR Notice Comment Period Extension ~• ~ ~ Q s e ALASKA REGION - WWW.FffICt.[5033.g0V 30534 Federal Register/Vol. 72. No. 105/Fride}h June 1, 2007/Proposed Rules contain env ^nfunded mandate or significantl}+ or uniquely affect small -, govl~+rnments, es described in the '' Unfunded Mandates Reform Act of 1995 (Pub, L. 104-4). This proposed cute also noes not !lave a substantial direct effort on one or more Indian tribes, nn the relationship between the Federal Government and Indian tribes, or o^ Che distribution of power and responsibilities between the Federal Government and Indian tribes, as. specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it hate substantial direct effects on the States, on the relationship between the national government and the States, or. o^ the distribution of Dower and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rote implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, Apri123, 1997), because it auproves a state rule implementing a Federal standard. In reviewing SiP submissions, EPA's rote is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authorify to disapprove a SIP submissimr for failure to use VCS. It would thus tie inconsistent with applicable (aw for EPA, when it reviews a SIP submission, to use VCS in place of a S[P submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirraments of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 IJ.S.C. 27'L note) do not apply. As required 6y section 3 of Executive Order 12988 (61 FR 4729, Fnbmary 7, 1996), in issuing this proposed ode, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a rieer toga, standard for affected conduct. EPA has complied with Executive Order 1'2630 (53 FR 8859. March 15, 1988) by examining the takings implications of the rule in accordance with the `"Attorney General's Supp(omental Guidelines for the Evaluation of Risk - and Avoidance oP Unanticipated Takings" issued render the executive order. This rule proposing to approve ttre reriesignation of the Harrisburg Area to attainment fbr the 8-hour ozone NAAQS, the assooiated maintenance plan, the 2002 base-veer inventory, and the MVEBs identifiedin the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 ti.S.C. 3501 et seq.), List of Subjects 40 CFR Part 52 Environmental pratactinn, Air pollution control, iditrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic, compounds. d0 CFR Part 31 Air pollution confiol. National parks, Wilderness areas. Authority: 4't Ci.S.C. 7407 et seq. Dated: Mev 2s, zoo7. Donald S. Welsh, Regional Administrator. Region l77, (FR Doc. E7-105 B5Filed 5-;31-D7; f3:45 un] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 224 [I.D. 021607Cj Endangered and Threatened Species: Extension of Public Comment Period and Notice of Public Hearings on Proposed Endangered Species Act Listing of Cook Inlet Beluga Whales AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce,. ACTION: Extension of public comment period; nett re of puhiic hearings. SUMMARY: On April 20, 2007, NMFS proposed the listing of the Cook Inlet bsluge whale as an endangered species under the Endangered Species Act of 1973 (ESA), as amended. As part of that proposal, NMFS anncunced a puhiic comment period to and on June 19. 2007. NMFS has received requests for an extension tr, the comment period and for public hearings on this issue. In response to these requests, NMFS is extending the public comment period for the proposed listing action to August 3, 2007. Additionally, NMFS is announcing that hearings will he held at two locations in Alaska to provide additional opporhmities and formats to receive public input. DATES: The deadline for comments on Phe April 20, 2007 (72 FR 19854) proposed rule is extended from June 19, zoo7, ro Angnst 3. zoo7. ADDRESSES: We wilt hold two public hearings on this issue: one in Hooter and one in Anchorage. The dates Per those hearings will be announced in a forthcoming notice in the Federal Register. Send comments to Kaja Brix, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Comments maybe submitted by: • E-mail: ClB-ESA- Endangered r~ noaa.gov. Include in the subject lino the following document identifier: Cook hdet Beluga Whale PR. fi-mail comments, with or without attachments, are limited to 5 megabytes. • 4Vehfarm at the Federal eRulemaking Portal: wcvw.regulations.gav, Fallow the instructions at that site for submitting comments. • Mail: P. O Box 21668, Juneau, AK 99802 • Hand delivery YO the Federal Building :709 W. 9i1i SCreet, Juneau, AK. • Fax: (907)586-7557. FOR FURTHER INFORMATION CONTACT: BI'ad Smith, NNfFS, 222 West 7th Avenue, Anchorage, AK 99517, telephone (907 ) 271-6006; Kaja Bnix, NMFS, (907) 586- 7235; or Marta Hammack, (301) 713- 1407.. SUPPLEMENTARY INFORMATION: Background On April 20, 2007, NMFS published a proposed rule (72 FR 19854) to list d7e Cook Inlet beluga whale as an endangered species. This action followed completion of a status review of the Cook Inlet beluga whale which found this population to be et risk of extinction within the next 100 years. The April 20. 2007, proposed rule also describes NMFS' determination that this population constitutes a "species", or distinct population segment, under the ESA. Extension of Public Comment Period Secoral requests have been received to extend the comment period for Cho proposed listing. The comment period far the proposed listing eves to <:nd on Jrme 19, 2007. NMFS is extending the comment period until August 3, 2007, to allow for adequate opportunity for public cornme^±and participatioa in Federal Register/Vol. 72, No, 105 /Friday, June 1, 2007 /Proposed Rules 30535 uublic hearings (see DATES and ADDRESSES;. Public Hearings joint Commerce-Int[arior ESA implementing regulatimis state; that the Secrctarv shill promptly hold at least onm public hearing if amp person requests one within 45 days of publication of a proposed regulation to list a species or to designate critical habitat (see 50 CFR 42416(c)(3)). In past ESA rule-making NMPS his condunted traditional public hearings, consisting of recorded oral 'testimony from interested individuals, This format, although providing a means of public input, does not provide opportunities for dialogue and information exchange. NMPS believes that the traditional public hearing format can be improved upon by also including a brief presentation on the results of the Status Review and what may be considered topics of interes?. The preferred means of providing puhlic comment for the official record is via wri ttc;n ti+stimony prepared in xdcanco of the meeting which may also ho prrsentod orally. Hlaak "rmmnont sheets" will be provided at the meetings for those without prepared written comments, anti opportunity will also be provided for additional oral testimony. There is ^o need to nagistar for those hearings. In scheduling these public hearings, NMPS has anticipatccl that many affected stakeholders and members of the public mtav prefer to discuss the proposed listing directly with staff during the public comment period. These puhlic meetings are not the only oppnrhmity for they public to provide input on this proposal The public and stakeholders are encouraged to continue to cannnent and provide inpu4 to NMFS on Che proposal (via corraepondenre, e- mail!. and thA'"hiternet; see ADDRESSES, above; up until the scheduled cioseof the cmnmant period on August 3, `2007. References The proposed ode, status rcaiew report, maps. x List of the refaren res cited in this document. and othar materials relating to Che proposed listing can be found on the NMFS Alaska Region website http:l/ c rw'tiv. (a kr. n oa n .go v/. Authority: lFi U.S.C. 1531 et. seq. Dated: May 25, 2007, James H. Lecky, Director. O,ffire of Protected Resourras, Nnt Tonal ,~(arina Fisheries Service. FF Doc, E7-t D587 Piled 5-81-07; 8:45 ami BILLING LOGE 351 a-22-S 19864 Federal Register /Vol. 72, No. 76 /Friday, April 20. 2007 /Proposed Rules Ftooding source(s) 'e'levation in feet (NCaVD)I. I, +Elevation In feet (NAND) '; k Depth In feet above ~ Communltles affected Location of referenced elevation ground ~' '~ Effective Modified ... ~ At the confluence with West cork Sandy Run .... ~I None ! +825 i Rutherford County funin- Tributary 7 . ......... y ~:. corporated Areas). Approximately 0.9 mile upstream of ;he confluence None +842 with Weat Fork Sand Run. 'National Geodetic Vertical Datum. +Nonh American Vertical Datum. i; Depth in feet above ground ADDRESSES Town of Bostic Maps are available for inspection ai the Bostic Town Hall, 104 Pearidge Road, Bostic, North Carolina. Send comments to The Honcrable Mitch Harrill, Mayor of the Town of Bostic, 177 South Main Street, Bostic, North Carolina 28018. Town of Forest City Maps are available for inspection at the Forest City Town Hall, 128 North Powell Street, Foresi City, North Carolina. Send comments to Mc Charles Summey, II, Forest City Town Manager, P.O. Box 728, Forest Ciry, North Carolina 28043. Town of Lake Lure Maps are available for inspection at the Lake Lure Town Hall, 2948 Memorial Highway, Lake Lure, North Carolina. Send comments to The Honorable Jaynes Proctor, Mayor of the Town of Lake Lure, P.O. Box 255. Lake Lure, North Carolina 28746. Town of Ruth Maps are available for inspection at the Ruth Town Hall, 199 Northview-Dorsey Street, Ruth, North Carolina. Send comments to The Honorable Don Baynard, Mayor of the Town of Ruth, 108 Ncrthview-Dorsey Street, Ruth, North Carolina 28139. Town of Rutherfordton Maps are available for inspection at the Rutherfordton Town Hail, 129 North Main Street, Rutherfordton, North Carolina. Send comments to The Honorable Sally Lesher, Mayor of the Town of Rutherfordton, 447 North Washington Street, Ruthedordion, North Caro- lina. Towm of Spindale '.. Maps are available for inspection at the Spindale Town Hall, 104 Reveley Street, Spintlale, North Carolina. Send comments to The Honorable Mickey Bland, Mayor of the Town of Spindale, P.O. Box 186, Spindale, North Carolina 28160. Unincorporated Areas of Rutherford County Maps are available for inspection at the Rutherford County Building and Inspections Department. 289 North Main Street, Rutherfordton, North Carolina. Send comments to Mc John Condrey, Rutherford County Manager, 269 North Main Street, Rutherfordton, North Carolina 28139. Village of Chimney Rock Maps are available for inspection at the Village of Chimney Rock Office, 109 Terrace Drive, Chimney Rock, North Carolina. Send comments to The Honorable Barbara Melisky, Mayor of the Village of Chimney Rock, P.D. Box 300, Chimney Rock, North Carolina 28720. (Catalog of Federal Domestic Assistance No. 83.100. "Flood Insurance.") Dated: April 10. 2007. David I. Maurstad, Fed oral Insurnnoe ddminietrntor o,(the NaPIO11n1 Food Insuranco Progrnm, Fr±dernl L+nergency Mona~cment Agenov. Depanman [ of Hanalnnd Securih~. lFR Doc. E7-7593 filed 4-'19-U7; 8:45 am) BILLING WDa 9110-12-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 224 [Docket No. 070319062-7062-01; I.D. ozlso7C7 RIN 0648-X664 Endangered and Threatened Species; Proposed Endangered Status for the Cook Inlet Beluga Whale AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for W n11T1P,RY5. SUMMARY: bti e, NMPS, have completed a comprehensive status review of the Cook Inlet population of beluga whale (Detptlinapterus leucns) under the Endangered Species Act (ESA). Based on the findings from the status review and consideration of the. factors affecting this species, we have concluded the Cook Inlet beluga whale constitutes a distinct population segment (DPS) that is in clanger of extinction throughout its range. Accordingly, we are now issuing a proposed rule to fist the Gook Inlet behtga whale DPS as an endangered species. We are soliciting information on issues relevant to the listing of the Cook Inlet beluga whale DPS tinder the ESA. Although we are noY uroposing to designate critical habitat a{this time, wo aro also soliciting information on essential physical and biologra? features of Cook Inlet beluga whale habitat. DATES: Comments on this proposed rule must be roceived by close of businesson June. 1g, 2007. Requests for public Federal Resister/Vol. 72, tie. 76/~iday, April 20, 2007/Proposed Rules 19855 hr.arings must be made in writing 6y )tine 4. 2007. ADDRESSES: Send cmn:nents to Kaja Brix, Assistant Regional Administrntor, Protectasd Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Cmnments may be submitted bv: • E-mail CIB-ESA- Endmrgered~noaa.gov. Include in the subject line the following document identifier. Cook Inlet Beluga Whale FR. E-mail comments, with or without attachments, are li mitad to 5 megabytes. • 6Vebform at the Federal eRulemaking Portal: www.rogulaticrs.gnv. Follow the instructions at that site for submitting comments. • Mail: NMFS, P. O Hox 21668, Juneau. AK 99802 • Hand delivery to the Federal Building :NMFS, 709 W. 9+~~ Street, Juneau, AK. • Fax: (907)586-71712 Tha~proposed rule, stahts review, maps. a List of the references cited in this document, and other materials relating to this proposal can be found on 4ha NMFS Alaska Region website htrp:// wervv.fokz~.noac.gov/. FOR FURTHER INFORMATION CONTACT: Brad Smith, NMFS, 2'22 bVest 7th Avenue, Anchorage, Alaska 99517, telephone (907) 'L 71-6006; Kaje Brix, NMFS, (907) 586-7235; nr Marta Nammack, (3010 77.3-1401. SUPPLEMENTARY INFORMATION: Background On March 3, 1999, we received two petitions to list the Cook Inlet populatimt of beluga whales as endangered under the ESA. The petitioners requested that we pronndgefe an emergency listing under section 4(b)(7) of the ESA, designate critical habitat for Cook Inlet beluga whales, and take immediate action to implemm~t rulemakfng to regulate the harvest of these whales. We issued a Final Rule on May 31, 2000 (65 FR 34590), designating Cook Inlet beluga whales as depleted within the meaning of section 3(i) of the Marino Mammal Protection Act, as amended (MMPA) (below its Optimum Sustainable Population), and codified at 16 L'.S.C. 1362(1), and the underlying regulations codified at 50 CFR Part 216. However, at that timu, we determined that the Cook Inlet beluga whale DPS was not threatened or endangered tinder the ESA (65 FR 38778; June L2, 2000) because legislative and management actions had been taken to reduce suhsistenceharvests to Isvels that would allow recovery, such that the DPS didnot meet the definition of threatened ar endangered. The 2000 detanninafion that GSA listing was not warranted was premised on at Least two findings that justify ftuther review. First, the only factor then known to be responsible for the decline in beluga abundnnca was subsistence h,~trvest. Second, the 3000 Status Revieuv used sinndetion. modeling efforts Yhat demonstrated this DPS was not likely to decline further if the harvest was reduced .md an amoral increase of '? Co 6 percent wore assumed. Abundance estimates since harvest management began in 1999 have doctiried aT an average rate of 4.1 percent per year, challenging the original findings. In addition, the International Union for the Conservation of Nature and Natural Resources (IUCN) assessed the status of the Cook Inlet beluga whale in 2005 (Lowry et al., 2006). The IUCN determined that this population had a 77 percent probability of having a negative growth rate (in 2005) and met its criteria for critinatly endangered status. In consideration of the factors described above, we initiated a second Status Review for the Cook Inlet beluga whale (71 PR 14836; March 24, 2006), In the 2006 Status Review, wa developed population models that considered various types of mortality and fecundity effects in terms of the decline or growth and recovery of the Cook Inlet beluga whale DPS. [n these modals, NMFS scientists considered several effects, including: (1) An Allee affect on fecundity at small population sizes; (2) a depressed per capita fecundity or survival, as might occur from habitat degradation or pollution; (3) a constant mortality effect independent of population size, as would occur from predation; (4) a random mortality effect, as would result frmn environmental perturbations or catastrophic events such as nil spills or volcanic activity; and (5) demographic stochasticity due to reduced population size. Models with these different effects were compared to the beluga poptlation estimates from 1994 to 2005 to determine which model best matched the data, and likely outcomes wece determined for the population. Subsequently, we received a third petition to list the Cook Inlet beluga es an endangered species on April 20, 2006. That petitioner requested that we List the Cook Inlet beluga whale as endangered and designate critical habitat The petitioner reviewed the biology and ecology of this population, its abundance end distribution, its designation as a DPS established through rulemaking in lone 2000 (65 FR 38780), and the reasons for the Cook inlet beluga whale's status (organized by the factors listed in seotion 4(a) (1) of , the BSA). hi response to this petitiau, we published a 90-day finding that the petition presented substantial scientinc nr commercial information indicating that the pbtitionod action may Ire warranted (71 FR 44614; August 7, 2006). The second Status Review (NMFS. 2006) has now been completed and underlies this proposed cute. Description, Taxonomy, and Distribution Beluga whales, members ofthc Family Monodontidaa, are small, toothed whales that are white in color asndults. They are extremely social animals that era often ,found in groups numbering from tine to several hundred. Beluga whales are circumpolar in distribution and occur in seasonally ice- covered arctic and subarctic waters. Beluga whales occur along the roast of dloska, except the Southeast panhandle region and the Afeutien Islands. Five distinct stocks are currently recognized in Alaska: Beaufort Sea. eastern Chukchi Sea, eastern Bering Sea, Bristol Bay, and Cook Inlca (Angliss and Outlaw, 2005). Abundance and Trends The Cook hilet population of beluga whales has probably always numbered fewerthan several thousand animals, but has declined significantly from its hisforfcaf abundance. It is difflimdt to ancurately determine the magnitude of decline because there is no available information an the beluga whale population that existed in Cook Inlet prior to development of the south- central Alaska sub-Region, or prior to modern subsistence whaling by Alaska Natives: With no reliable abundance surveys conducted prior to the 199US, scientists must estimate historical abundance. Portions of Cook Inlet surveyed during 1979 resulted in an abundance estimate of 1,'293 beluga whales (Calkins, 7989). Those data represent the best available information on historical abundance. We began comprehensive, systematic aerial surveys on beh~ga whales in Cbok Inlet in 1993. These surveys documented a decline in abundance of nearly 50 pareent between 1994 and 1998, from xn estimate of 653 whales to 347 whales (Hobbs et al., 2000). After legislative measures v,+ern established in1999 to regulate subsistence harvests, we had expected the population to grow at a rate between 2 and 6 percent. However. abundance estimates from aerial surveys (1999- 2006) indicate this level of grosvYh did not occur. Differences in survey methods and analytical techniques prior 29866 Federal Register/Vol. 72, No. 76/Friday, April 20, 2007/Proposed Rules to thoi 1994 survey rule out a precise ;tatistica(assessment of trends using the available population estimate from 1979. Howovec a comparison of the '1,29:3 beluga. esthnate In 1979 to 302 6elugas in 2000 indicates a"percent decline in 27 antrrs, but with unspecified eonfidunce. Thts decline mrne mostlp attributed to the subsistence harvest (through 19981; however, even with the rnstrictimison this harvest, the population eantin ued to decline 4.1 percent per year. Review of"Species" Identification linderthoESA Tha ESA requires the Secretary of Cmnmeree to determine wht+ther species am endangered or threatened. The authority to list e "species" under the ESA is trbt restricted to species as recognized in format taxonomic terms, but extorjds to su6epocies and, for vertebrate taro, to DPSs. NMFS and Li.S. Piste and b1+ildlife Service (USFwS) issued a joint policy to clarify their interpretation of the phrase "distinct --population segment" far the purposes of listing, de-Listing, and reclassifying species render the ESA (61 FR 4722: February 7, 1996). The policy describes two elements to be considered in deciding whether a population segment can 6e identified as e DPS under the ESA: (i) d4screteness oP the population segment in ralotion to the remainder of the spocias to which it belongs; and (2) the significance of the populatian segment in relation to the remainder of the species to which it belongs. DPS Analysis Onder the fleet aloment of the joint DPS policy, we Eound during our previous smtus review that the Conk hilet beluga whale population is discrete because it is markedly separated from other populations of the same spocias (6u FR 38778; lane 22, '1000). Of the five stocks of beluga whales in Alaska, the Cook Inlet population was considen~ad to be Chc mast isolated, based on the degree of ge.netia differentiation and geographic distance between the Cook Inlet population and the four other beluga stocks (O'Carry-Crowe et nl., 1997; '20021. This suggested that the ALaska Peninsula is an effective physical barrier to genetic exchange. The lack of beluga observations along the southern side of the Alaska Peninsula (Ltridre et aL, 2000) also supported this conchision. Murray and Fay (19i9j elated that the Caok Inlet beluga population has bean '. isolated for sevacal thousand veacs, an ~' idea Yhat has since been corroborated by genetic data (O'Corrv-Crowe et o1., 199ij. Cinder the. second olememt, two factors we considered in determining whether this discrete populatian segment m~as signifioant to fhe remainder of the species were: Cl) persistence in an ecological setting that is unique: and (2) whether the loss of the discrete population segment would result in o significant gap in the range of the species. Cook Inlet is e unique biologi::al setting in teens of these 6elugas because it supports the soutliarnmost of the five extant beluga popuietions in Alaska, and is the only water south of the Alaska Peninsula, or within the Gulf of Alaska, which supports a viable population of beluga whales. The ecological setting of Cook Inlet is also unique in that it is characterized as an incised glociai fjord, unlike other beluga i~abifats to the north. Cook Intel experiences large tidal exchangss end is a true, estuary, will: salinities varying from freshwater at its northern extreme to marine near its entrance to the Gulf of Alaska. No similar beluga habitat exists in Alaska or elsewhere in the United States. In the 'L000 Status Review, the Cook Inlet beluga whale population segment was considered to be the only beluga population that inhabits the Gulf of Alaska, and genetic data showed no mixing with other beluga population segments. Therefore, we determined that the loss of the Cook Inlet beluga population segment ma}~ result in the complete loss of the species in the Gulf of Alaska. with little likelihood oP immigration from other beluga population segments into Cook Inlet. Because we found that the Cook bilet beluga whale population was discrete and significant, we determined that it constituted a DPS under the ESA (65 FR 38178; (une 22, 2000). Research to Support Isolation Between the Caok Inlet DP5 mid Yakutat Belugas New research has become available since the species determination in the 2000 Status Review regarding the beluga whales that occur in Yakutat Bay, Alaska. These whales were included in the previous Cook Inlet beluga whale DPS. The Yakutat group consists of 12 6elugas that are regularly observed in Yakutat Bay and have existed there as early as the 1930s (G. O'Corry-Crowe et nl.. 2006). Since the'?000 Status Review, we have obtained biopsy samples from five individual whales that provide genetic information on their relationship to other Alaska 6elugas. That evidence (NMFS, unpublished data) shows the Yakutat group demonstrates a high degree of similarity in genetic markers, indicating that naemhers of the Yakutat group likely compr4se a single lineage or family fO'Corrv-Crowe et nL. 2006). All five individuals possessed a common mtDNA haplotype (#2), a maternal Lineage that is also found within other Alaska beluga whale stocks, including the Cook Inlet DPS. white smell sample size precluded meaningful statistical analyses of differentiation, Haplotypc #2 occurs at a mach lower frequency in Gook hilet and other stocks. The samples were also analyzed for polymorphism at 8 independent microsatcllEte loci: Preliminary DNA fingerprint analysis of the samples from She five individuals indicates that These individuals share, on average. a higher proportion of alleles at these loci than the average for 6elugas in other iaraes, suggesting that the Yakutat whales may 6e rolativaly more closely related to each other than to 6elugas in other areas. As with the mtDNA analysis, small sample size precluded meaningful analyses of population structure. However, these genetic results indicate that the sampled whales differ from a condom sampleof the Gook Inlet population. This, taken with the sighting date and behavioral o6servatimis, suggests that a small group of beluga whales may reside in the Yakutat Bay region year-round, and that these whales are reproductive, have a rmique ecology. and a restricted seasonal home range. Pursuant to the DPS Policy, geographic separation can also provide an indicator that population segments ere discrete from each other. There is a large geographic separation (approximately 621 mi (1000 kmj) between the Yakutat beluga group and the Cook Inlet beluga population segment, and no records exist that show any association between these whales. Therefore, we conrludc that the Cook Inlet beluga population segment is discrete from this Yakutat beluga group. NMFS considers the via6ilit}~ of an isolated group of 13 6elugas Yo be tow. Therefore, the loss of the Cook Inlet beluga popnlation segment may result in the complete loss of the species in the Gulf of Alaska, with little Likelihood of immigration from other beluga population segments into Cook Inlet. Other beluga whale sightings have been recorded from the Gulf ot" Alaska, including Silks, Prince will tam Sound, and Kodiak Island. However. none of those individuals represent persistent groups, and, therefore, are not considered part of the Coak In1eY DPS. ~Ve have insufficient infornuttion at this time to determine whether these whales are part of the Cook Inlet DPS. Federal Register/Vol. 72, No. 76/Friday, April 20, 2t7u7!Pronosed Rules 19857 DPS Conclusion Rased on the best available scientific information, we had previously determined that Cook hilet,beluga whale is a DPS, and, therefore, a species tinder section 3('15) of the ESA (fi5 FR 38778; Juno; 22, 2000). At the time, the data were insufficient to distinguish the whales near Yakutat from the Gook Inlet population. Howover, genetic, results and the fact that the 12 belugas in the Yakutat group are regaled}+ observed in Yakutat Bay and not in Cook Inlet (O'Currv-Crowe, 2006) lead us to conclude that the Cook Inlet beluga inhales are discrete from beluga whales near Yakutat. The conclusion reached in 2000 Shet the Cook Inlet population segment is significant to the beluga whale species remains valid for the same reasons mentioned in 2000, and is further supported b}+ the informetio^ stated above regardingthe low viability of the Yakutat group and the resultant uotential far loss of beluga whales from Cook inlet. Therefore, we conclude, given the best scientific information available, the Cook Inlet beluga u+hales scan priso aDPS which is confihod to w,iters of Cook hrlet, and does not include beluga whales found in Yakutat or other Gulf of Alaska waters beyond Cook Inlet. Through this rulemaking, we propose to modify the present description of the Cook Inlet beluga whale DPS, which is considerod a species under the ESA, by removing those bol«ga whales occurring near Yakutat or outside Cook Inlet waters. Geographic Range of [he Species sightings occurred across much of nud- and upper Cook Inlet (Calkins, 1984), but in the 7990s the summer distrbution diminishod to on]v the nartharnmost portions oP Cook Inlet (Rugh et al., 2000). Mom of the hilet ~n~as usod by beluga whales during the spring, summer, and fall during the 79i0s and 19805 than is'prnsenth~ used; for instance. sightings in the Kenai River area were common, and beluga concnntrations warn reported in Trading Bay and Kachemak Ba}+ (Calkins, 1984), Such areas era rarely usod 6y belugas at the present time, oxcopt p¢rhaps in winter. To identify Cook Inlet beluga habitat use. particularly in winter, NMFS resoarchecs placed satellite positioning tags on 18 beluga whales between 1999 and 2002. Those tagged whales remained in Cook Inlet, indicating that belugas occupy Cook Inlet year round and do not display the seasonal migrations that northern beluga populations display. Considering this research and the genetic information discussed above, we conclude the present range of the Cook Inlet beluga is Limited to Cook Inlet waters north of a line from Cape Douglas to Cape Elizabeth. Extinction Risk Assessment NMFS' Status Review includes an extinction risk assessment for this DPS through a detailed population viability analysis (PVA). The extinction risk analysis used population models developed specifically for the Cook Inlot beluga whale. These age and gender- structured models included parameters specific to this beluga population (e.g. reproductive age, calving intervals, natural mortality, random stranding events, killer whale predation, managed harvests, and episodic events nu:h as oil spills). Ten thousand individual trials from the models were selected for analysis. From Yhnse, the "baseline" model fModnl A in Yha Status Review), using no threshold effects, predicted a dedlEne in 65 percent of the cases, and extinction within 300 vrars for 29 percent of the cases. The "mast likely" model (Modal H in the Status Review), which best approximated the current population (this assumed a single annual killer whale predation mortality and an unusual mortality event every 20 years), predicted the risk of ex~Yincfion as 26 percont within 700 years (Sheldon et a/., L003), The risk analysis concluded that this probability w=ould be much larger if the annual mortality ratan assumed were increased by either killer whale predation or other means, Small population viability is further compromised by the increased risk of ;n6reeding and the loss of genetic variability Through drift, which reduces thou resistance to disease and environmental change (Lacy, 1991; O'Corry-Crowe and Lowry, 1997), Estimates of genetic variation do not, at prasont, suggest that the Cook Inlet beluga whale DPS is highly inhrod or Htat a critical amount of genetic variation has boon lost fncough dr(ft (O'Corrp-Crown et al., 1997; Lowry et nL. 20D8; G. O'Corry-Crewe, unpublished data), but this population is already at a population size where evenh+al~ loss of genetic variability is expocted (Lowry et al., 20D0). Summary of Factors Affecting Cook Inlet Beluga Whales The ESA defines endangered species as a species "in clanger of extinction throughout all or a significant portion of i±s range." Section 4(e)(1j of the ESA and the listing regulations (50 CFR part 424) set forth procedures for listing species. We must determine, through the regulatory process, whether a species is endangered or threatened hncause of any one or a cmn6ination of the following factors: (1) The proscnt or threatened destruction, modfficetion, or curtailment of its habitat or range; (2) Ovecutillzation for commercial, recreational, scientific, or educational purposes; (3) Disease or predation; (4) The inadequacy of existing regulatory mechanisms; or (5J Other natural or manmade factors effecting i±s continued existence. A discussion of these factors follows. The Present or Threatened Destruction, Modification, orCur[ailment orHabitnt or Range Habitat for this species has been modified by municipal, industrial, and rt~~creational activities in upper Cook Inlet, where belugas concentrate. It is possible thatthe range of Cook Inlet 6c;hrga whales has been diminished 6y these activities, either individually or cumulatively. Rugh etol. (2000} indicated that the summer occurrence of Cook Inlet beluga whales shifted to the upper Inlot in recent decades, whereas historically, belugas were also found in the mid- to lower brier. Such a change could bedue to habitatalteretion or development, but could also be attributed to othor factors. For example, the population seduction may have resulted in Cook Intot beluga whales inhabiting only the preferred feeding areas (i.e., the upper Inlet) within their nocmal range. Therefore, the change in distribution does not necessarily reflect any reduction in habitat or habitat The range of Cook Inlet belugas has been previously defined as the waters of the Gulf of Alaska north of 58° N and freshwafer Tributaries to these waters based pn available scientific data in 2000 (65 FR 34500; Ma_V 31, 2000; MMPA Sec. 216.1a(g)). There are few beluga sightings in the Gulf of Alaska outsido Cook Inlet. Laidre et al. (2000) summarized available information on prehistoric to current distribution of belugas in the Gulf of Alaska, and, with ihp exception of Yakutat, sightings have been rare and sporadic given the extent of the survey efforts. Of 169,550 cetacean sightings recorded in the Gulf of Alaska prior to the year 2001, excluding Cook Inlet. only 44 were beluga (Laidre et nl., 2U00J, indicating they are extremely rare in the Gulf of Alaska outside Cook Inlet. Calkins (1989) describod belugas in Cook~Inlet, Prince William Sound, Yakutat Bay, and throughout the coastal waters of the Gulf of Alaska, from the northern portions of Kodiak Island to Yakutat In the 19706 and 19806, beluga 19858 Federal Register /Vol. ; 2, No. 76 / Friday, April 20, 2007 /Proposed Rules quality in the mid- to lower Inlet. No information exists that beiluga habitat has Ueon modified or curtailed to an extent drat it is likely to have caused the population declines ohstrrved within Cook Inlet, However, concern is warranted for the continued development within and along upper Cook Inlet and the cumulative effects on important beluga habitat Several significant developrneats within the upper Inlet are permitted or planned, which may have advecsa consequences. These include: ('1) Major expansion to the Port of Anchorage, which inquires filling mare than '635 acres of intertidal and subtidal habitat, with increased in-water noise from pile driving, dredging, and expanded port operations; (2) Port McKenzie expansion as a commercial port facility directly across a narrow portion of upper Cook Inlet from the Port of Anchorage; (3i the proposed Knik Arm Bridge, which would increase in-water noise with both construction end operational activities and would occupy a portion of upper Cook Inlet that is presently undeveloped and provides important beluga feeding and other habitats; and (4) construction and operation of a large coal mime and marine terminal along the west side oP ' upper Cook inlet, neaz the Native Village of Tyonek. Ongoing activities that may impact this habitat include: (1) continued oil and gas exploration, development, and production; and ('L) industrial activities that discharge or accidentally spill pollutants (e.g., petroleum, seafood processing, ship ballast, municipal wasfewater treatment systems, runoff from urban, mining, emd agricultural areas). The extinction risk assessment indicates that very small increases in mortality for this DPS have large effects on its continued existence. Destruction and modification of habitat may result in "effective mortalities" by reducing. carrying capacity or fitness for individual whales, with the same consequence to the population survival as direct mortalities. Therefore, threatened destruction and modification of Cook inlet beluga whale DPS habitat contributes to the proposed endangered status. Overutilization for Commercial, Aem'entianal, Scientific, or Educational Purposes A brief commercial vv~haling operation existed along the west side of upper Cook Inlet during the 7920x, where 751 balugas were harvested in 5 years '', (Nfahonoy and Sheldon, 2000). There was also a sport (recreational) harvest for beluga whales in Cook Inlet prior to euachnont of the MMPA in 1972. 6Ve have no record on this harvest level. Thor '1979 ~mhale survey b_y the Alaska Department of Pish and Game (Calkins, 1989) provided an abundance estimate of 7.393 whales. Although we are uncertain of the level of depiction and exploitation in 1979, this remains the largest copulation abundance estimate for the Cock Inlet beluga DPS, Hosed on this estimate, we used 1,300 balugas as the carrying rapacity in the PVA far the extinction risk assessment (Hobbs et pL, '?006). With protections offered by Che MMPA, commercial and recreational Usluga harvest no longer contribute to endangering the Cook Inlet beluga uvhale DPS. Beluga whales are also taken fbr scientir"ic purposes, but this work requires authorization under the MMPA and cannot have mare than a negligible impact on the stock. hivasive research such as behrga caprirre and tagging, and boat survey work, may temporarily displace whales from important habitats. including feeding habitat, and may rarely result in injury or mortality. The magnitude of this impact cannot be ruasmrably estimated, but we believe it is not a reason that would support a listing determination. We are not aware of app live Cook Inlet balugas currently in aquaria and used for educational purposes. Therefore, educational purposes do not contribute to the proposed endangered status. Disease or Predation A considerable amount of information now exists on the occurrence of diseases in beluga whales, including Cook Inlet balugas, and the effects of these diseases nn the species. This information is described in our draft Conservation Plan (sec http:l/i,wvw.fnkr.noaa.gov/ protectedresources/uvhales/beluga/ mmpa/draft/ conservationplnn032005.ptf~, Diseases and parasites occur in Cook Inlet behrga whales. Despite the considerable pathology that has been done on balugas, nothing indicates that the occurrence of diseases or parasites has had a measurable impact on their survival and health. Therefore, diseases and parasites are not known to be factors That have led to the current status of the Cook Inlet beluga whale DPS. Transient killer whales arc a natural predatoc on beluga whales in Cook Inlet. Killer whale sightings in the upper Inlet ('18 reported sightings in 27 years) appear to be relatively infrequent, and not all killer whales prey on marine mammals. Houvever, killer whales are thought to take at least one Cook Inlet beluga per year (Shelden et al.. 2003). Assessing the impact of killer whale orarlefion on Cook Inlet beluga whales is difficult Anendotal~reports often highlight the more sensational mortalities nn beluga ~mhales due to killer whales, thereby overemphasizing their impart. Further, some reports are from the early 1980s when beluga whales were more abundant and mare widely distributed. Consequently, the predation reports are o-f minimal value in evah:ating current killer whale impacts to the Cook Inlet beluga whale DPS. The loss of mare than one beluga whale annually could impede recovery, particularly if total mortality due to predation would bo near the r©oruitment Leval in the DPS. The best available information does not allow us to accurately quantify the mortality Level due to killer whale predation or its effect an the DPS. However, continued removal of balugas in excess of nna per veer would have a significant effect on the extinction probability for Cbe Caok Inlet beluga whale. while disease and predation ocr.ur in the Cook Inlet beluga population and may affect reproduction and sarvivat, neither appears to be a likely contributor to the o6servsd decline. However, the present low population abundance and the gregarious nature of beluga whales predispose the population to significant consequences from disease and predation, which contributes to the probability of extinction, and, therefore, to the proposed riassificationas endangered under the ESA. The Inadequacy of Existing Regulatory Mechanisms The MMPA exempts Alaska Natives from the prohibitions nn fhe taking of mocinemammals, including beluga whales. Sections 101(b)(3) and 103 of the MMPA provide for subsistence harvest regulations for marine msmmat stocks designated as depleted under that Act, after notice and administrative hearings as prescribed by the MMPA. Excessive harvests occurred before May 7999 when Public Law 106-31 required such taking of Cook [plot beluga whales occur pursuant fo a cooperative agreement between NMPS and affected Alaska Native organizations. This law, later made permanent by Public Law 'ID6-553, did not specify a. harvest level, nor present a harvest management plan. In May 2000. we designated the Cook Inlet balugas as a depleted stock :coder the MMPA. We promulgated interim harvest regulations that provided a harvest management plan from 2091 through 2004 (69 FR 17973; Aprik e, 2094). The absence of legal authority to control subsistence harvest prior to 1999 Federal Register / Voi. 7'L, No. 76 /Friday, April 20, 2007 7 Proposed Rules 19859 is considered a contributing factor to th Cook Inlet beluga wd~ete DPS decline. Annual co-management agreements have boon signed between NivIFS and the Cook [n let;vlarine Mammal Council in compliance with Public Laws 106-31 and ID6-553. 4Ve Nava tnmrkod ostensively with experts, including Native hunters, to ase the best availa6te science and traditional knowledge in our management and conservatio^ efforts. This includes workshops by NMFS, the Aieska Beluga Whale Committee, the Alaska Scientific Review Group, and the Cook Inlet Marine Mammal Council. A technical working group was appointed b}~ un administrative law judge in 3005 fo ronsidor a Cook Inlet belugaharvest nnu:egornent plan for 200ii and subsequent years that would recover Cook Inlet belugas and allow for traditional subsistence. Harvests from Yhis population have been restricted to zero, one, or two whales annually since 1999, due to cooperative efforts by Native hunters and NMFS, We are currently preparing a Draft Supplemental Environmental Impact Statement (SEIS) on the subsistence harvest management of Cook Inlet belugas. This Draft SEIS will 6e followed by a Final SEIS and harvest regulations. Harvest regulations will propose a harvest strategy based on the abundance and growth of the population and a population abundance "floor" below which no harvest would occur. Despite the limited harvests since 1999 (five belugas in 8 years), the Cook Inlet beluga whale DPS has declined 4.1 percent per year. Other Nature! ar iblanmode Factors Affecting its Continued Existence Impacts of Past Subsistence Harvest Efforts The Cook Inlet beluga whale has been hunted by Alaska Natives for subsistence purposes and for traditional handicrafts. The subsistence provisions under theMMPA allow the sale of edible products and traditional handicrafts from marine mammals in Alaska Native villages, including Anchorage, or for Alaska Native consumption. Muktuk (whale skin and underlying blubber laver) from Cook Inlet belugas was sold in Anchorage markets prior to 1999, after which the practice was prohibited by co- management agreements between NMFS and the Cook Inlet Marine Mammal Council. Alaska Natives have legally harvested Cook Inlet beluga whales prior to and after passage of the MMPA in 1972. The effect of past harvest practices on the Cook Inlet beluga whale e is significant bVhile subsistence harvest occurred at unknown levels far decades, the nbsen•t:d clerline from 1994 through 1998 and the reported harvest (including estimates of whales vahich were struck but lost, and assumed to heave perished) indicated those harvest levels were unsusteiinabie. Annual subsistence take by Alaska Natfves during 1996-1998 averaged 77 whales (Angl iss and Lodge, 2002). The harvest, which was as high.as 20 percent of the population in 1996, was sufficiently high to account for the 14 peccani annual rata of dnrlino in the population during 1994 through 1998 (Hobbs et nl., 2000). [n 1999 there was no harvest as the result of e voluntary moratorium by the hunters and Public Law 106-3'1. Harvests have been greatly induced since 1998, with only five m,hales taken between 1999 and 2006. However, the subsistence removals reported during the 79906 are sufficient to account for the declines observed in this population and must be considered as a factor in the proposed rlassificatiat of the Cook hilet beluga whale DPS as endangered. Impacts of Stranding Events Cook Inlet beluga whales are known to become stranded along the shorelines and mudflats of Cook Inlet. These stranding events are not uncommon. NMFS has reports of 804 stranded whales (some of which were involved in mass stranding events) in upper Cook Inlet since 1988 (Vos and Sheldon, 2005). Mass stranding events occurred most frequently along Turnagain Arm, and often coincided with extreme tidal fluctuations ("spring tides") and/or killer whale sighting reports (Sheldon et al., 2003). Other mass strandings have been reported in the Susitna Delta (Vos and Sheldon, L005) and most recently on September 1Z, 2006, in Knik Arm (B. Mahoney, NMFS Alaska Region Office, unpublished data). Balugas are usually able to survive a stranding event and escape to deeper water on the rising tide. However, sane deaths during these avaots do ocmir. For example, in one unusual case in August 2003, at least 46 belugas stranded in Turnagain Arm for aver 10 hours, and of these, of least five whales are I:nown to have died. In a more typical case, another 58 belugas stranded in two events in Turnagain Arm the following mmtth with no identified mortalities (Vos and Siteidan, 200a ). Catastrophic mortality (thodeaths ofa large number, such as 20 percent of the population) due to a mass stranding event or other events such as ice entrapment, oil spill, or volcanic activity was considered in simulations of the Cook hsletbeluga and assigned a pmbabilitq of 5 percent per year for purposes of the status review (NMFS. 2006). Such moralih•, if it occurred. could slgnifiemrtlvimpade rerovery or farce the population below a threshold to which it wouldnot otlxerwise be vulmsra6le and from whirl. it could not recover; howovar, such catasL-ophic morta(itV has not been reported in Cook inlet. Although live mass strandings have occurred, between 1988 and 2D00 onlyl2 belugas were reported dxad out of 650 bnhtgas that stranrlec] (Vos and Sheldon, 2005). Mass stranding events era not believed to be a factor that has caused, or had a significant role in, the dorl ino of the Cook Inlet beluga whale DPS. Conservation Efforts When considering the Listing ofa species, seetfon 4(6)(i)(A) of fee ESA requires consideration of efforts bvr an_v State, foreign notion, or political subdivision of a State or foreign nation to protect such species. Such efforts would inc;htde measures by Native American tribes and organizations and local governments, and may also include efforts by private organizations. .'tlso, Federal, tribal, state, and foreign recovery actions (16 U.S.C. 1533(fJ) constitute conservation measures. On March 28, 2003, NMFS and USFWS published the final Policy for Evaluating Conservation Efforts (PECE)(68 FR 15100). The PECE provides guidance on evaluating current protective efforts identified in conservation agreements, conservation plans, management plans, ar similar documents (developed by Federal agencies, state and local governments, tribal governments, businesses, organizations, and individuals) that have not yet been implemented or have been implemented but have not yet demonstrated effectiveness. The PECE establishes two basic criteria for evaluating current conservation efforts (1) the certainty that the conservation affects will be implemented, and (2) the certainty that the efforts will be effective. The PECE provides specific factors tinder these two basic criteria that direct the analysis of adequacy and efficacy of existing conservation efforts. Cook Inlet beluga whales benefit from protections afforded by the MMPA. The Cook Inlet behtga whale was designated as a depleted stock under the MMPA in 2000, and a draft Conservation Plan was published (70 FR 12853; March 1fi. 2005). That conservation elan is compte6ensive and provides recommendations to foster recovery. While some recommendations are fimded, many recommendations are ggggp Federal Register / Vol. 72, No. 76 / Frida}+, April 20, 2007 /Proposed Rules unfunded. Therefore, it is uncertain bhuther these behrge conservation :roasures will beinrplemented. Federal lain' (Public Law 106-G53) prohibits the taking of Cook Inlet beluga whales except through a cooperative agreement between NMFS and affected Alaska Native organizations. Presently, co- managomant agrae;ments are signed annually with the Cook Inlet Marine Mamma[ Council to establish strike (harvest) limits and set forth requirements intended to minimize waste and prevent unintentional harassment. Harvest regulations ¢re being considered to address the management of Cook Inlet beluga subsistence Ynmting. Once implemented, these regulations will constitute ¢n effective conservation plan regarding Alaska Native subsistence harvest They will ^oY, however, bo comprehensive in addressing the many other issues now conhonting Cook inlet belugas. VJe are not aware of ccrseT`~ation efforts undertaken by foreign nations specifically to protect Cook Inlet beluga uvhales. We support all conservation efforts currently in effect; however, these efforts lack the certainty of implementation and nffectivencss so as to have removed or reduced threats to :Cook Inlet belugas. In developing our " final listing determination, we will consider the best available information concerning these conservation efforts and any other protective efforts by states or local entities for which we have information (See description of PECE above). Proposed Listing Determination We have reviewed the extinction risk analysis for the Cook Inlet beluga whale, considered the factors in section 4(a)(1) of the ESA, and taken into account conservation efforts to protect the species. VVe conclude thabthe Cnok Inlet beluga whale is in danger of extinction throughout all of its range because of: present or threatened destruction, modification or curtaihnent of habitat or range; the inadequacy of existing regulatory mechanisms (largely the past absence of regulations on subsistence harvests); disease and/or predation (further predation by killer whales can be shown to have a significant impact on survival); and other natural and mamnade factors affecting its continued existence (effects of past subsistence removals). See the "Factors Affecting the Species" sectimr above Fora description of the specific risks `. associated with section 4(a)(1j. This endangered determination is supported by the results of population modeling which indicate a probability of oxtination (for what is considered the most realistic scenario) of l6 percent vv+ithi^ the next 100 years. W e convened a workshop in February ?000 to develop ESA recovery criteria for large whales. That m+orkshop concluded that a rnasonablo, conservative. definition for endangered status would 6e a probability of extinction greater than or equal to 1 percent in 1D0 years. While that threshold may be conservative, the significantly greater extinction risk of 26 percant in '100 years modeled for the Cnok lnlot beluga provides a strong justification For endangered status. Further the factors confounding rocaverti•~ have eat bean thoroughly identified and may continue to persist ant 41 more is known and corrective actions can he taken. We also conclude that, at present, no protective ac conservation measures ere in piaoe that will substantially mitigate the factors affecting the future vinbility and recovery of the Cook Inlet beluga whale DPS. Based on the best available scientific and commercial information.. we propose that the Cook inlet beluga whale he listed raider the ESA as an endangered species. Prohibitions and Protective Measures (Federal tmd nun-federal) for scientific purposes nr to enhance the propagation or survival of a listed spoeios. Actlviti¢s potentially requiring a section ~o(al(1)(A) rasearrhJonhancernont permit if Cnok Inlet beluga whales ace listed include scientific research that iargetsCook Inlet beluga whales. Under suction 10(a)(1)(B), the Secretary may permit takings otherwise prohibited by section 9(a)(1)(B) if snob Making {s incidental to, and not the purpose oP, the carrying out of an otherwise lawful activity, provided that the requirements of section 10(a)(2) are met. Critical Habitat S¢;ction 3 of the ESA defines critical habitat as "(i) the specific areas within fl'te geographical area occupied by the species. of the time 4t is listed....on which are found those physical or biological features (I) essential to the conservation of the species and ([I) which may require apecia] management considerations or pmYaction; and (ii) specific areas outside the geographical area occupied 6y the species at the time it is listed...upon a determination by the Secretary thatsuch areas are, essential for the conservation of the species." Section 3 o£Yhc ESA (16 U:S.C. 1532(3)) also defines the terms "conserve," "conserving," and "conservation" to moan "to use and the use of all methods and procedures which are necessar}' to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no logger necessary." Section 4(a)(3) of the ESA requires that, to the extent practicable and determinable, critical habitat be designated concurrently with the listing of a species. Designation of critical habitat must 6e based on the best scientific data available and must take into ronsiduration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critioal habitat is designated. section 7 of the ESA requires Federal agencies to ensure that they do not fend, authorize. or carry out any actions that ace Likely to destroy or adversely modify that habitat. This requiremmrt is in addition to the section 7 requirement that Federal agencies ensrue their actions do not janpardize the continued existence of the species: In determining what areas qualify as critical habitat, 50 CFR 424.12(6) requires that NMFS "consider those physical or biological features that are essential to the conservation of a given species including space for individual and population growtl: and for normal behavior, food, water, sir. light, minerals, or other nutritional or Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Section 7(a)(2) of the ESA requires Federal agencies to consult with NMFS to ensure that activities they authorize, fetid, or carry out are not likely to jeopardize the continued existence of a listed species ar to destroy or adversely modify critioal habitat. Under Seotion 7(a)(4), Federal agencies must confer with us on any of these activities to ensure that any such activity is not likely to jeopardize the continued existence of a species proposed for listing or destroy or adversely modify proposed critical habitat. Examples of Federal actions that may affect the Cook IIileT beluga whole include permits and authorizations relating to coastal development and habitat a]Ceratian, oft and gas development (including seismic nxpioratinn), toxic waste and other pollutant discharges, Federal fishery management plans, and cooperative agreements foe subsistence harvest. Sections ? 0(a)(1J(A) and (B? of the ESA authorize NMFS to grant exceptions to the ESA's Seotion 9 take prohibitions. Seotion 10(a)(1J(A) scientific research and enhancement permits maybe issued to entities Federal Register/Vol. 72, No. 76/Friday, April 20, 2oD7/Proposed Rules 19861 physiological requ iremants; cover or shatter, sites for hreoding: reproduction, and remring of offspring; and habitats Phut are protected from disturbance or arc representative of the historical =rrographir.al and acologic.vl distribution of a species." Tho regulations hsther direct LAMPS to "focus on the principal biological or physical constituent elements ...that are essential fo the conservation of the species," and spc:cif•+ that the "known primary constituent elements shall be listed with the critical habitat description." The regulations identify primary constituent elements (PCEs) as including, but not limited to: "roost sites.. nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quolit}~ or quantity, host species or plant pollinator, geological formation, vegetation Yype, tide, and specific soil types." The ESA directs the Secretary of Commerce to consider theeconomic impact of designating critical habitat, andunder section 4(h)(2) the Secratar_v may exclude env area from such designation if the benefits of exclusion outweigh those of inetusion, provided that the exclusion will not result in the extinction of the species. We are considering proposal of critical ianbitat For the Cook Inlet bohiga whale.in a separate rulemaking. To assist us with that rulemaking, wa specifically request information on the economic attributes within the Cook Inlet region that could be impacted by critical habitat designation, as. well as identification of the PCEs or "essential features" of this habitat and to what extent those features may require special management considerations or protection. Public Comments Solicited We request interested persons to submit comments, information. and suggestions concerning this proposed rule. LVe solicit comments or suggestions from the public, other concerned governments and agencies, Alaska Natives, the scientific community. industry. or any other interested party. Comments era particularly sought concerning: (1) The current population status of the Cook Inlet beluga whale; (2) Biological or other information regarding the threats to this species: (3) Information on Yha effectiveness of magoing and planned conservation efforts by states or local entities; (4) Informatior, related to the identification of critical habitat and essential physical oe biological features for this species: emd (6) Economic or other relevant impacts of designation of rriticai habitat. 1'ou may sttbnut your comments and materials concerning this proposal by any one of several methods (see ADDRESSES ). The, proposed rule, maps, and other materials relating to this proposal can ba found on the NtvIFS Alaska Region website at http:// wu~rr.fnkr.noaa.gov/. Comments and information rnceivad during the commen", period on this proposed mile will be considered in the final derision whether to list the Cnok Inlet beluga whale DPS as endangered and any future proposal to designate critical habitat. for the purposes of the Paperwork Reductimr Act. E.O. 13'132, Federalism Recognizing the intent of Che Administration and Congress to provide continuing and meaningful dialogue on issues of mutual Stflta and Federal intamst, and in keooing with Department of Commerce policies, we request information. from, and will coordinate developmen*. of, this proposed ESA listing with appropriate State resource agencies in Alaska. E.O. 131 i;i. Consultation and Coordination with Indian Tribal Governments Public Hearings 50 CFR 424.16(c)(8) requires the Secretary to promptly hold at least one public hearing, if requested, withir. 40 clays of publication of a proposed regulation to list a species under the ESA. Rr;quests for public hearing must be made in writing (see ADDRESSES) by tune 4, 2007. Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information ;u~d opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's involvement in such ESA matters. Classification National Environmental Policy Act (NEPA) The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be ronsidercd when assessing species for listing. Based nn this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andras, 675 F. 2d825 (6th Cir. 1981), we have concluded that ESA listing actions are, not subject to the environmental assessment requirements of the NEPA. (See NOAA Administrative Order 216- 6.) Executive Order (E.O.J 12866, Regulatory Flexibility Act and Pnperrrork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analyses required by the Regulatory Flexibility Act are not applicable to the listing process. In addition, this rule is exempt from review under E.O. 12866. This proposed rule does not contain e collection of information requirement The longstanding and distinctive relationship between the Federal end tribalgovenrments is defined by treaties, statutes, executive orders, judicial decisiors, sad no-management agreements, which differentiate tribal governments from the other entities that dent with, or are affected by, the Federal government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations oP the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13176 - Consultation and Coordination m~ith Indian Tribal Governments -outlines the responsibilities of the Federal Government in matters affecting tribal interests. Section 161 of Public Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 108-447 (118 Stet. 3267), directs all Federal agencies to consult with Alaska Native corporations on the same basis as Indian tribes under E.O. 13175. We will contact env tribal governments or Native corporations which may be affected by the proposed action, provide them with a copy of this proposed rule, and offer the opportunity fo comment on the proposed rule and discuss any concerns they may have. References Cited A complete list of all references cited in this rulemaking can be found on our we6site at http://uvwra.fnkr.noon.govl and is available upon request from the NMFS office in Junea n, Alaska (see ADDRESSES). List of SubjecTS in 50 CFR Par[ 224 Endangered and threatened species, Resource Development Council for Alaska, Inc. Page 1 of 2 ~ I~EE~C~C.IR~.E E~,+~~'~~.T C~C~L.C~ Gfawing Alaska Thraugla ltus{sansi6la Re~auree t3rraprrient Action Alert: Cook Inlet Beluga Whale ESA Status Review Deadline for Comments: May 30, 2006 f3.DC`s Comment Letter Overview: The National Marine Fisheries Service (NMFS) has initiated a status review for the Cook Inlet beluga whale population to determine if it should be listed under the Endangered Species Act (ESA). Over-harvesting by subsistence hunters was identified as the primary factor behind the beluga stock declining by nearly 50 percent between 1994 and 1999. NMFS declared the belugas depleted under the Marine Mammal Protection Act (MMPA) in 2000. At that time, they were not recommended for listing under the ESA because the subsistence harvest was believed to have been The cause of the decline and a regulatory regime had been established to restrict the harvest. At the time, RDC intervened on NMFS' behalf in litigation questioning an ESA designation. The court sided with RDC and the agency. Due to legislation developed by Senator Ted Stevens, the subsistence harvest (the cause of the decline) is now limited to one or two animals per year under a co-management agreement. NMFS is concerned the population is not trending upward to date. However, the reason for the stagnant numbers remains a mystery to them. NMFS has not identified any development activity that impedes the recovery of the stock. If NMFS concludes the beluga should be reclassified under the ESA so soon after its declaration under the MMPA, critical habitat designations will Ilkely coincide. Critical habitat designations would pose far-reaching significant impacts to human activities in and around Cook Inlet, including shipping, oil and gas exploration, development and production, wastewater utility discharges, commercial and industrial coastal development, and commercial and sport fishing. An ESA listing will lead to additional consultations, increased costs, and time delays, without clear corresponding benefits to this stock of beluga whales. Action Requested: Please submit comments opposing the listing of Cook Inlet beluga whales under the Endangered Species Act. Encourage the National Marine Fisheries Service to spend its resources on a more accurate count of the belugas and developing a more realistic recovery schedule. Ask the agency to work cooperatively with stakeholders to identify research needs and develop a better understanding of the Cook Inlet beluga whales. In your comments, please be sure to explain the effect an endangered listing would have on you or your activities in the Inlet. Send your comments to: Kaja Brix, Assistant Regional Administrator Protected Resource Division, NMFS, Alaska Region, Attn: Ellen Walsh P.O. Box 21668 Juneau, AK 99802-1668 FAX: 907-586-7557 Email: CIB-ESA-Status-Review@noaa.gov Include in the subject line of the email the following document identifier: CT Beluga Status Review. http:!/www.akrdc.org/alerts/2006/beluga.html 7/9/2007 Resource Development Council for Alaska, Inc. Points to consider for your comments: Page 2 of 2 • An ESA listing for the Cook Inlet beluga whale is unwarranted at this time given that NMFS and the CIMMC continue to regulate the subsistence harvest -the sole documented cause for the population's decline. • NMFS is unable to accurately count the population's immature grey whales, making it impossible to develop a precise population estimate. NMFS's August 2005 survey observed "unusually high numbers of juveniles and calves were present with the white adult belugas." • NMFS Tacks sufficient data to justify a listing at this time. In fact, the agency has chosen to ignore the results of its own August 2005 survey that produced an uncorrected count higher than the estimates from the previous seven June surveys. The report also references a positive population trend indicating "unusually high numbers of juveniles and calves were present with the white adult belugas." • Critical habitat designations in upper Cook Inlet, resulting from an ESA listing, will have significant adverse effects on community and economic development without providing a corresponding benefit to the whales. • There is no scientific evidence that human factors other than subsistence harvesting have impacted the population. In fact, contaminant levels for the Cook Inlet belugas are lower than those found in similar populations elsewhere. • Rather than proceed with an uninformed ESA listing, the agency ought to identify the gaps in its understanding of the whales and aggressively pursue actions to address those information shortfalls. • Commercial and community users of the Inlet are already funding independent studies of the belugas and their habitat and are willing to work with NMFS to develop a greater understanding of the whales. • An ESA Listing will only lead to additional permitting hurdles and subsequent costs with no added benefit to the recovery of the beluga stock Deadline for Comments: May 30, 2006 Resource DevelopmenC Council for Alaska, tnc. 121 West Fireweed, Suite 250 Anchorage, AK 99503 resources@akrdc.grg, Phone: 907.276.0700 Pax: 907.7.76.3887 http://www.alsdaorg/alerts/2006/beluga.html 7/9/2007 Resource Development Council for Alaska, Inc. May 30, 2006 Gf`owripg Alaska Threaugh Ruspxrsrsib'ia Resourrte Dews~.lnpmerzt RDC's Comment Letter: Cook %nlet Beluga Whale ESA Status Review Ms. Kaja Brix National Marine Fisheries Service Protected Resources Division 709 W. 9th Street PO Box 21668 Tuneau, Alaska 99802-Y 668 Attn: Ellen Walsh Re: Status Review of the Cook Inlet Beluga Whale under the Endangered Species Act Dear Ms. Brix: Thank you for the opportunity to submit comments on the Status Review of the Cook Inlet Beluga Whale under the Endangered Species Act (ESA). The Resource Development Council (RDC) is a statewide private economic development organization with the mission to grow Alaska's economy through responsible resource development. RDC's membership encompasses all of Alaska's basic industries -oil and gas, tourism, fisheries, mining and timber. Our membership also includes construction companies, labor organizations, Native corporations, local communities and a wide variety of industry support firms. RDC members who live, recreate, and work in and around Cook Inlet are committed to the recovery of the beluga whale. Over the years, we have worked closely with our members and the National Marine Fisheries Service {NMFS) on a number of initiatives to assist in the recovery of the stock. in addition, we intervened, on behalf of NMFS in a lawsuit less than 5 years ago when the agency determined the Cook Inlet belugas should be listed as depleted under the Marine Mammal Protection Act (MMPA). Together with NMFS, we prevailed in that case. NMFS acknowledged the sole cause for the decline of the Cook Inlet Beluga Whale was the subsistence harvest and a co-management agreement was developed to limit the subsistence take of belugas to one or two animals per year. Following the court decision, RDC participated in the comment process for the beluga conservation plan and have been awaiting its release. As we indicated in our comments of Tune Z7, Z005 we continue to believe that given the beluga's life history, gestation period, age to sexual maturity, and the establishment of the co- management agreement, it is inappropriate for NMFS to so quickly abandon the conservation measures already in place under the MMPA. We therefore oppose listing the stock of Cook Inlet beluga whales as threatened or endangered under the ESA. Such a listing, so soon after NMFS' original designation under MMPA and subsequent court approval, will only lead to additional burden on economic and community development activities in and around Cook Inlet with no clear, corresponding benefit to the stock. We strongly encourage NMFS to maintain the listing under the MMPA. - The recent NMFS report from the August 2005 aerial survey reports, °Severai Natives approached belugas near Big and Little Susitna Rivers where whales were later observed by the aerial crew; unusually high numbers of juveniles and calves were present with the white adult Page 1 of 5 http://www.akrdc.org!alerts/2006/belugacomments.html 7/9/2007 Resource Development Council for Alaska, Inc. Page 2 of 5 belugas." It is obvious that juvenile belugas, which match perfectly with the color of Cook Inlet waters, are impossible to see and subsequently count from an airplane. These animals will turn white and will be easier to count when they reach 5-8 years old. At that point, they will also be closer to the age of sexual maturity and subsequently be able to help grow the population. The report also states, "The counts from August 2005 were higher than uncorrected estimates from Tune during the past seven years." Given these positive trends, a new status review seems completely unwarranted. However, the August raw counts did not lead to a larger population estimate. RDC believes the methodology for converting the raw aerial counts and the accompanying video footage of the whales to the final population estimate is poor at best. They are derived in part from methodologies used in Bristol Bay where there is significantly higher clarity to the water column. In fact, a study recently funded by Chevron to identify unique individuals by fluke patterns showed more animals in one confined area than NMFS says exist in the entire Cook inlet. Clearly, the counting methodologies need to be revised. The Agency's request for information in the Federal Register is a testament to its lack of knowledge about the whales. RDC remains disappointed at the level of research dollars that have been requested by NMFS to study the Cook Inlet beluga whales since their listing under the MMPA. On more than one occasion, RDC and our members have offered to assist the agency in securing additional federal and corporate funds to conduct such studies. Unfortunately, the only government-funded research being done on the Cook Inlet belugas is an annual survey in June along with a single August survey. This lack of due diligence is troubling. RDC has queried NMFS as to why additional satellite tracking has not been done since listing under the MMPA. The responses have been unacceptable, including lack of funding, staff time, and concern for the welhbeing of the animals. While such concerns are admirable, satellite tracking of cetaceans is a scientifically acceptable, unobtrusive, relatively inexpensive and not incredibly time intensive method to provide a better understanding of the range, demographic movements, and trends in foraging habits. We encourage NMFS to aggressively move forward with such research. Regardless of the outcome of this status review, RDC expects more research work from the Agency in the future. RDC expects all available data, including this year's June survey, will be used in making the status determination. RDC endorses the studies, funded by industry, which will be submitted for the record by the funding organizations. These include studies by Chevron, KABATA, the Port of Anchorage, and DRven Corporation. Millions of dollars of private funds are being spent annually by the private sector to better understand the role of beluga whales in the Inlet. We encourage the Agency to fallow the wording of the ESA to use "the best scientific and commercial data available" in making this decision and not unilaterally discount these studies. (Emphasis added) Specific comments with respect to NMFS' request for information (1) Current known range of the Cook Inlet be/uga whale, with a particular focus on current and historical habitat use; (2) demographic movements; (3) trends in foraging habits and seasonal prey abundance As defined in the ESA, the term "endangered species" means any species in danger of extinction throughout all or a significant portion of its range. Unilaterally stating in the federal register that "this group is a distinct population segment and thus; a separate species as defined by the ESA" is wrong. Beluga whales exist throughout Alaskan Coastal waters and by no means are they in danger of extinction throughout all or a significant portion of their range as defined by the ESA. In fact, questions exist to this day as to whether this stock is indeed a distinct population segment (DPS.) There is little to no evidence showing where these animals reside in the winter, and hence members from this stock may even intermix with Bristol Bay beluga whales. If indeed they are a DPS, it is important to remind the agency the ESA states, "The term "species" includes any subspecies of fish or wild-life or plants, and any distinct http://www.akrdc.org/alerts/2006/belugacomments.html 7(9/2007 Resource Development Council for Alaska, Inc. population segment of any species or vertebrate fish or wildlife which interbreeds when mature." If these animals are shown to interbreed with the Bristol Bay population, then this population should not be listed as a DPS. (3) trends in foraging habits and seasonaf prey abundance The conservation plan specifically states, "Whether the escapement into these rivers, having passed the gauntlet of the commercial fisheries, is sufficient for the well being of the CI beluga whales is unknown. The amount of fish required to sustain this population is unknown." The Port, KABATA, and DRven are studying seasonal prey abundance and we encourage the agency to take this data into account during the status review. We continue to urge NMFS to complete additional research to determine prey abundance and to not make significant policy recommendations without any supporting data. Until the agency is able to determine the amount of fish necessary to sustain this population, development activities should not be limited. (4) trends in environmenta! contamination As mentioned in the Draft Conservation Plan, Cook Inlet belugas have much lower concentrations of PCBs and DDT than other stocks found in Alaska, Greenland, Arctic Canada and the Saint Lawrence estuary in eastern Canada. In fact, Becker et aV. (2000) compared tissue levels of total PCBs, total DDT, chlordane compounds, hexachlorobenzene, dieldrin, mirex, toxaphene, and hexachlorocyclohexene and found the Cook Inlet beluga whales had the lowest concentrations of all: In addition, hepatic concentrations of cadmium and mercury were lower in the Cook Inlet population as compared to the Arctic Alaska populations. Unfortunately, the draft conservation plan discounts these extremely positive trends in environmental contamination by stating "the effects of lower concentrations of PCBs and chlorinated pesticides on animal health may be of less significance for the Cook Inlet animals than for other beluga .whale populations." Using contaminant levels as indicators of health when convenient is not sound science. (5) contaminant burdens in prey species, especially salmonids and eulachon Commercial, sports, and subsistence fisheries have Tong taken salmon and eulachon from Cook Inlet. Contaminant burdens have never been an issue. In fact, wild Alaskan salmon is considered the best in the world. (6) impacts caused by human recreational activities (e. g., boating) Human recreational activities such as boating or jet skiing may have a minimal impact on the whales due to their high frequency noise which is more detectable to beluga whales. However, we do not believe this is a serious threat to the Cook Inlet belugas. There is absolutely no documented evidence of harm to the whales from recreational boating. (7) current and planned activities and their possible impacts to the Cook Inlet be/uga whale (e. g., habitat modification) If indeed the population of Cook Inlet belugas was 1,300 animals in 1979, given the life history of a beluga, most of these whales would have lived most if not all of their lives with oil and gas activity, NPDES discharges, commercial fishing, vessel traffic, coastal development, etc. The whales have co-existed with all of these activities without significant impact for nearly half a century, and it wasn't until pressure from the subsistence harvest that their numbers dramatically declined. To that end, there are many activities planned for Cook Inlet. Each of these may have a small Page 3 of 5 http://www.akrde.org/alerts/2006/belugacomments.html 7/9/2007 Resource Development Council for Alaska, Inc. Page 4 of 5 impact on some beluga habitat. However, like all animals, belugas have and will continue to adapt and will ultimately not be adversely impacted by these activities. It is important to note these development activities will not occur in a regulatory vacuum, as they are strictly regulated under numerous state and federal environmental laws. Belugas have been and will continue to be an important part of state, federal, and local oversight and the associated public process. (8) efforts to protect the Cook Inlet beluga whale or improve its habitat Currently, companies operating in the Inlet are working to protect belugas. Many projects staff biologists or whaling captains to serve as observers for belugas. If one is spotted, the operations are stopped. These actions are already in place and switching to an ESA listing will provide no added benefits to the recovery of the whales. In addition, companies are currently spending upwards of $10 million to do research on beluga movement, habitat, and life history. Much of this funding may go away if a listing occurs and critical habitat is designated as companies may choose to invest elsewhere. As listed in the Federal Register the inadequacy of existing regulatory mechanisms can be reason for listing of a species under the act. The restrictions and mitigation measures in place for activities including the Anchorage Port Expansion, seismic activity completed by Veritas, piledriving at Point MacKenzie, and many others clearly indicate adequate regulatory mechanisms are in place for this stock of belugas. (9) non-human factors that may have contributed to its decline (i.e., disease, biotoxins, climatic or oceanographic regime shins) RDC continues to object to the NMFS' defined carrying capacity of 1,300 animals and we continue to question the recovery goal of 780 animals. The carrying capacity of the Cook Inlet for beluga whales has likely declined. A potential cause for this decline in carrying capacity may be the constant release of fine silts from glaciers, filling the Inlet up at a steady rate. This is documented by the increased frequency of dredging that occurs. Thus, it is likely the Cook Inlet is able to support fewer animals than may have historically been found in the Inlet. In addition, Pacific Decadal Oscillation combined with increased orca predation on many large marine mammals throughout Alaskan waters may also have an impact on the population. (SO) industry effects from oil and gas, municipal wastewater, commercial fishing, commercial shipping, etc., and associated noise. We are concerned with the implicationthat there are "industry effects from oil and gas, municipal wastewater, commercial fishing, commercial shipping, etc. and associated noise." Prior to the large subsistence harvest which decimated the population, this stock of beluga whales co-existed with all of the aforementioned activities. NMFS has no documented evidence that these activities have adversely affected the belugas. The effects from economic activities in the Cook Inlet are minimal. In fact, according to the October 19, 1999 Federal Register, NMFS reviewed "existing information on fish runs, oil and gas activities, sewage problems, and other sources of contaminants"...and found ... "the existing information suggests that beluga are not stressed by anthropogenic factors in Cook Inlet." NMFS has no documented reason to believe this situation does not remain true today. Unfortunately, in several instances throughout the draft conservation plan, NMFS offers mitigation measures "where development has impacted the beluga population." Stating as fact that development has significantly impacted the beluga population or recovery is inaccurate. There is a substantial legal and administrative track record with respect to the Cook Inlet belugas. NMFS must use sound, peer-reviewed science in determining if there is any effect from these activities, on either the initial decline or the continued recovery. Additional Points http://www.akrdc.org/alerts/2006/belugacomments.html 7/9/2007 Resource Development Council for Alaska, Inc. As mentioned in our letter of May 19, 2006, many of our members are confused regarding the overlap of the NMFS status review and the formal petition filed by the Trustees for Alaska. NMFS must clarify what the public is being asked to comment on at this point in the process - the NMFS' initiated status review or the Trustees petition. We continue to encourage the agency to synchronize the two processes together for clarity. RDC remains frustrated at the timeline NMFS has established for the completion of its conservation plan. It has been over two years since the draft conservation plan was initially released and to date, it is still not finished. There must be a priority given to completion of this document. To that end, RDC wishes to reiterate that as currently drafted, the plan's recommendations will not lead to the recovery of the Cook Inlet Beluga. Instead, the plan is likely to adversely impact a number of economic and recreational activities in and around Cook Inlet without a corresponding benefit to the beluga whale. The ESA requires the consideration of the economic impact of critical habitat designation. If indeed the Agency does determine listing is necessary, the Secretary has the authority to exclude areas from critical habitat "if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned." We encourage the exclusion of the entire Cook Inlet as it is clear with the mitigation and regulatory measures already in place under the MMPA, the extinction of the species will not likely occur. As part of our comments, we reference the May 24, 2006 Federal Register decision not to list the California spotted owl under the ESA. In its decision, the agency stated, "We found that the petitioned action was not warranted because the overall magnitude of the threats to the species did not rise to the level requiring protection under the Act." The record of decision states the "best-available data do not show statistically significant declines." According to NMFS, the Cook Inlet Beluga Whale have not shown statistically significant declines either. The spotted owl decision concludes, "Impacts.:.from activities are not at a scale, magnitude, or intensity that warrants listing and that the overall magnitude of threats...does not rise to the level that requires the protections of the Act." We encourage NMFS to consider this logic when making its decision. Finally, RDC is concerned that listing the Cook Inlet beluga whales under the ESA is a foregone conclusion. Meetings and discussions with members of NMFS' Anchorage staff indicate the strong likelihood of listing these animals under the ESA. The public process exists for a reason. Thus, at the present time, we emphatically oppose listing the stock of Cook inlet beluga whales as threatened or endangered under the ESA. Such a listing, so soon after NMFS' original designation under MMPA will only lead to additional burden on economic and community development activities in and around Cook Inlet with no clear, corresponding benefit to the stock. We strongly encourage NMFS to maintain the listing under the MMPA. Thank you for the opportunity to comment. Sincerely, RESOURCE DEVELOPMENT COUNCIL for Alaska, Inc. Resource Development Council for Alaska, inc. 121 WesC Fireweed, Suite 250 Anchorage, AK 99503 resources<dakrdc ore Phone: 907.27E.0700 fax: 907.2763H87 Page 5 of 5 http://www.akrdc.org/alerts/2006/belugacomments.html 7/9/2007 P~ p`~9 W ~ ® j 6/~^, V V ~--o c~ 3-.~~, ~v,~'+ryl~^~ ~~ ,~ ~ ~~ s~ v y Rs v ~~ c 2 ~ N ti N ~ ro '~ bq ~y G x m U ~ U ~ v N b ro Y h ~ O ~ N Cy ~ C ~_ ~ C L v ~ ~~ ~~ b .o .__ 3 v w ~ ~ ro A ~ _~ x~ J O ti Qa N ~ N ro Y ro <'_ U V O ~ O ., v d N N N u. ~ N ~y .m y v ~ 9 ~ N N ro O ~ ~ O _ \.'G' •(p ~' CYi N 'O [[~ ^O N \ O ~ ~ w ~- ~ G u [ N rGi~ y r N ~ N r~ ~~~ ox ~ J E W o Q ~ a V .x ~ o ° ;= ~' C o K G tRtl a ^ ~ ., G ro ro ~,ri ',•CO 'O z ~ v, 2 ~ z ~ .~; ~° 2 Z 2 2 2 z u a ~ ly .: o o ~ `D o ~ o ~ ~ M o ~ F E ~ N ~ p ~ y L 0 o op h N v, N a o C1 0 0 o N N o 0 ,o ~ ~ 8 ~ L 1 y q O O ~ b O O O O O ~ O ~ O ~ O ~ . E O w N H ~ ~ ' E ' N V ~ N A N Q LT-1 i h m dh' a z z M " N M z °' z ,- .. ~ ~., a o 0 0 0 0 0 0 0 0 0 0 0 0 0 Vt V) Vt O O O M N vl O ~••1 O V) v-i w o 0 0 -+ ~ -- 0 0 0 ~ c .-~ 0 0 R C ~ V V' V' V 'd' R 'ct d' eF ~ d' d' 6 0 0 ~ o 0 0 0 0 o c o 0 0 O O O O O O C O O O C O O O a ~ R > L ~+ y N °` N O O '~' v-i O M N h W ~ ' a 0 0 0 O 0 0 0 o a a ~ • " O O O O O O O a a ,~ ~, ~ N N N N N N ~ ~-+ G Q M r1 Vl ~ ~ ~ h N M W h ? L V~ d z ~ N' ~ Z h H H M M ~ . i F. uj M M 7 N d N N ~ M a @ h b N U o 7 0 ° . i ° o z 0 ~ o 0 o w ~ oo N ° N ~ Qp (~i M M i Q O V M b V ~ v ~ r, . -~ ~ ~ p V i ~ oo O o 0 z ~ i N y H M ~ ( { - O r , H ~ Vl ~ h d' M ({~ a N v ~ v T ~ ~ ~ ~ ro X y ro N V] ~ N ~ R ro 4, ~e"~ . 1 N c J ~ .`E 'C V ~ u ~ 1~ .k ~ ttl N Q G m iG yOr 1` • -~ O Y ~ N t~ yi P~ 6 yr VI ~ .~. w ua c~ °' v ~ v ~ ~ ~ is ro ro m ~ 3 v ' d ~ ~' y c m .cT 3 .G 3 .C 3 .C 3 3 ~ .o ~ o d s a ° y . b k c, °' a m m ~ ro n a m ~ '° 3 0 ` ~ c u n o 0 w x ~ w 3 m ea m m m w ra v 3 q c7 x 1 z z z N ~ ~ z z ~ z z z ~ ~ z z N r N O a0 vi V w 0 ~`? O pp O ~ N O O O O °'? O ~~ O N E ° ° ('~ °J C O O ~ P O O O O O O O O O O ~. O o E R RRR T m O M M ~ ~ . .O '. O N O M ti O O ~ O O O O O E O ~1 Vt ~ M M M 01 N ~ .--i .--~ 'Q' W 2r ~ M M b ti N M N O M M '„ z \ iG N V; ti O O O O C O O ~ O ~ ~ O O O O ~ Gs. ~ o ~ ° N o ~ 0 r+ 0 sr 0 0 ~n 0 ! ° ~ o o ~ vi o o N c N o R d' N ~ N l~ l~ t~ V <Y V d' d' V R ~ Y' E O -~ O O O O O O O O O O O O O O O O O O O O O O O O O O ~ O p L_ L W ~ O d m p~ O~ O O~ 01 O~ fq 01 M O .'. M O R O~ E C` ri O fi ~ N N ~ ~ ~ ~ ~ ~ . r ~ i N + Z N p ~ ~ ~ b o o w N C R b b Vi d C ~ ° °D N e d d m d' v `~ a ~ i ~ ~ t'-: ~ ti ~ ~ ~ Q M M N M M ~Z z ~ z M ~ C1 ~ Q Q C ~ R~ Q ~ Q O O O O O O C ~ z z z Z Z iZ _ Z O O ~ r . N~ A N ~ ~ ~ t C ~ ~ ~ v O M P b M O ~ 0 N W f. . i M . -~ M ~i ~ ~ ~ ^ ~ N ~; 1 f+ .. ~ N -. v C ~ V p ~ ~ ~ ~ ~ ~^ rj a ~ W c~"e y a`i 'm a~i o a~i `~ x ~~ p, ~ C bn C `~ ¢ d ea C C~ 'L' C ~ C ~ W o ' U R ~¢ .yG U 'm ~ Pte. t a Z p ~y ~ w tC m~ r '~ w C7 W C7 Z U ~ O ,, ~ ¢' W U ~ z v y d b ~ s 3 ~ ~ ~ ~ N CJ ti ~ N ~ ^ R y 4 y N O ~ C ~ N ~tl S N m S .^. C L a ti v V, v d, K ° ~ ~ s ~ ~ ,c .c '' 3 i 3 u ° ° ° ,~ ° ^ 8 E 3 d 3 ffi ~ 3 ~ 3 a ~ .~ ~ G ~ o w^ c o . ~ o . 0 . . ' ri x ~ x x x x ~ x ~ x x ~ s~ . Z a ,n z z ~ z z ~ ~' 0 o P i 00 v i c N O ~ c i~ ~ N . P S O ~ O N O ~ =~., ~ ~: C ^' ~ ~ ~M ~ T N i. 00 "' ~ VJ m °~ O ~., ~ V y E 0 O C O ..:e1 R N w a+ Q ~ d Q d =.o d' Cam. z _ z z z z ^,N, N v O o c O o v, o ~, ~, .. ~: W o 0 0 0 0 0 0 R N N ~ O • + O ~x wa z o 0 0 0 0 0 0 d 7 V v m y N O ~ O R N N G N N a i Vl Q Q d Q Q z z z Z z z ~ ~ M 7 U . Q d d ~ ¢' °~ vi a z z z z z z ~~ ~ U Y Y ` 4 X y Vl ~ . y R ? d R ~ O t tl t ~ ^ ~ ¢ ¢ z ¢ E w 3 d '~ q C d ~ o 0 ~ o ~ R ^ n h y 3 ~ ~ h ~ ~ v ~ V .fl ~1 C ` ~. F' .v a ~ ~ ~ ~ ~ ~ I 3 w m v ` v i n n G e G O N p °s U 3 a ti ° v b ~ ~ Vi tC z ~~ ~ U z U r~i~ ~~ v lC N ~ k ~ ~ d p II o C Vi G ~O N t~V N N h .~ U f." ,~ ~ ~ ~ G U p N b d R N ^ ~ ~ C ~ C n O y a'itl p pR^ " U ~ O r7 N U ~ R .c m'.c ~.o v o U p b v ~; C ~ o > O ,~ ~ 3 a " R y G .fib b d ~ y ~ O N 7 R $y ~ ~ ~ .~ W p ~ N p ~ U y "D U S •p > II ~; ~ ~ w~A p ~~Y~ ~~ 4 ~ '~ R p i. ppj C 4+ N "' U O i¢A R ~ ~ c ^_ n ~ O G ~ N ' II O p R v z ~. M V. R b 3 rn ~bq ti Q N a N U ~, N a ti ~ Y :° ro U .-1 Cook Inlet Beluga hale Proposed Listing Under the Endangered Species Act (ESA) Individual and(or Group Position ReasonlOther Information U.S. Senator Ted Stevens Opposed Premature, pushed by extreme environmentalists. Staff is preparing written position/statement prior to close of comment period. U.S. Senator Lisa Murkowski O posed U.S. Re resentative Don Youn O osed Governor Sarah Palin Opposed Vigorously opposed. Questions DPS (distinct population segment). Staff is preparing written position/statement prior to close of comment period. State Senator Tom Wa oner Out of Office State Re resentative Kurt Olson Out of Office State Representative Mike Chenault O osed Cook Inlet Region, Inc, O osed Not supported by science, undue restriction on development. Preparing statement of opposition similar to position of the Resource Development Council (RDC) Salamatof Native Association Have not returned call Kenaitze Indian Tribe IRA Meeting July 20th to establish position Kenai Peninsula Borough O osed Lack of supported science justifying listing Resource Develo went Council O osed See attached documentation T onek Native Village Favor T onek Native Villa e No Position Ninilchik Traditional Council Have not returned call Seldovia Village Have not returned call Munici alit of Anchora e O osed Attached osition aper Matanuska-Susitna Borough Opposed Beluga position paper Rick Koch Page 1 of 1 From: Ramseur, David S. [RamseurDS@ci.anchorage.ak.us] Sent: Wednesday, July 18, 2007 11:27 AM To: Rick Koch Subject: Beluga position paper Rick: This may be more than you need but has a fair amount of detail about our position on the beluga issue. Mayor Begich will be testifying before the NMFS hearing in Anchorage Friday afternoon on this. Let me know if you need any more. David Ramseur Chief of Staff «07BelugaPaper.doc» 7/18/2007 Municipality Of Anchorage Position Paper regarding Proposed Listing of Cook Inlet Beluga Whale July 2007 The issue: NOAA's National Marine Fisheries Service last month proposed listing the Cook Inlet beluga whale as endangered under the Endangered Species Act (ESA). Public comment sought: A public hearing is scheduled for Anchorage on July 20, 2007 from 3:30pm - 6:OOpm at the Loussac Library. NMFS is also accepting public comment on the proposed ESA listing until August 3, 2007. The Federal Register notice can be found at www.fakr.noaa.gov. This fact sheet describes the Municipality of Anchorage's current position on the proposed listing of the Cook Inlet beluga whale and also describes proactive local efforts to maintain good water quality and habitat for whales and other species. 1. Sound Science must inform decision-making. We believe that more research is needed to determine causes of the whale's decline and how best to protect the beluga whale. The Municipality of Anchorage is concerned about the decline of this genetically isolated population of beluga whales in Cook Inlet. While fully supporting the need for sound conservation and management of belugas and all wildlife species, the Municipality. of Anchorage is quite concerned about the potential wide-ranging effect of the proposed listing. We support appropriate measures to help the Cook Inlet beluga whales, and we will rely on the scientific community to provide a clearer understanding of the causes. We commit to working cooperatively with NOAA and other stakeholders, to make sure the proposed cure fits the problem. 2. Support funding for Beluga whale research: We commit to working with southcentral communities and the private sector to secure sufficient resources in support of research and study to determine the cause(s) in the decline of the Cook Inlet beluga whale. 3. Cook Inlet beluga whales are an important part of our local traditional culture and visitor economy. We live with whales in Cook Inlet and we respect and value the unique cultural role of subsistence whaling by Alaska Native people. From our coastal bike trail we can sometimes see beluga whales. Local residents enjoy watching the whales chase salmon in the Inlet's muddy water each summer. We understand that these whales and other abundant wildlife seen in our community have a positive contribution to our tourism economy. 4. John M. Asplund Wastewater Treatment Facility at Point Woronzof is operating efficiently and complying will environmental permits. Proactive environmental monitoring by the Municipality of Anchorage over the past 20 years indicate that the John M. Asplund Wastewater Treatment Facility at Point Woronzof is operating efficiently and discharges meet all regulatory and water quality standards. The Anchorage Water and Wastewater Utility has spent over $6 million of environmental monitoring, showing that the discharge results in no significant impacts to the marine environment. In the last permit renewal, EPA determined that based on the results of the effluent, water quality and biological monitoring, Cook Inlet beluga whales would not be adversely impacted by discharge from the Asplund facility. 5. An ESA listing of the beluga whale could have the following negative effect on water and wastewater ratepayers. a. Listing would increase operational cost to ratepayers for: Permitting of wastewater discharges Monitoring of wastewater discharges • Expansion of the already stringent Industrial Pretreatment program to eliminate toxic materials in sewage prior to treatment by AWWU. b. Would require special steps in Environmental Assessment for Permit Reauthorization: Would require EPA to prove that the Endangered Species would not be affected. o Detailed evaluation of "critical" habitat May require further detailed studies of whale movement and habitat use. c. Potential worst case scenarios include: Permit of existing facility would not be reauthorized • Continued authorization to discharge would require unnecessary upgrade of facilities which would cost utility ratepayers $400 to $600 Million. 6. Listing of the Beluga Whale could delay expansion of the Port of Anchorage. Anchorage is a dynamic, growing community and the sea holds our future. Our port is vital for our community and the rest of the state. The Port of Anchorage (POAj is a Commercial Strategic Seaport serving the majority of the State of Alaska. Ninety percent of all consumer goods provided to eighty percent of the state's population (along the rail belt, Aleutians, Interior Alaska, Western Alaska and the Arctic) transit through the POA. The POA also handles consumer goods for all military installations in the state and supports the rapid military deployment of the US Army's Stryker Brigade Combat Team, Aviation Task Force and Airborne Brigade Combat Team. The Porf needs to expand to maintain its strategic importance to our community and the rest of the state. Any project delays will have a negative impact on the state's economy. We believe that the Port expansion project will not jeopardize beluga whales. 2 Municipality of Anchorage Proactive Steps to Sustain good water quality and protect wildlife Industrial Pretreatment Program: AWWU administers an Industrial Pretreatment Program, required by the 301(h) waiver, to enforce the MOA sewer ordinance and prevent local industries from discharging wastes that could impact treatment performance or Cook Inlet water quality. Hazardous Waste Collection Program: The Municipality Of Anchorage Regional Landfill includes a collection facility for household hazardous waste and small quantity generator wastes. This facility helps keep harmful materials out of our sewer systems, storm drains, and landfill. AWWU partially funds the MOA hazardous waste collection facility. Last year, AWWU budgeted $366,000 for this program and other public education activities to prevent the introduction of harmful wastes into the sewer system. Salmon and Watershed Restoration and Protection Programs: The Municipality of Anchorage is actively working with over two dozen agencies and the private sector to protect and restore salmon habitat and reduce barriers to fish passage. Salmon are an important food source for Beluga whales. The city is also implementing innovative stormwater management programs to reduce contaminants from entering our storm drains. These programs include: rain gardens, redesigning snow dumps to reduce runoff, and other programs to reduce impervious surfaces in our community. • Preserving essential fish habitat: While supportive of efforts to site a landing for the Knik Arm Ferry in Anchorage, the Municipality does not support locating a landing at Ship Creek' point - in part because the mouth of Ship Creek is identified as essential fish habitat and beluga whales have been seen feeding in this area. • Mitigating construction impacts: The Port is factoring beluga whales into Port Intermodal Expansion Project - a multi-year, major transportation infrastructure expansion project to expand, reorganize, and improve the Port of Anchorage. Throughout each step of planning and execution of the project the Port is sensitive to potential environmental impacts -and of course the beluga whales are part of our overall environment in the Cook Inlet.. To that end, there are a number of actions the Port is taking specific to the beluga population (examples follow): 1. Refining existing programs and developing new systems and processes to educate its workforce on the beluga population, as well as coordinating closely with NOAA to ensure accurate reporting of beluga sightings in the vicinity of the Port. The Port will continue in the future to choose construction techniques that 3 reduce noise, monitor the Inlet for the presence of belugas and when belugas are present, and stop in-water activities until the whales move to a safe distance. 2. Consultation with NOAA to develop best practices and mitigation measures to minimize any adverse impacts that port operations and construction activities may have on the Cook Inlet beluga population. 3. Committed to conducting an underwater noise study from in- water work associated with the pile driving activities induced by the type of vibratory hammers the Port expects to use in our expansion project. 4. Developed a beluga whale monitoring program to monitor whale activity inside and outside the project footprint. Objectives of the plan are to: 1) estimate the frequency at which beluga whales are present in the port expansion project footprint; 2) characterize habitat use and behavior of beluga whales near the Port during ice-free months; 3J map in-water sound levels and attenuation with distance related to Porf background noise and pile driving activities; and 4) to inform construction crews of beluga whale proximity to expansion activities so construction can be shut down before beluga whales enter the designated radii. 5. Contracted a professional marine biology firm to conducted pre- construction monitoring in July 2005 until ice flow shut down, and again in spring until July 2006, where they transitioned to construction monitoring. Basic sighting information included date, time, number of whales sighted by age class (adult, sub-adult, calf, estimated by color), heading, primary and secondary activity, location, and group swimming formation. In addition, detailed data were collected regarding the locations, movements, and behavior of beluga whales near the Port. Monthly progress reports and annual reports are required by the monitoring contractor and are available on the Port website (http:!/www.portofanchorageora/library.htmlj. 6. Implemented a notification procedure to inform the construction manager of whale presence. The construction manager will order a work shutdown when the established criteria are met. In addition, MARAD construction contracts require an additional whale monitoring program by the construction contractor. Before a contractor or new personnel begin working at the POA, they are provided a letter from the Deputy .Director of the Port requesting their participation in the whale sighting and reporting process. These notification forms will be submitted to NOAA/NMFS within 24 hours of each sighting event. 4 Going forward, the Municipality of Anchorage commits to continuing these and other proactive efforts to help protect beluga whales. Specific actions include: • Sustain important local programs and ensure they are adequately funded: o Ensure that AWWU fully funds the industrial pretreatment program. o Upgrade and expand, as necessary, the Household Hazardous Waste Collection Facility at Highland Rd. o Enhance Municipal actions to reduce non-point source pollution and stormwater runoff into Cook Inlet. o Continue actions to restore creeks and salmon habitat. • Ensure that construction and industrial activity in Cook Inlet avoid impacts to beluga whales including o Adjust timing of pile driving and other actions that result in noise and other potential impacts to the whale. o Work with other communities in Cook Inlet to fund ascience-based Cook Inlet Beluga Watch program in order to monitor the whales. o Sustain an open and on-going dialogue with NOAA and other resources agencies concerned about the whale's population o Encourage early communication with these resource agencies during the design phase of future projects. • Create a Cook Inlet beluga whale working group. Bring together agencies, the private sector and community groups to provide a focus for discussion, information sharing, offer guidance td the Municipality of Anchorage. Produced by Office of Mayor Mark Begich, July 2007 5