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Listing Endangered and Threatened Species and Designating Critical Habitat: Petition To List Southern Resident Killer Whales
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 13, 2001 (Volume 66, Number 156)]
[Proposed Rules]
[Page 42499-42501]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au01-31]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223, 224 and 226
[Docket No. 010731194-1194-01; I.D. 070601B]
Listing Endangered and Threatened Species and Designating
Critical Habitat: Petition To List Southern Resident Killer Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of finding; request for information.
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SUMMARY: NMFS received a petition to list the Eastern North Pacific
Southern Resident stock of killer whales (Orcinus orca) as endangered
or threatened species under the Endangered Species Act (ESA) and to
designate critical habitat for this stock under that Act. NMFS
determined that the petition presents substantial scientific
information indicating that a listing may be warranted and will
initiate an ESA status review. NMFS solicits information and comments
pertaining to these killer whale populations and their habitats and
seeks suggestions for peer reviewers for any proposed listing
determination that may result from the agency's status review of the
species.
DATES: Information and comments on the action must be received by
October 12, 2001.
ADDRESSES: Information and comments on this action should be submitted
to Chief, Protected Resources Division, NMFS, 525 NE Oregon Street--
Suite 500, Portland, OR 97232. Comments will not be accepted if
submitted via email or the internet. However, comments may be sent via
fax to (503) 230-5435.
FOR FURTHER INFORMATION CONTACT: Garth Griffin, NMFS, Northwest Region,
(503) 231-2005 or Tom Eagle, NMFS, Office of Protected Resources, (301)
713-2322 ext. 105.
SUPPLEMENTARY INFORMATION:
[[Page 42500]]
Electronic Access
Reference materials regarding this rule can also be obtained from
the internet at http://www.nwr.noaa.gov.
Background
On May 2, 2001, NMFS received a petition from the Center for
Biological Diversity, Center for Whale Research, The Whale Museum,
Ocean Advocates, Washington Toxics Coalition, Orca Conservancy,
American Cetacean Society, Friends of the San Juans, People for Puget
Sound, Cascade Chapter of the Sierra Club and Ralph Munro, to list the
Eastern North Pacific Southern Resident stock of killer whales as an
endangered or threatened species under the ESA. The petitioners further
requested concurrent designation of critical habitat for this species
in accordance with the ESA. On July 16, 2001, NMFS received a letter
from the petitioners asking NMFS to add Project SeaWolf as an
additional co-petitioner. Copies of this petition are available from
NMFS (See ADDRESSES).
The petition presents detailed narrative information, based on the
available data from the annual killer whale censuses, that show that
the stock (as defined) has gone through periods of growth and decline
from a low of fewer than 70 animals in 1973 to a high of 97 individuals
in 1996 followed by period of decline to 82 individuals at the
beginning of 2000. The petition further describes the killer whale's
distribution worldwide and provides arguments for further delineating
Southern Resident killer whales as a distinct population segment. The
arguments include morphological, dietary, behavioral and genetic
differences between groups of killer whales in the Pacific Northwest,
and exclusive utilization of summertime home range. Additional
arguments are presented based on regional cultural significance and
management status under the Marine Mammal Protection Act (MMPA).
Variability in recruitment and survival, reduced food resources,
residual effects from live captures in the 1960s and 70s on the current
age and sex structure of the population, behavioral changes associated
with increased whale watching disturbance, and increased levels of
toxic contaminants are highlighted as possible threats faced by the
species. The petition includes a population viability analysis,
distributional maps, and a bibliography of supporting documentation.
Prior to receiving the petition, and in response to concerns raised
over a recent decline in the number of Southern Resident killer whales,
NMFS convened a workshop in April 2000 to review the status of ongoing
killer whale research, help coordinate future research efforts and
discuss many of the same issues raised in the petition. Workshop
participants presented and discussed information on killer whale
population dynamics, status of adjacent killer whale communities,
genetic evidence of stock structure, bioaccumulation of contaminants,
increased whale watching pressure, and prey availability. Census
counts, begun in 1974 using photo-identification methodology, revealed
fluctuations in the number of whales from year to year and allowed the
documentation of individual births and deaths within the Southern
Resident stock. Analysis of the available genetic data showed that the
Southern Resident killer whales are genetically distinguishable from
the northern resident stock, the nearest (geographically) resident
killer whale group, but that they share common genetic traits with
other resident groups farther to the north, in Alaska. Genetic
information also showed that Southern Resident whales are different
from the sympatric Eastern North Pacific Transient stock of killer
whales. Contaminant analysis showed that, for males, Southern Residents
have higher levels of some contaminants than northern residents or
resident whales in Alaska but significantly lower than transient killer
whales. Data on the growth of recreational and commercial whale
watching, during the past 20 years, showed that summer vessel traffic
increased in the seasonal core range of the Southern Residents, but
studies on the influence of vessels on the behavior, feeding and energy
expenditures of these whales have been inconclusive. Little is known
about the winter foraging habitat or prey of the Southern Residents.
However, the summer diet is dominated by salmonids and chinook salmon
have been observed to be a preferred prey in Puget Sound and the
Northwest Straits. Data on seasonal abundance of chinook and other
salmonids in Washington indicate periodic declines but detailed
information on prey density, trends in wild versus hatchery fish, and
foraging success between Southern Resident pods and between adjacent
killer whale populations were unavailable at the workshop. Workshop
participants noted that resident killer whale stocks in British
Columbia (including Southern Residents) were listed as threatened by
the Committee on the Status of Endangered Wildlife in Canada (COSEWIC)
but that listing under Canadian law does not carry the same legal
definitions or mandates as the ESA.
Analysis of Petition
Section 4 (b)(3) of the ESA contains provisions concerning
petitions from interested persons requesting the Secretary of Commerce
(Secretary) to list certain species under the ESA (16 U.S.C. 1533
(b)(3)(A)). Section 4 (b)(3)(A) requires that, to the maximum extent
practicable, within 90 days after receiving such a petition, the
Secretary must make a finding whether the petition presents substantial
scientific information indicating that the petitioned action may be
warranted. This includes determining whether there is evidence that the
subject populations may qualify as a ``species'' under the ESA, in
accordance with NMFS/U.S. Fish and Wildlife Service policy regarding
the identification of distinct vertebrate population segments (61 FR
4722, February 7, 1996).
Regulations implementing the ESA (50 CFR 424.14 (b)) define
``substantial information'' as the amount of information that would
lead a reasonable person to believe that the measure proposed in the
petition may be warranted. In evaluating a petitioned action, NMFS
considers several factors, including whether the petition contains
detailed narrative justification for the recommended measure,
describing, based on available information, past and present numbers
and distribution of the species involved and any threats faced by the
species (50 CFR 424.14 (b)(2)(ii)). In addition, NMFS considers whether
the petition provides information regarding the status of the species
over all or a significant portion of its range (50 CFR 424.14
(b)(2)(iii)).
NMFS evaluated whether the petition met the standard for
``substantial information'' and concluded it was appropriate to accept
the petition to list the species. The petition highlights key issues
for consideration by NMFS, including: (1) genetic, behavioral, and
ecological evidence bearing on the issue of whether to define Southern
Resident killer whales as a distinct population segment; (2) population
data documenting a recent decline in Southern Resident killer whales
and analyses indicating that these whales may be at some risk of
extinction; and (3) an array of threats that may account for the
decline in Southern Resident killer whales.
Petition Finding
After reviewing the information contained in the petition, as well
as other available information, NMFS determines that the petition
presents
[[Page 42501]]
substantial scientific information indicating the petitioned action may
be warranted. In accordance with section 4 (b)(3)(B) of the ESA, NMFS
will complete a status review and report its findings by May 2, 2002.
Listing Factors and Basis for Determination
Under section 4 (a)(1) of the ESA, a species can be determined to
be threatened or endangered based on any of the following factors: (1)
The present or threatened destruction, modification, or curtailment of
a species' habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or
predation; (4) inadequacy of existing regulatory mechanisms; or (5)
other natural or manmade factors affecting the species continuing
existence. Listing determinations are based solely on the best
available scientific and commercial data after taking into account any
efforts being made by any state or foreign nation to protect the
species.
Information Solicited
To ensure that the status review is complete and based on the best
available scientific and commercial data, NMFS solicits information and
comments concerning the status of killer whale populations world wide
with emphasis in the Eastern North Pacific Ocean from California to
Alaska (see DATES and ADDRESSES). Specifically, the agency is seeking
available information on: (1) historical and current known ranges of
resident (fish eating) and transient (mammal-eating) killer whales; (2)
spatial and seasonal distribution with particular focus on current and
historical habitat utilization; (3) genetic variability in resident,
transient, and offshore killer whale populations; (4) demographic
movements among resident or transient killer whales; (5) trends in
killer whale foraging habits and seasonal prey abundance; (6) trends in
environmental contamination by persistent organic pollutants (e.g.,
polychlorinated-biphenyls (PCBs) including congener specific data) as
well as other contaminants (e.g. toxic metals); (7) contaminant burdens
in prey species, especially salmonids; (8) impacts caused by human
recreational activities (e.g., whale watching, boating); (9) historic
removals of killer whales including human caused mortality associated
with live capture operations, military activities, or fisheries
interactions; (10) current or planned activities and their possible
impacts on this species (e.g., removals or habitat modifications); (11)
efforts being made to protect resident killer whales or improve their
habitat; and (12) non-human related factors that may have contributed
to the recent decline of the Southern Resident killer whale (i.e.,
climatic or oceanographic regime shifts, diseases, biotoxins).
NMFS also requests information describing the quality and extent of
marine habitats for Southern Resident killer whales, as well as
information on areas that may qualify as critical habitat. Areas that
include the physical and biological features essential to the recovery
of the species should be identified. Essential features include, but
are not limited to the following: (1) Habitat for individual and
population growth, and for normal behavior; (2) food, water, air,
light, minerals, or other nutritional or physiological requirements;
(3) cover or shelter; (4) sites for reproduction and rearing of
offspring; and (5) habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of the species. NMFS is also seeking information and maps
describing natural and manmade changes within the species' current and
historical range in the Eastern North Pacific Ocean from California to
Alaska.
For areas potentially qualifying as critical habitat, NMFS also
requests information describing (1) the activities that affect the area
or could be affected by the designation, and (2) the economic costs and
benefits of additional requirements of management measures likely to
result from the designation. The economic cost to be considered in a
critical habitat designation under the ESA is the probable economic
impact ``of the [critical habitat]
designation upon proposed or ongoing
activities'' (50 CFR 424.19). NMFS must consider the incremental costs
specifically resulting from a critical habitat designation that are
above the economic effects attributable to listing the species.
Economic effects attributable to listing include actions resulting from
section 7 consultations under the ESA to avoid jeopardy to the species
and from the taking prohibitions under section 9 or 4 (d) of the ESA.
Comments concerning economic impacts should distinguish the costs of
listing from the incremental costs that can be directly attributed to
the designation of specific areas as critical habitat.
On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife
Service, published a series of policies regarding listings under the
ESA, including a policy for peer review of scientific data (59 FR
34270). The intent of the peer review policy is to ensure that listings
are based on the best scientific and commercial data available. NMFS
now solicits the names of recognized experts in the field who could
take part in the peer review process for the agency's status review of
Southern Resident killer whales. Peer reviewers may be selected from
the academic and scientific community, tribal and other Native American
groups, Federal and state agencies, the private sector, and public
interest groups.
Authority: Authority: 16 U.S.C. 1531 et seq.
Dated: August 6, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 01-20282 Filed 8-10-01; 8:45 am]
BILLING CODE 3510-22-S