[Federal Register: December 7, 2010 (Volume 75, Number 234)]
[Rules and Regulations]
[Page 76085-76137]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de10-14]
[[Page 76085]]
-----------------------------------------------------------------------
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Polar Bear (Ursus maritimus) in the United States;
Final Rule
[[Page 76086]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R7-ES-2009-0042; 92210-1117-0000-FY09-B4]
RIN 1018-AW56
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Polar Bear (Ursus maritimus) in the United
States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for polar bear (Ursus maritimus) populations in the
United States under the Endangered Species Act of 1973, as amended
(Act). In total, approximately 484,734 square kilometers (km\2\)
(187,157 square miles (mi\2\)) fall within the boundaries of the
critical habitat designation. The critical habitat is located in Alaska
and adjacent territorial and U.S. waters.
DATES: This rule becomes effective on January 6, 2011.
ADDRESSES: The final rule and final economic analysis are available for
viewing at http://www.regulations.gov. You can view detailed, colored
maps of critical habitat areas in this final rule at http://
alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. Supporting
documentation used in preparing this final rule is available for public
inspection, by appointment, during normal business hours, at the U.S.
Fish and Wildlife Service, Marine Mammals Management Office, 1011 East
Tudor Road, Anchorage, AK 99503; telephone 907/786-3800; facsimile 907/
78-3816.
FOR FURTHER INFORMATION CONTACT: Thomas J. Evans, Marine Mammals
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor
Road, Anchorage, AK 99503; telephone 907-786-3800. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of the critical habitat for the polar bear in the
United States in this final rule. For more information on the polar
bear, refer to the final listing rule published in the Federal Register
on May 15, 2008 (73 FR 28212), the proposed rule to designate critical
habitat published in the Federal Register on October 29, 2009 (74 FR
56058), and the document published on May 5, 2010 (75 FR 24545), that
made available the draft economic analysis (DEA). Detailed information
on polar bear biology and ecology relevant to designation of critical
habitat is discussed under the Primary Constituent Elements section
below.
General Overview
Polar bears are distributed throughout the ice-covered waters of
the circumpolar Arctic (Stirling 1988, p. 61). However, in accordance
with the regulations at 50 CFR 424.12(h), we do not designate critical
habitat within foreign countries or in other areas outside of U.S.
jurisdiction. In the United States, polar bears occur in Alaska and
adjacent State, Territorial, and U.S. waters. Therefore, these are the
only areas we include in this critical habitat designation.
Delineation of critical habitat requires, within the geographical
area occupied by the polar bear, identification of the physical and
biological features essential to the conservation of the species that
may require special management or protection. In general terms,
physical and biological features essential to the conservation of the
polar bear include: (1) Annual and perennial sea-ice habitats that
serve as a platform for hunting, feeding, traveling, resting, and (to a
limited extent) denning; and (2) terrestrial habitats used by polar
bears for denning and reproduction, as well as for seasonal use in
traveling or resting. The most important polar bear life functions that
occur in these habitats are feeding and reproduction. Adult female
polar bears are the most important reproductive cohort in the
population.
Polar bears live in an extremely dynamic sea-ice environment. Much
of polar bear range in the United States includes two major categories
of sea ice: Land-fast ice and pack ice. When we refer to sea-ice
habitat in this final rule, we are referring to both of these types of
ice. Land-fast ice is either frozen to land or to the benthos (bottom
of the sea) and is relatively immobile throughout the winter. Shore-
fast ice, a type of land-fast ice also known as ``fast ice,'' is
defined by the Arctic Climate Impact Assessment (2005, p. 190) as ice
that grows seaward from a coast and remains stationary throughout the
winter and that is typically stabilized by grounded pressure ridges at
its outer edge. Pack ice consists of annual and heavier multi-year ice
that is in constant motion due to winds and currents. It is located in
pelagic (open ocean) areas and, unlike land-fast ice, can be highly
dynamic. The actions of winds, currents, and temperature result in the
formation of leads (linear openings or cracks in the sea ice), pressure
ridges, and ice floes of various sizes. While the composition of land-
fast ice is uniform, regions of pack ice can consist of various ages
and thicknesses, from new ice only days old that may be several
centimeters (inches) thick, to multiyear ice that has survived several
years and may be more than 2 meters (6.56 feet (ft)) thick. Polar bear
use of these habitats may be influenced by several factors and the
interaction among these factors, including: (1) Water depth; (2)
atmospheric and oceanic currents or events; (3) climate phenomena such
as temperature, winds, precipitation, and snowfall; (4) proximity to
the continental shelf; (5) topographic relief (which influences
accumulation of snow for denning); (6) presence of undisturbed
habitats; (7) secure resting areas that provide refuge from extreme
weather, other bears, or humans; and (8) prey availability.
Unlike some other marine mammal species, polar bears generally do
not occur at high densities in specific areas such as rookeries and
haulout sites. However, some denning areas, referred to as core denning
areas, have a history of higher use by polar bears. In addition,
terrestrial coastal areas are experiencing increasing use by polar
bears for longer durations during the fall open-water period (the
season when there is a minimum amount of ice present, which occurs
during the period from when the sea ice melts and retreats during the
summer, to the beginning of freeze-up during the fall) (Schliebe et al.
2008, p. 2).
As polar bears evolved from brown bears (Ursus arctos), they became
increasingly specialized for hunting seals from the surface of the sea
ice (Stirling 1974, p. 1,193; Smith 1980, p. 2,206; Stirling and
[Oslash]ritsland 1995, p. 2,595). Currently, little is known about the
dynamics of ice seal populations (seals that rely on sea ice for their
life-history functions) in the Arctic or threats to these populations.
However, the status of the populations of the primary species of ice
seals in the Arctic is currently being investigated by the National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service. We do know, however, that polar bears require sea ice as a
platform from which to search for and hunt these seals. Polar bear
movements are influenced by the accessibility of seals, their primary
prey. The formation and movement patterns
[[Page 76087]]
of sea ice strongly influence the distribution and accessibility of
ringed seals (Pusa hispida), the main prey for polar bears, and bearded
seals (Erignathus barbatus), a less-used prey species. When the annual
sea ice begins to form in the shallower water over the continental
shelf, polar bears that had retreated north of the continental shelf
during the summer return to the shallower shelf waters where seal
densities are higher (Durner et al. 2009a, p. 55). During the winter
period, when energetic demands are the greatest, nearshore lead systems
and ephemeral (may close during the winter) or recurrent (open
throughout the winter) polynyas (areas of open sea surrounded by sea
ice) are important for seals, and are thus important foraging habitat
for polar bears. During the spring period, nearshore lead systems
continue to be important hunting and foraging habitat for polar bears.
The shore-fast ice zone, where ringed seals construct subnivean (in or
under the snow) birth lairs for pupping, is also an important foraging
habitat during the spring (Stirling et al. 1993, p. 20). Polar bears in
the southern Beaufort Sea reach their peak weights during the fall and
early winter period (Durner and Amstrup 1996, p. 483). Thus,
availability and accessibility of prey during this time may be critical
for survival through the winter.
In northern Alaska, denning habitat is more diffuse than in other
areas where high-density denning by polar bears has been identified
(Amstrup 2003, p. 595). Areas, such as barrier islands (linear features
of low-elevation land adjacent to the main coastline that are separated
from the mainland by bodies of water), river bank drainages, much of
the North Slope coastal plain, and coastal bluffs that occur at the
interface of mainland and marine habitat, receive proportionally
greater use for denning than other areas (Durner et al. 2003, entire;
Durner et al. 2006a, entire). Snow cover, both on land and on sea ice,
is an important component of polar bear habitat in that it provides
insulation and cover for polar bear dens (Durner et al. 2003, p. 60).
Geographic areas containing physical features suitable for snow
accumulation and denning by polar bears have been delineated on the
North Slope for an area from the Colville River Delta at Prudhoe Bay,
Alaska, to the Canadian border (Durner et al. 2001, p. 119; Durner et
al. 2003, p. 60).
Description and Taxonomy
Polar bears are the largest of the living bear species (Demaster
and Stirling 1981, p. 1; Stirling and Derocher 1990, p. 190) and are
the only bear species that is evolutionarily adapted to the arctic sea-
ice and marine habitat. Using movement patterns, tag returns from
harvested animals, and, to a lesser degree, genetic analysis, Aars et
al. (2006, pp. 33-47) determined that polar bears occur in 19
relatively discrete populations. Genetic analyses have reinforced the
observed boundaries between some designated populations (Paetkau et al.
1999, p. 1,571; Amstrup 2003, p. 590), while confirming overlap among
others (Paetkau et al. 1999, p. 1,571; Amstrup et al. 2004a, p. 676;
Amstrup et al. 2005, p. 252; Cronin et al. 2006, p. 656). Currently,
there are two polar bear populations in the United States: the southern
Beaufort Sea population, which extends into Canada; and the Chukchi-
Bering Seas population, which extends into the Russian Federation
(Russia) (Figure 1) (Amstrup et al. 2004a, p. 670). Although the two
U.S. populations are not distinguishable genetically (Paetkau et al.
1999, p. 1576; Cronin et al. 2006, p. 658), the population boundaries
are thought to be ecologically meaningful and distinct enough to be
used for management (Amstrup et al. 2004a, p. 670). The Service listed
the polar bear as a threatened species throughout its range under the
Act on May 15, 2008 (73 FR 28212; final rule available at http://
alaska.fws.gov/fisheries/mmm/polarbear/issues.htm).
Figure 1. Approximate bounds (95 percent contour) for the southern
Beaufort Sea and the Chukchi-Bering Seas polar bear populations based
on satellite radio-telemetry locations from 1985-2003.
[[Page 76088]]
[GRAPHIC] [TIFF OMITTED] TR07DE10.000
Polar bears are characterized by large body size, a stocky form,
and fur color that varies from white to yellow. They are sexually
dimorphic; females weigh 181 to 317 kilograms (kg) (400 to 700 pounds
(lbs)), and males weigh up to 654 kg (1,440 lbs). Polar bears have a
longer neck and a proportionally smaller head than other members of the
bear family (Ursidae), and are missing the distinct shoulder hump
common to brown bears. The nose, lips, and skin of polar bears are
black (Demaster and Stirling 1981, p. 1; Amstrup 2003, p. 588).
Polar bears evolved in sea-ice habitats for over 200,000 years and
as a result are evolutionarily adapted to this environment (Talbot and
Shields 1996, p. 490). Adaptations unique to polar bears include: (1)
White pelage with water-repellent guard hairs and dense under-fur; (2)
a short, furred snout; (3) small ears with reduced surface area; (4)
teeth specialized for a carnivorous rather than an omnivorous diet; and
(5) feet with tiny papillae on the underside, which increase traction
on ice (Stirling 1988, p. 24). Additional adaptations include large,
paddle-like feet (Stirling 1988, p. 24), and claws that are shorter and
more strongly curved than those of brown bears and that are larger and
heavier than those of black bears (Ursus americanus) (Amstrup 2003, p.
589).
Distribution and Habitat
Polar bears are distributed throughout the ice-covered waters of
the circumpolar Arctic (Stirling 1988, p. 61), and rely on sea ice as
their primary habitat (Lentfer 1972, p. 169; Stirling and Lunn 1997,
pp. 169-170; Amstrup 2003, p. 587). The distribution and movements of
polar bears in the United States are closely tied to the seasonal
dynamics of sea-ice extent as it retreats northward during summer melt
and advances southward during autumn freeze. The southern Beaufort Sea
population occurs south of Banks Island and east of the Baille Islands,
Canada; ranges west to Point Hope, Alaska; and includes the coastline
of Northern Alaska and Canada up to approximately 40 km (25 mi) inland
(Figure 1). The Chukchi-Bering Seas population is widely distributed on
the sea ice in the Chukchi Sea and northern Bering Sea and adjacent
coastal areas in Alaska and Russia. The eastern boundary of the
Chukchi-Bering Seas population is near Colville Delta (Arthur et al.
1996, p. 219; Amstrup et al. 2004a, p. 254), and the western boundary
is near Chauniskaya Bay in the Eastern Siberian Sea. The boundary
between the Eastern Siberian Sea population and the Chukchi-Bering Seas
population was determined from movements of adult female polar bears
captured in the Bering and Chukchi Seas region (Garner et al. 1990, p.
222) (Figure 1). The Chukchi-Bering Seas population extends into the
Bering Sea, and its southern boundary is determined by the annual
extent of pack ice (Garner et al. 1990, p. 224; Garner et al. 1994, p.
113; Amstrup et al. 2004a, p. 670). Historically polar bears have
ranged as far south as St. Matthew Island (Hanna 1920, pp. 121-122) and
the Pribilof Islands (Ray 1971, p. 13) in the Bering Sea. Adult female
polar bears captured in the Beaufort Sea may make
[[Page 76089]]
seasonal movements into the Chukchi Sea in an area of overlap located
between Point Hope and Colville Delta, centered near Point Lay (Amstrup
et al. 2002, p. 114; Amstrup et al. 2005, p. 254). Distributions based
on satellite radio-telemetry data show zones of overlap between the
Chukchi-Bering Seas population and the southern Beaufort Sea population
(Amstrup et al. 2004a, p. 670; Amstrup et al. 2005, p. 253). Telemetry
data indicate that polar bears marked in the Beaufort Sea spend about
25 percent of their time in the northeastern Chukchi Sea, whereas
females captured in the Chukchi Sea spend only 6 percent of their time
in the Beaufort Sea (Amstrup 1995, pp. 72-73). Average activity areas
of females in the Chukchi-Bering Seas population (244,463 km\2\, range
144,659-351,369 km\2\ (94,387 mi\2\, range 55,852-135,664 mi\2\))
(Garner et al. 1990, p. 222) were more extensive than those in the
Beaufort Sea population (166,694 km\2\, range 14,440-616,800 km\2\
(64,360 mi\2\, range 21,564-52,380 mi\2\)) (Amstrup et al. 2000b, p.
960). Radio-collared adult females of the Chukchi-Bering Seas
population (n = 20) spent 68 percent of their time in the Russian
region and 32 percent in the American region (Garner et al. 1990, p.
224).
Sea-Ice Habitat
Polar bears depend on sea ice for a number of purposes, including
as a platform from which to hunt and feed upon seals; as habitat on
which to seek mates and breed; as a platform on which to travel to
terrestrial maternity denning areas, and sometimes for maternity
denning; and as a substrate on which to make long-distance movements
(Stirling and Derocher 1993, p. 241). Mauritzen et al. (2003b, p. 123)
indicated that habitat use by polar bears during certain seasons may
involve a trade-off between selecting habitats with abundant prey
availability versus the use of safer retreat habitats of higher ice
concentrations with less prey. Their findings indicate that polar bear
distribution may not be solely a reflection of prey availability, but
that other factors such as energetic costs or risk may be involved.
Polar bears show a preference for certain sea-ice stages,
concentrations, forms, and deformation types (Stirling et al. 1993, pp.
18-22; Arthur et al. 1996, p. 223; Ferguson et al. 2000b, pp. 770-771;
Mauritzen et al. 2001, p. 1,711; Durner et al. 2004, pp. 16-20; Durner
et al. 2009a, pp. 51-53). Using visual observations of bears or bear
tracks, Stirling et al. (1993, p. 15) defined seven types of sea-ice
habitat and determined habitat preferences. They suggested that the
following are features that influenced polar bear distribution: (1)
Stable shore-fast ice with drifts; (2) stable shore-fast ice without
drifts; (3) floe edge ice; (4) moving ice; (5) continuous stable
pressure ridges; (6) coastal low level pressure ridges; and (7) fiords
and bays. Polar bears preferred the floe ice edge, stable shore-fast
ice with drifts, and moving ice (Stirling 1990, p. 226; Stirling et al.
1993, p. 18). In another assessment, categories of sea-ice habitat
included pack ice, shore-fast ice, transition zone (also known as the
shear zone--the active area consisting of openings between the shore-
fast ice and drifting pack ice), polynyas, and leads (USFWS 1995, p.
9).
Pack ice is the primary summer habitat for polar bears in the
United States (Durner et al. 2004, pp. 16-20). Shore-fast ice is used
by polar bears for feeding on seal pups, for movement, and occasionally
for maternity denning (Stirling et al. 1993, p. 20). In protected bays
and lagoons, the shore-fast ice typically forms in the fall and remains
stationary throughout the winter. Along the open shorelines, the shore-
fast ice consists of sea ice that freezes and eventually becomes
grounded to the bottom, or develops from offshore ice that is pushed
against the land by the wind and ocean currents (Lentfer 1972, p. 165).
The shore-fast ice usually occurs in a narrow belt along the coast.
Most shore-fast ice melts in the summer.
Open water at leads and polynyas attracts seals and other marine
mammals and provides preferred hunting habitats during winter and
spring. The shore system of leads and recurrent polynyas are productive
areas and are kept at least partially open during the winter and spring
by ocean currents and winds. The width of the leads ranges from several
meters to tens of kilometers (Stirling et al. 1993, p. 17).
Polar bears must move throughout the year to adjust to the changing
distribution of sea ice and seals (Stirling 1988, p. 63; USFWS 1995, p.
4). Although polar bears are generally limited to areas where the sea
is ice-covered for much of the year, they are not evenly distributed
throughout their range on sea ice. They show a preference for certain
sea-ice stages and concentrations, and for specific sea-ice features
(Stirling et al. 1993, pp. 18-22; Arthur et al. 1996, p. 223; Ferguson
et al. 2000a, p. 1,125; Ferguson et al. 2000b, pp. 770-771; Mauritzen
et al. 2001, p. 1,711; Durner et al. 2004, pp. 18-19; Durner et al.
2006a, pp. 34-35; Durner et al. 2009a, pp. 51-53). Sea-ice habitat
quality varies temporally as well as geographically (Ferguson et al.
1997, p. 1,592; Ferguson et al. 1998, pp. 1,088-1,089; Ferguson et al.
2000a, p. 1,124; Ferguson et al. 2000b, pp. 770-771; Amstrup et al.
2000b, p. 962). Polar bears show a preference for sea ice located over
and near the continental shelf (Derocher et al. 2004, p. 164; Durner et
al. 2004, pp. 18-19; Durner et al. 2009a, p. 55). This is likely due to
higher biological productivity in these areas (Dunton et al. 2005, pp.
3,467-3,468), and greater accessibility to prey in nearshore shear
zones and polynyas compared to deep-water regions in the central polar
basin (Stirling 1997, pp. 12-14). Bears are most abundant near the
shore in shallow-water areas, and also in other areas where currents
and ocean upwelling increase marine productivity and serve to keep the
ice cover from becoming too consolidated in winter (Stirling and Smith
1975, p. 132; Stirling et al. 1981, p. 49; Amstrup and DeMaster 1988,
p. 44; Stirling 1990, pp. 226-227; Stirling and [Oslash]ritsland 1995,
p. 2,607; Amstrup et al. 2000b, p. 960). Durner et al. (2004, pp. 18-
19; Durner et al. 2009a, pp. 51-52) found that polar bears in the
Arctic Basin prefer sea-ice concentrations (percent of ocean surface
area covered by ice) greater than 50 percent, and located over
continental shelf water, which in Alaska is at depths of 300 m (984 ft)
or less.
Over most of their range, polar bears remain on the sea ice year-
round or spend only short periods on land. In the Chukchi Sea and
Beaufort Sea areas of Alaska and northwestern Canada, for example, less
than 10 percent of the polar bear locations obtained via radio
telemetry were on land (Amstrup 2000, p. 137; Amstrup, U.S. Geological
Survey, unpublished data); the majority of land locations were of polar
bears occupying maternal dens during the winter. However, some polar
bear populations occur in seasonally ice-free environments and use land
habitats for varying portions of the year.
Polar bear distribution in most areas varies seasonally with the
extent of sea-ice cover and availability of prey (Stirling and Lunn
1997, p. 178). The seasonal movement patterns of polar bears emphasize
the role of sea ice in their life cycle. During the winter in Alaska,
sea ice may extend 400 kilometers km (248 mi) south of the Bering
Strait, and polar bears will extend their range to the southernmost
proximity of the ice (Ray 1971, p. 13; Garner et al. 1990, p. 222). Sea
ice disappears from the Bering Sea and is greatly reduced in the
Chukchi Sea in the summer, and polar bears occupying these areas move
as much as 1,000 km (621 mi) to stay with the retreating pack ice
(Garner et al. 1990, p. 222; Garner et
[[Page 76090]]
al. 1994, pp. 407-408). Throughout the Polar Basin during the summer,
polar bears generally concentrate along the edge of or into the
adjacent persistent pack ice (Durner et al. 2004; Durner et al. 2006a).
Major northerly and southerly movements of polar bears appear to depend
on distribution of sea ice, which, in turn, is determined by the
seasonal melting and refreezing of sea ice (Amstrup 2000, p. 142).
In areas where sea-ice cover and character are seasonally dynamic,
a large multi-year home range, of which only a portion may be used in
any one season or year, is an important part of the polar bear life-
history strategy. In other regions, where ice is less dynamic, home
ranges are smaller and less variable (Ferguson et al. 2001, pp. 51-52).
Data from telemetry studies of adult female polar bears show that they
do not wander aimlessly on the ice, nor are they carried passively with
the ocean currents as previously thought (Pedersen 1945 cited in
Amstrup 2003, p. 587; Amstrup et al. 2000b, p. 956; Mauritzen et al.
2001, p. 1704; Mauritzen et al. 2003a, p. 111; Mauritzen et al. 2003b,
p. 123). Results show strong fidelity to activity areas that are used
over multiple years (Ferguson et al. 1997, p. 1,589). Not all
geographic areas within an individual polar bear's home range are used
each year. The distribution patterns of some polar bear populations
during the open water and early fall seasons have changed in recent
years (Durner et al. 2006, p. 30; Durner et al. 2009a, pp. 49, 53). In
the Beaufort Sea, for example, greater numbers of polar bears are being
found on shore during the fall than recorded at any previous time
(Schliebe et al. 2006, p. 559).
Terrestrial Denning Habitat
Unlike brown bears and black bears, which hibernate in winter when
food is unavailable, polar bears are able to forage for seals
throughout the winter (Amstrup 2003, p. 593). Polar bears are highly
evolved with respect to survival during periods of food deprivation.
During food shortages, they are able to shift their metabolism into a
hibernation-like pattern, but still remain active. Generally, only
pregnant polar bears routinely enter dens in the fall for extended
periods (however, see Messier et al. 1994 and Ferguson et al. 2000a).
Typically, pregnant female polar bears go into the dens in November,
give birth in late December, and emerge from their dens after the cubs
have reached 9.1-11.4 kg (20-25 lbs) in March or April (Ramsay and
Stirling 1988, p. 602). In Alaska, cubs stay with their mother for 2
years after departing the den (Amstrup 2003, p. 599).
Polar bears are particularly vulnerable to anthropogenic and
natural disturbances during denning compared to other times in their
life cycle (Amstrup 2003, p. 606) because they are more limited in
their ability to safely move away from the disturbance. The cubs, which
are born in mid-winter, weigh only 600-700 g (1.3-1.5 lbs), and are
blind, lightly furred, and helpless (Blix and Lentfer 1979, p. R67).
The maternal den provides a relatively warm, protected, and stable
environment until they are large enough (approximately 11.4 kg (25
lbs)) to survive conditions outside the den in March or April. The dens
provide thermal insulation, and if the family group abandons the den
early, the cubs will die (Blix and Lentfer 1979, p. R67; Amstrup and
Gardner 1994, p. 7). Throughout the species' range, most pregnant
female polar bears excavate dens in snow located on land in the fall
and early winter period (Harington 1968, p. 6; Lentfer and Hensel 1980,
p. 102; Ramsay and Stirling 1990, p. 233; Amstrup and Gardner 1994, p.
5). The only known exceptions are in western and southern Hudson Bay,
where polar bears first excavate earthen dens and later reposition into
adjacent snow drifts (Jonkel et al. 1972, p. 146; Ramsay and Stirling
1990, p. 233), and in the southern Beaufort Sea, where a portion of the
population dens in snow caves located on the drifting pack ice and
shore-fast ice (Amstrup and Gardner 1994, p. 5). Successful denning by
polar bears requires accumulation of sufficient snow for den
construction and maintenance and insulation for the female and cubs.
Adequate and timely snowfall combined with winds that cause snow
accumulation leeward of requisite topographic features create denning
habitat (Harington 1968, p. 12).
In addition, for bears moving from the sea ice to land, the timing
of freeze-up and the distance from the pack ice are two factors that
can affect when pregnant females enter dens. Access to terrestrial
denning sites is dependent upon the location of the sea ice, amount of
stable ice, ice consolidation, and the length of the melt season during
the summer and fall (Fischbach et al. 2007, p. 1,395). The Alaskan
southern Beaufort Sea and the Chukchi-Bering Seas polar bear
populations typically remain with the sea ice throughout the year.
During the fall, when the sea ice is at its minimum extent, the
parturient females begin to look for suitable denning sites in
relatively close proximity to the sea-ice edge. The closest terrestrial
denning sites to the ice edge in the Chukchi Sea during the late fall
are Wrangel Island, Russia, and the northern coastline of the Chukotka
Peninsula, Russia. Polar bears from the Chukchi-Bering Seas population
have typically used terrestrial den sites in Russia because
accessibility to potential terrestrial denning habitat in western
Alaska is not possible due to the great distance polar bears would have
to swim. In the future the distance between the Chukchi Sea ice edge
and western Alaska is expected to increase due to changes in the sea-
ice characteristics (described below in the section Sites for Breeding,
Reproduction, or Rearing (or Development) of Offspring) from climate
change.
A great amount of polar bear denning arctic-wide occurs in core
areas, which show high use over time (Harington 1968, pp. 7-8).
Examples include the west coast of Hudson Bay in Canada and Wrangel
Island in Russia (Harrington 1968, p. 8; Ramsey and Stirling 1990, p.
233). In some portions of the species' range, polar bear dens are more
dispersed, with dens scattered over larger areas at lower density
(Lentfer and Hensel 1980, p. 102; Stirling and Andriashek 1992, p. 363;
Amstrup 1993, p. 247; Amstrup and Gardner 1994, p. 5; Messier et al.
1994, p. 425; Born 1995, p. 84; Ferguson et al. 2000a, p. 1125; Durner
et al. 2001, p. 117; Durner et al. 2003, p. 57). In northern Alaska,
while denning habitat is more diffuse than in other areas, certain
areas such as barrier islands, river banks, much of the North Slope
coastal plain, and coastal bluffs that occur at the interface of
mainland and marine habitat receive proportionally greater use for
denning (Durner et al. 2004, entire; Durner et al. 2006a, entire).
The primary denning habitat for polar bears in the southern
Beaufort Sea population is on the relatively flat topography of the
coastal area on the North Slope of Alaska and the pack ice (Amstrup
1993, p. 247; Amstrup and Gardner 1994, p. 7; Durner et al. 2001, p.
119; Durner et al. 2003, p. 61; Fischbach et al. 2007, p. 1,400). Some
of the habitat suitable for the accumulation of snow and use for
denning has been mapped on the North Slope (Durner et al. 2001, entire;
Durner et al. 2006a, entire). The primary denning areas for the
Chukchi-Bering Seas population occur on Wrangel Island, Russia, where
up to 200 bears per year have denned annually, and the northeastern
coast of the Chukotka Peninsula, Russia (Stishov 1991a, p. 107; Stishov
1991b, p. 91; Ovsyanikov 2006, p. 169). The key characteristic of all
denning habitat is topographic features that catch snow in
[[Page 76091]]
the autumn and early winter (Durner et al. 2003, p. 61). As in the
Canadian arctic, Russia, and Svalbard, Norway (Harington 1968, p. 12;
Larsen 1985, p. 322; Stishov 1991b, p. 91; Stirling and Andriashek
1992, p. 364), most polar bear dens in Alaska occur relatively near the
coast along the coastal bluffs and river banks of the mainland and
barrier islands and on the drifting pack ice (Amstrup and Gardner 1994,
p. 5; Amstrup 2003, p. 596).
Previous Federal Actions
We listed the polar bear as a threatened species under the Act on
May 15, 2008 (73 FR 28212). At the time of listing, we determined that
critical habitat for the polar bear was prudent, but not determinable.
We concluded that, given the complexity of determining which specific
areas in the United States might contain physical and biological
features essential to the conservation of the polar bear under rapidly
changing environmental conditions, we required additional time to
conduct a thorough evaluation and coordinate with species experts.
Thus, we did not propose critical habitat for the polar bear at that
time. We issued a final special rule for the polar bear under section
4(d) of the Act (16 U.S.C. 1531 et seq.) on December 16, 2008 (73 FR
76249). The special rule provides measures that are necessary and
advisable to provide for the conservation of the polar bear.
On July 16, 2008, the Center for Biological Diversity, Natural
Resources Defense Council, and, Greenpeace, Inc., filed an amended
complaint against the Service for, in part, failing to designate
critical habitat for the polar bear concurrently with the final listing
rule [Center for Biological Diversity et al. v. Kempthorne et al., No.
08-2113- D.D.C. (transferred from N.D. Cal.)]. On October 7, 2008, the
U.S. District Court for the Northern District of California entered an
order approving a stipulated settlement of the parties. The stipulated
settlement, in part, required the Service, on or before June 30, 2010,
to submit to the Federal Register a final critical habitat
determination for the polar bear. On March 24, 2010, the U.S. District
Court for District of Columbia approved the stipulation extending the
deadline for submission of the final critical habitat designation to
the Federal Register to November 23, 2010. The Service issued the
proposed rule for the designation of critical habitat for the polar
bear in the United States on October 29, 2009 (74 FR 56058). We also
published a document making available the draft economic analysis of
the proposed critical habitat designation on May 5, 2010 (75 FR 24545).
For more information on previous Federal actions concerning the polar
bear, refer to the final listing rule and final special rule published
in the Federal Register on May 15, 2008 (73 FR 28212), and December 16,
2008 (73 FR 76249), respectively.
Summary of Comments and Recommendations
We requested written comments from the public during two comment
periods on the proposed rule to designate critical habitat for the
polar bear in the United States. The first comment period, which was
associated with the publication of the proposed rule (74 FR 56058),
opened on October 29, 2009. That comment period was open for 60 days,
closing on December 28, 2009. We also requested comments on the
proposed critical habitat designation and associated draft economic
analysis (DEA) during a 60-day comment period that opened May 5, 2010,
and closed on July 6, 2010 (75 FR 24545). During the comment periods we
also contacted appropriate Federal, State, and local agencies; Alaska
Native organizations; and other interested parties and invited them to
comment on the proposed rule to designate critical habitat for the
polar bear in Alaska and the associated DEA.
In response to requests from the public, public hearings were held
in Anchorage, Alaska on June 15, 2010, and Barrow, Alaska on June 17,
2010. These hearings were announced in the Federal Register on May 5,
2010 (75 FR 24545), and a legal notice of the hearings was published in
the Legal Section of the Anchorage Daily News (June 1, 2010). Three
display ads announcing the hearings on proposed critical habitat were
published on June 10, 2010, in the Arctic Sounder (Barrow, Alaska),
Nome Nugget (Nome, Alaska), and Anchorage Daily News (Anchorage,
Alaska). A fourth display ad was published in the Anchorage Daily News
on June 14, 2010. We established teleconferencing capabilities for the
Barrow, Alaska, public hearing to allow outlying villages the
opportunity to provide oral testimony. The communities of Kotzebue and
Little Diomede participated in this public hearing via teleconference.
The public hearings were attended by approximately 73 people.
In addition, information on the proposed critical habitat was
presented at the Inuvialuit Game Council and North Slope Borough
meeting on April 29, 2009, in Barrow, Alaska; the Alaska Nanuuq
Commission Meeting on August 25-26, 2009, in Nome, Alaska; and the
North Slope Borough on March 1, 2010, in Barrow, Alaska.
During the public comment periods, we received approximately
111,690 comments, including letters and post cards, citizen petitions,
e-mail or web messages, and public hearing testimony. We received
comments from Federal agencies, Alaska Native Tribes and tribal
organizations, Federal commissions, State and local governments,
commercial and trade organizations, conservation organizations, non-
governmental organizations, and private citizens.
A majority of the comments received (99 percent) supported the
proposed designation of critical habitat for polar bears in Alaska. The
range of comments varied from those that provided general supporting or
opposing statements with no additional explanatory information to those
that provided extensive comments and information supporting or opposing
the proposed designation. All substantive information provided during
both comment periods has been considered in this final determination
and, where appropriate, has been incorporated directly either into this
final rule or the final economic analysis, or is addressed below.
Comments on the October 29, 2009, proposed rule (74 FR 56058) and
subsequently on the DEA varied considerably, from those that questioned
the need for the critical habitat designation to those that stated the
proposed critical habitat designation did not provide enough protection
for the polar bear. Many of the comments focused on the need to include
or exclude additional habitat from the proposed critical habitat
designation.
Some comments suggested that the Service should increase the
proposed designated critical habitat to include: (1) Areas currently
unoccupied or marginal, as they may become more important as habitat is
lost due to climate change; (2) large areas required to maintain
connectivity between essential habitats; or (3) increased terrestrial
denning habitat required due to the loss of suitable sea-ice denning
habitat.
Other comments suggested that our proposed critical habitat
designation was too large, and that specific areas should be excluded:
(1) For economic reasons; (2) for reasons of national security; (3) due
to the presence of existing management plans that adequately protect
polar bears and their habitat; or (4) because the designated critical
habitat areas did not contain the primary constituent elements (PCEs)
required for polar bear survival and recovery.
[[Page 76092]]
All substantive information provided during the comment periods on
the proposed rule has either been incorporated directly into this final
determination, incorporated into the final economic analysis, or
addressed below. Comments received were grouped into general issues
specifically relating to the proposed critical habitat designation for
the polar bear, and are addressed in the following summary and
incorporated into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we solicited expert opinions
from four knowledgeable individuals with scientific expertise that
included familiarity with polar bear, the geographic region in which it
occurs, conservation biology principles, and the subsistence and
cultural needs of Alaska Native people. We received responses from two
of the peer reviewers. We reviewed all comments we received from the
peer reviewers for substantive issues and new information regarding
critical habitat for the polar bear. These comments, which were
aggregated by subject matter, are summarized and addressed below and
are incorporated into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: One peer reviewer commented that the list of eight
factors influencing polar bear use of habitats is appropriate and
covers the main points. Missing from the discussion is the issue that
age, sex, and reproductive status may also affect polar bear use of
habitats. Evidence of spatial segregation and habitat preference for
bears of different groups is available in the literature, although it
is not well studied.
Our response: We agree and have acknowledged in this final rule
that habitat use can vary with respect to age, sex, and reproductive
status.
Comment 2: One peer reviewer suggested the Service should change
the scientific name of the ringed seal to Pusa hispida, from the more
commonly used name Phoca hispida.
Our response: We concur. The generic name for the ringed seal has
been moved back and forth between the genus Pusa and Phoca in recent
decades. Although the designation of Pusa hispida is not universal, we
defer to the classification of the species as found in the Integrated
Taxonomic Information System, which places this species in the genus
Pusa.
Comment 3: One peer reviewer suggested the Service provide
supporting documentation for the statement that the energetic demands
of polar bears are the greatest during the winter season.
Our response: We agree and have removed the statement from the
rule, as there is no scientific information to support our assumption.
Comment 4: One peer reviewer noted that the more recent studies on
polar bear evolution in sea-ice habitats push the divergence date
between brown (grizzly) bears and polar bears to somewhere between 1.3-
2.3 million years (Yu et al. 2007, p. 8; Arnason et al. 2007, p. 870),
although the reviewer recognized that Krause et al. (2008, p. 4) urged
caution on the time of divergence.
Our response: We disagree, as the most recently reported date of
divergence for the brown bear and polar bear lineage is estimated to be
between 110,000 and 130,000 years before present (Lindqvist et al.
2010, p. 5,053).
Comment 5: In the section regarding adaptations unique to polar
bears, one peer reviewer suggested that the Service should mention
polar bear behavioral and physiological adaptations such as their
walking hibernation (serum urea to creatinine ratio) and winter
activity. These adaptations allow polar bears to remain active in
winter, unlike, for instance, Grizzly bears in Alaska, which all
hibernate in winter.
Our response: We agree and have acknowledged in the Background
section of this rule that among bear species in the United States that
occur in Alaska, winter activity and walking hibernation are unique to
polar bears. Polar bears are highly evolved with respect to survival
during periods of food deprivation. Polar bears are able to alter their
metabolism by shifting into a hibernation-like metabolic pattern during
food shortages. During these periods, active polar bears are able to
metabolize their fat similar to hibernating polar bears.
Comment 6: One peer reviewer suggested the Service note that sea
ice can also ``form over'' the shallower waters of the continental
shelf due to freezing temperatures, and it is not necessary that the
ice must be transported to the location as a na[iuml]ve interpretation
may suggest.
Our response: We agree and have made the necessary changes to the
text of this final rule.
Comment 7: One peer reviewer noted that the only issue of critical
habitat not explicitly addressed is the use of areas farther offshore
than the 300 m (984 ft) bathymetric contour. Also, some commenters
noted that offshore areas in deeper waters are currently used by polar
bears in the southern Beaufort Sea and are increasing in importance as
summer refugia. Thus, inclusion of these areas should be considered.
The reviewer also noted that data on the use of these areas are
available and in the context that polar bears can be considered a
migratory species, it is important to consider the connectivity of all
habitats used by the species.
Our response: While we acknowledge polar bears temporarily use ice
over deeper waters when ice is absent from the shallower waters over
the continental shelf, we believe the ice over deeper waters does not
contain the biological features of the sea ice that are essential to
the conservation of the polar bear, such as access to ice seals, to be
considered critical habitat. We base this on the work of Durner et al.
(2004, p. 17), which shows that polar bears stay almost entirely over
the shallower waters of the continental shelf. In terms of providing a
migratory corridor, see our response to comment 28 of the public
comments below.
Comment 8: One peer reviewer suggested that the statement,
``typically, polar bears tend to avoid humans,'' should include some
reference to polar bear use of human refuse dumps and attraction to
camps due to attractants (e.g., food smells).
Our response: We agree and changed the statement to reflect
potential anthropogenic attractants (e.g., subsistence-harvested whale
carcasses, landfills).
Comment 9: One peer reviewer questioned the statement that ice-
breaking activities may favorably alter essential features and in turn
allow easier access to ringed seals by polar bears. The reviewer said
that the statement is speculative and, without a reference, is
unwarranted. There is no literature supporting ice breaking as allowing
easier access, and access is only important if it allows an increase in
kill rate. This is an unsubstantiated claim of benefit.
Our response: We agree that there is no literature supporting ice
breaking as allowing easier access to seals. We base our statement on
our observation of polar bears investigating the broken ice path behind
a U.S. Coast Guard icebreaker. In addition, we feel we have qualified
the statement by the use of the word ``may''.
Comment 10: One peer reviewer noted that the term Chukchi and
Bering Seas population is used in the text, but the Chukchi and Bering
Seas population is named the Chukchi Sea (or Alaska and Chukotka)
population according to the IUCN Polar Bear Specialist Group.
[[Page 76093]]
Our response: We agree that differing terms may cause confusion and
will use the term Chukchi-Bering Seas population to describe this
population consistently throughout the text of this final rule. Using
the names of the seas where the population resides has been a common
naming convention used for the Arctic polar bear populations.
Comment 11: With regard to the statement in the proposed rule, ``As
the summer sea ice edge retracts to deeper, less productive Polar Basin
waters, polar bears will face increasing competition for limited food
resources, increasing distances to swim with increased energetic
demands * * *'', one peer reviewer suggested the Service provide
clarification as to the reason why polar bears need to swim.
Our response: We added text where appropriate to provide
clarification on the reason polar bears will likely encounter
increasing distances over which they will need to swim as the summer
sea-ice edge recedes beyond the continental shelf.
Comment 12: One peer reviewer stated that the following assertion
we made needs further documentation: that shelter den importance may
increase in the future if polar bears, experiencing nutritional stress
as a result of loss of optimal sea-ice habitat and access to prey, need
to minimize nonessential activities to conserve energy.
Our response: We believe it is reasonable to infer that a potential
increase in nutritional stress may lead to an increase in the
importance of shelter dens to the species. In addition, we believe we
have sufficiently qualified the statement and provided appropriate
support for our assertion (see Physical and Biological Features section
of this final rule for a further discussion of this).
Public Comments
Comments Related to the Need To Designate Critical Habitat and the
Primary Constituent Elements (PCEs)
Comment 13: Many commenters questioned the need to designate
critical habitat for the polar bear. One commenter asserted that the
Service did not adequately document or explain the basis for its
assumption that the polar bear critical habitat designation is ``not
expected to result in additional significant conservation measures.''
The commenter asserted that if this is the case, then there is no need
to designate critical habitat for the polar bear.
Another commenter stated that if the Department of the Interior's
projection of climatic warming is accurate, then the areas essential
for polar bear conservation would be outside the United States (i.e.,
the Canadian Archipelago). They stated that polar bears will likely be
gone from Alaska in 50 years, and, as a result, designation of critical
habitat areas in Alaska is not essential to the survival and future
conservation of polar bears.
Our response: According to section 4(a)(3)(A) of the Act, the
Service has a statutory obligation to designate critical habitat for
endangered and threatened species to the maximum extent prudent and
determinable. Further, as a result of a lawsuit filed by the Center for
Biological Diversity, Natural Resources Defense Council, and
Greenpeace, Inc., we were ordered by the court to designate critical
habitat if prudent for the polar bear. In the final rule listing the
polar bear as a threatened species (May 15, 2008, 73 FR 28212) and our
proposed rule to designate critical habitat (October 29, 2009, 74 FR
56058), we determined that the designation of critical habitat for the
polar bear is prudent. Therefore, we are required to designate critical
habitat for the polar bear to fulfill our legal and statutory
obligations.
Given the current conservation measures under section 7 of the Act
and the Marine Mammal Protection Act (MMPA), we believe that the
designation will not result in significant additional conservation
measures. However, critical habitat designation increases the
protections afforded a listed species by focusing attention on the
species' habitat needs, and by ensuring that Federal agency actions do
not destroy or adversely modify designated areas.
Although the Alaska populations are predicted to decline by mid-
century due to loss of sea ice habitat from climate change, polar bears
are expected to exist in Alaska in reduced numbers. In addition, it is
possible that actions taken now to reduce the anthropogenic
contribution of greenhouse gases could slow the current trend in sea
ice decline, particularly during the second half of the century.
Therefore, it is important to protect the essential polar bear habitats
in Alaska.
Comment 14: Several commenters suggested that the following PCE
should be added: unobstructed access to, and absence of disturbance
from humans and human activity on the sea ice and barrier islands.
Our response: We believe that the barrier island PCE as described
in this critical habitat designation adequately provides polar bears
unimpeded access to sea ice and barrier islands. We base our assertion
on our experience that a 1.6 km (1 mi) buffer has provided adequate
protection for known dens from human activities, and the study
(Anderson and Aars 2008, p. 503) that indicated that females with cubs
are sensitive to noise disturbance at distances of approximately 1.6 km
(1 mi). Thus, the no-disturbance zone surrounding the barrier islands
should adequately protect polar bears denning, resting, or moving along
the coastal barrier islands from human disturbance. With respect to the
sea-ice habitat, we believe that the overall level of human disturbance
would be very low, especially given the remoteness, relatively low
level of human activity, and extent of the designated sea-ice habitat
(over 400,000 km\2\ (154,000 mi\2\)).
Comment 15: Several commenters suggested that the sea ice PCE is
too narrowly defined as simply the ice itself and currently omits
biological features essential to the conservation of polar bears. They
suggest the Service consider including in the PCE: the ice seals
(primarily ringed and bearded seals) upon which polar bears prey, the
quality of the water column under the ice, and the biotic community in
the water column that supports the relatively short Arctic food chain.
They note that declines in seal pupping have resulted in well-
documented declines in polar bears.
Our response: Section 3(5)(A)(i) of the Act defines critical
habitat to include areas within the geographical area occupied by the
species on which are found those physical or biological features
essential to the conservation of the species and which may require
special management considerations or protection. Throughout our
discussion of critical habitat, we have highlighted the importance of
ice-dependent seals to polar bears and the importance of sea ice to
polar bears for normal feeding behavior. The sea ice PCE is intended,
in part, to identify habitat that supports polar bear prey and normal
feeding behavior. Therefore, we have added text to the sea ice PCE
stating that the sea-ice habitat includes adequate prey resources
(primarily ringed and bearded seals) to support polar bears. We believe
that the ability of sea-ice habitat to support polar bear prey and
normal feeding behavior reflects the quality of the water column under
the sea ice and the quality of the biotic community that supports the
Arctic food chain.
Comment 16: One commenter recommended that we conduct additional
research and denning surveys along the Chukchi Sea coast to reassess
the coastal region for its potential as critical habitat and determine
the effects
[[Page 76094]]
on the population as habitat loss issues arise.
Another commenter suggested the Service should include terrestrial
denning areas along the Chukchi Sea coast in western Alaska to protect
occupied and unoccupied denning habitat that may become more important
with the predicted loss of sea-ice habitat and the stress of over-
hunting.
Our response: The Service acknowledges that terrestrial denning
habitat containing the appropriate topographic, and some macrohabitat,
features occur in areas west of Barrow, Alaska. However, we have added
access via sea ice to the terrestrial denning habitat PCE because large
expanses of open water and the timing of ice freeze-up can prohibit
polar bear access to den sites. For example, denning does not occur on
Hopen Island, the southernmost island of Svalbard, Norway, when
freezing of the sea ice occurs too late, which precludes access to den
sites (Derocher et al. 2004, p. 166). In addition, Fischbach et al.
(2007, p. 1,402) concluded that terrestrial denning is restricted by
greater open water fetch. Few bears have been documented to den in
areas west of Barrow, Alaska (U.S. Geological Survey unpublished data).
Historically, polar bears from the Chukchi/Bering Seas population have
not had access to denning habitat in western Alaska because at the end
of the summer sea melt season large expanses of open water separate the
bears from western Alaska. Thus, they have used terrestrial denning
sites on Wrangel Island and the Chukotka Peninsula, areas that are in
proximity to the sea-ice edge, when the sea ice is at its minimum
extent in the fall. Presumably, energetic demands limit the ability of
pregnant polar bears to swim great distances. Therefore, access from
summer foraging habitats to available terrestrial denning habitats
would be limited to areas with fall sea-ice access. Thus, we added
access to suitable terrestrial denning habitat to the terrestrial
denning habitat PCE. Consequently, we have determined that the areas in
western Alaska do not contain the specific features essential to the
conservation of polar bears for terrestrial denning habitat and did not
designate critical habitat in western Alaska.
The Service is currently conducting research on the Chukchi-Bering
Seas polar bear population. We will continue to evaluate the importance
of these areas in the future as new information becomes available.
Comment 17: Many commenters, including the State of Alaska,
indicated that the area proposed for critical habitat designation is
too large and should be reduced based on a spatial-temporal analysis
and designated on a seasonal basis or should be dynamic to reflect the
changing ice conditions throughout the year or even between years. They
stated that areas with less than 15 percent sea-ice concentration do
not contain the physical and biological features essential for the
conservation of polar bears, and that the Service doesn't explain why
special management measures may be needed for sea-ice habitat, as that
area is basically uninhabited and inhospitable to humans. They added
that most of the area is currently unmanaged. Another commenter
suggested that the Service should develop a system for determining when
sea-ice conditions meet the three criteria of (a) greater than 50
percent ice concentration, (b) near leads, open water, or ephemeral
polynyas, and (c) water depths less than 300 m (984 ft).
Our response: The Service evaluated the potential for incorporating
specific seasonal and geographical parameters when designating the sea-
ice critical habitat, but we determined that the extreme variability
and dynamic nature of the sea ice, especially in the face of climate
change, made it difficult and impractical to partition the sea-ice
habitat into meaningful seasonal and geographic units. In addition,
according to our implementing regulations (50 CFR 424.12(c)), critical
habitat boundaries should be clearly defined for the public. A
changeable boundary that was defined based on the seasonal presence of
sea-ice would not provide the clarity or certainty to the public and
stakeholders as to which areas are included in critical habitat. It
also may be in conflict with our regulations which state that we are to
define the specific areas, and then delineate and describe those areas
in the regulation of the rule-making. Further, specific case law has
clarified that the critical habitat need not contain the essential
features at all times or be used consistently by the species, but
rather can be used temporally during migration, movement, denning, or
other life history functions (Arizona Cattle Grower's Ass'n v. Salazar,
606 F. 3d 1160 (9th Cir. 2010)). We believe that spatial-temporal
considerations can be evaluated as appropriate for individual projects
on a case-by-case basis. In addition, Federal agencies and potential
stakeholders, such as the oil and gas industry, that may need to
consult based on the designation of critical habitat, need well-defined
boundaries for planning purposes. Planning projects and assessing
impacts would be very difficult if the boundaries of critical habitat
were constantly changing. One of the educational benefits of a critical
habitat designation is that it provides certainty to consulting
agencies on the location and extent of critical habitat.
In response to the second comment on the potential need for special
management considerations, section 3(5)(A)(i) of the Act states that
the physical and biological features essential to the conservation of
the species ``may'' require special management considerations or
protections. The Act does not state that those features must require
such management or protection. Nonetheless, the Service believes that
special management considerations may be necessary due to the expansion
of offshore oil and gas operations and the absence of the following:
updated oil spill response plans that adequately deal with polar bears
and their habitat; demonstrated methods for effective oil spill clean
up in the broken sea-ice conditions in the Arctic; and adequate
quantities of oil spill equipment to protect critical habitat. An oil
spill in Alaska similar to the recent catastrophic oil spill from the
Deepwater Horizon rig in the Gulf of Mexico would be even more
difficult to control and clean up effectively due to the extreme Arctic
conditions, limited resources available locally, and the difficulty of
accessing these very remote areas particularly during winter.
Comment 18: One commenter suggested that the Service should create
an adaptive framework to incorporate a rolling inland boundary for the
terrestrial critical habitat to account for any Beaufort Sea coastal
erosion caused by climate change.
Our response: Jones et al. (2009, p. 2) determined that coastal
erosion along a 64-km (40-mi) stretch of the Beaufort Sea has more than
doubled since the mid-1950s to a rate of 13.7 meters per year (m/yr)
(45 feet per year(ft/yr)) between 2002 and 2007. In our assessment of
the foreseeable future in the 2008 polar bear listing rule, we
determined that 45 years was a reasonable timeframe based on the
reliability of data to assess the threats of climate change and the
ability to assess the impact of these threats on polar bear
populations. Using 2050 as the foreseeable future based on the
predicted loss of sea-ice habitat for the Chukchi-Bering Seas and the
southern Beaufort Sea populations (Amstrup et al. 2008, p. 231) and
assuming the rate of coastal erosion (14 m/yr, 46 ft/yr) in the
Beaufort Sea between 2002 and 2007 (Jones et al. 2009, p. 2) did not
change,
[[Page 76095]]
we determined that approximately 0.545 km (0.3 mi) of the coast would
be lost by 2050. Following further evaluation based on the public
comment, we decided that the method we used to determine the inland
boundary of the terrestrial denning habitat provides a zone wide enough
to compensate for changes due to coastal erosion. As new information
becomes available, we will continue to monitor the situation to
determine if additional special management considerations are needed.
In addition, according to our implementing regulations (50 CFR
424.12(c)), critical habitat boundaries should be clearly defined for
the public. A changeable boundary that was defined based on extent of
coastal sea erosion at any particular point in time would not provide
the clarity or certainty to the public and stakeholders as to which
areas are included in the critical habitat designation at that time. It
also may be in conflict with our regulations which state that we are to
define specific areas, and then delineate and describe those areas in
the regulation of the rule-making.
Comment 19: One commenter thought that the proposed critical
habitat designation is based on the premise that polar bears need vast
areas of solitude. The commenter further stated that polar bears do not
need vast areas of solitude as evidenced by congregations around whale
carcasses.
Our response: Although polar bears may opportunistically feed on
whale carcasses, as stated in the proposed rule, their primary prey is
ice-dependent seals, which are widely distributed in sea ice covering
the continental shelf. The distribution and movements of polar bears in
the United States are closely tied to the seasonal dynamics of sea-ice
extent as it retreats northward during summer melt and advances
southward during autumn freeze. Sea ice disappears from the Bering Sea
and is greatly reduced in the Chukchi Sea in the summer, and polar
bears occupying these areas move as much as 1,000 km (621 mi) to stay
with the retreating pack ice (Garner et al. 1990, p. 222; Garner et al.
1994, pp. 407-408). Average activity areas of females in the Chukchi-
Bering Seas population (244,463 km\2\, range 144,659-351,369 km\2\
(94,387 mi\2\, range 55,852-135,664 mi\2\)) (Garner et al. 1990, p.
222) were more extensive than those in the Beaufort Sea population
(166,694 km\2\, range 14,440-616,800 km\2\ (64,360 mi\2\, range 21,564-
52,380 mi\2\)) (Amstrup et al. 2000b, p. 960). These figures illustrate
the large areas typically occupied by polar bears. Thus, the
designation is based not on the need for solitude but on the activity
patterns of polar bears, which demonstrate that they need vast areas of
sea ice to pursue the prey upon which they depend.
Comment 20: One commenter mentioned that the details of the denning
habitat in the Barrow area are not defined, so it is difficult to
determine where the actual denning areas are.
Our response: The designation of critical habitat is not intended
to identify actual denning sites but rather to offer protection to the
essential features that support denning habitat. The U.S. Geological
Survey (USGS) verified the denning habitat mapped between Barrow,
Alaska, and the Kavik River, Alaska, during the fall of 2010. Once the
detailed denning habitat has been field verified and peer reviewed,
information on the detailed denning site habitat from Barrow, Alaska,
to an area approximately 32.2 km (20 mi) east of the Colville River
will be available to the public. This will not change the critical
habitat designation, but rather will give the public more detailed
information about the location of specific den site features within the
habitat.
Comment 21: Two commenters suggested that the Service should
discuss the potential for contaminants other than hydrocarbons, in
particular persistent organic pollutants that may adversely affect
polar bear habitat.
Our response: A summary of the persistent organic pollutants (POPs)
is discussed in the final rule listing the polar bear as a threatened
species under the Act (May 15, 2008, 73 FR 28290). In that rule, we
stated that many of the POPs are transported to the Arctic via large
rivers, air, and ocean currents from more southerly latitudes and end
up in the Arctic marine environment, including the sea ice and adjacent
terrestrial habitats. In that rule, we also determined that, although
contaminants may become a more significant threat in the future for
polar bear populations experiencing declines related to nutritional
stress brought on by changes in the sea ice, contaminants did not
currently threaten polar bears or their habitat in Alaska.
Comment 22: Several commenters indicated that the Service should
consider the effects of habitat fragmentation and should keep large
areas of protected habitat in the designation as these will provide the
most valuable protection as polar bears try to adapt to the changing
climate.
Our response: The designated critical habitat occurs as contiguous
zones along the coastline in northern and western Alaska within the
range of the southern Beaufort Sea and the Chukchi-Bering Seas
populations. The area chosen maintains the connectivity of the habitat
and accounts for the changes of the dynamic sea-ice habitat both in
time and space. Therefore, we believe that we have adequately
designated significantly large patches of habitat that will facilitate
movements between feeding areas, den sites, and resting areas and that
will support the survival and recovery of the species.
Comments Requesting Inclusions to the Proposed Critical Habitat
Designation
Comment 23: The Service received numerous comments to protect all
the areas that polar bears occupy in the United States. Commenters
argued that areas currently unoccupied or marginal may take on greater
importance in the future as prime habitat is lost.
Our response: Using the best scientific information available, we
have determined that the critical habitat areas that we are designating
are sufficient for the conservation of polar bears in Alaska. As stated
in the final listing rule, further global warming is ``largely set''
through mid-century because of GHGs already present in the atmosphere,
the GHGs likely to be emitted over the next several decades, and
interaction among climate processes. With this warming the polar bear's
sea-ice habitat will continue to decline. In the final listing rule, we
predicted that the polar bear populations in Alaska likely will decline
significantly by mid-century (May 15, 2008, 73 FR 28241). However,
polar bears are expected to exist in Alaska in reduced numbers. It is
our intent that the designation of critical habitat will protect the
functional integrity of the features essential for polar bear life
history requisites into the future.
Comment 24: Several commenters supported the inclusion of the large
area currently proposed due to the extensive inter-annual variation in
the distribution of the different sea ice habitat types and the large
areas used by polar bears each year. They indicated that such areas are
required to prevent polar bears themselves from becoming endangered and
for recovery.
Our response: We agree. Polar bears have large home ranges, and
although they may use only a portion of a home range in a given year,
based on sea-ice cover, they show a strong fidelity to activity areas
that are used over multiple years. There is also evidence that polar
bears use the sea-ice habitat differently based on age, sex, and
reproductive status (Stirling et al. 1993, p. 20). It is important that
the connectivity of these habitats remain
[[Page 76096]]
intact to maintain the functional integrity of these habitats for polar
bears (Webster et al. 2002, p. 77). In addition, the dynamic nature of
the sea ice with respect to extent and quality necessitates that large
areas of sea ice are required for the survival and recovery of the
species. For example, the ice in the Chukchi and Bering seas may move
over 1,287 km (800 mi) between the maximum and minimum extents each
year.
Comment 25: The Service received comments that the area of no-
disturbance should be increased to provide additional protection from
human disturbance when these habitats are used for resting and denning
around the barrier islands.
Other commenters suggested that the no-disturbance zone was not
required because polar bears do not need these areas for resting or
movement corridors as human activities have occurred in these areas
without any discernable impacts and polar bears are capable of
successfully denning in close proximity to human activity.
Our response: Polar bears may find the habitat conditions on
Barrier Islands (Unit 3) suitable for denning or resting but are
unlikely to use these habitats if disturbed by the presence of humans.
Denning females typically seek secluded areas away from human activity.
Thus, the functional usefulness of this habitat requires an area that
is free from human disturbance. Based on the documented responses of
polar bears to human disturbance, we believe that the proposed no-
disturbance zone of 1.6 km (1 mi) as described in the proposed critical
habitat rule (October 29, 2009, 74 FR 56058) is sufficient to maintain
the functional integrity of the suitable barrier island habitat for
resting, denning, and movements along the coast.
Comment 26: Several commenters recommended the Service should
increase the terrestrial denning habitat adjacent to the Beaufort Sea
inland for one or more of the following reasons: (1) To account for
Beaufort Sea coast erosion by climate change; (2) because polar bears
are increasingly using terrestrial versus sea-ice habitat for denning
in response to climate change; and (3) to provide a greater buffer from
disturbance. We received one recommendation to use the upper 95-percent
confidence interval reported by Anderson and Aars (2008), which would
extend the inland boundary of the terrestrial denning habitat 2.8 km
(1.7 mi). In addition, we received many comments to include 100 percent
of the den sites and the entire coastal plain of the Arctic National
Wildlife Refuge in the terrestrial denning critical habitat.
Our response: We believe the method developed by USGS that we used
to identify critical and essential maternal den habitat on the North
Slope coastal plain of Alaska is valid, and the best available
information, because it: (1) Is designed to capture a robust estimation
of the inland extent of the den use; (2) is a straightforward, unbiased
method for estimating the area in which 95 percent of the maternal dens
are located inland perpendicular to the coastline; (3) accurately
represents polar bear denning concentrations in the zone from the
United States-Canadian border to the Kavik River and the zone from the
Kavik River to Barrow, Alaska, along the northern coast of Alaska; and
(4) uses an 8-km (5-mi) concentric band that functionally identified a
zone wide enough to account for potential changes likely to occur to
this area due to climate change, including coastal erosion. Polar bears
have occasionally denned up to 80 km (50 mi) inland, but this is a
relatively rare occurrence as a majority of the bears have been
documented to den relatively close to the coast (further explanation
included in response to comment 42). We wanted to capture the areas
where polar bears actually den and believe that the methods used,
including the use of 95 percent of maternal dens located by telemetry
and verified as confirmed or probable (Durner et al. 2009b, p. 4),
accurately capture the major denning areas and, therefore, the features
essential to polar bear denning habitat.
Comment 27: Several commenters suggested the Service should include
areas outside the United States that polar bears currently occupy based
on what scientific data indicate may be necessary to facilitate the
species' adaptation to climate change.
Our response: Although the Service recognizes that terrestrial
denning habitat on Wrangel Island and the Chukotka Peninsula, Russia,
exist, we lack the legal authority to designate critical habitat
outside the United States and its territories. According to our
implementing regulations at 50 CFR 424.12(h), ``Critical habitat shall
not be designated within foreign countries or in other areas outside of
United States jurisdiction.''
Comment 28: The Service received several comments suggesting that
areas proposed for extension should include sea-ice habitat beyond the
300-m (984-ft) isobath out to 321 km (200 mi) or up to the U.S.
Exclusive Economic Zone (EEZ) zone in northern Alaska. They suggest
that the Service increase the sea-ice habitat designated as critical
habitat to acknowledge that these areas are likely to be important to
the movements and migration of polar bears and that in the future these
areas are likely to shift significantly in response to changing sea-ice
availability.
Our response: We do not anticipate that polar bears would remain
long in the ice-covered areas over deep water of the central basin in
the southern Beaufort Sea. This is based on the premise that ringed and
bearded seals, the species on which polar bears primarily feed, would
not remain in these areas but rather would remain primarily in the
shallower waters over the continental shelf in the absence of nearshore
sea ice (Stirling et al. 1982, p. 13; Kingsley et al. 1985, p. 1,209).
Also, designating sea ice beyond the 300-m (984-ft) isobath up to the
EEZ zone in northern Alaska is not necessary to protect polar bears'
ability to disperse to new habitats via the sea ice over the central
basin in the southern Beaufort Sea.
Comments Requesting Exclusions to the Proposed Critical Habitat
Designation
Comment 29: Several commenters suggested exclusion of areas outside
of the proposed designated critical habitat.
Our response: Requests for exclusion of areas that occur outside
the boundaries proposed for designation as critical habitat were not
considered further, because these areas were not covered by the
designation as they were determined not to contain the essential
features or be essential themselves.
Comment 30: Several commenters indicated that there is no
information that would justify excluding any proposed areas from the
final critical habitat designation under section 4(b)(2) of the Act.
Our response: We do not agree with this hypothesis. The Secretary
has exerted his discretion, under section 4(b)(2) of the Act, to
exclude the Native communities of Barrow and Kaktovik, located along
the coast in northern Alaska adjacent to the Beaufort Sea, which are
within the boundaries of the proposed critical habitat designation,
because the benefits of exclusion outweigh the benefits of inclusion,
and the failure to designate these areas will not result in extinction
of the species. Please refer to the section below entitled Exclusions
Under Section 4(b)(2) of the Act for a more detailed discussion of this
exclusion.
Comment 31: One commenter noted that the proposed critical habitat
included at least one island that no longer exists in one of the river
deltas on the North Slope.
[[Page 76097]]
Our response: The Service's proposed critical habitat was drawn in
part from USGS topographic maps that were produced in 1955, and some of
the barrier islands present in 1955 have since eroded. The loss of this
small island since 1955 illustrates the ephemeral nature of the barrier
islands, particularly in river deltas, which are constantly moving due
to erosion and deposition from winds, currents, and the ice. We expect
some islands will disappear and others may form in response to the
changing climate conditions. Because data indicate that polar bears
will use these islands when present, for denning, refuge from human
disturbance, and movements along the coast to access maternal den and
optimal feeding habitat, we determined that they are an essential
feature. Therefore, new barrier islands that form are considered an
essential feature of critical habitat for the polar bear. Individual
projects proposed on any barrier island and their associated spits
within the range of the polar bear in the United States, and the water,
ice, and terrestrial habitat within 1.6 km (1 mi) of these islands,
will be evaluated on a case-by-case basis with respect to section 7 of
the Act.
Comment 32: The Service received comments to exclude areas in which
oil and gas exploration, development, production, and transportation
activities are occurring or are planned in the future.
Our response: The existing manmade structures within critical
habitat, including those within oil fields, do not contain the
essential features for polar bears, are not essential themselves, and
therefore do not meet the definition of critical habitat. As a result
these features are not included in the final designation of critical
habitat; they have been textually excluded because of the mapping scale
of the designation.
Because of the uncertainty of activities at the leasing stage, the
lack of management plans in place to specifically protect polar bear
habitat, and the potential for negative impacts to polar bear critical
habitat in these extremely large areas, we believe that there may be
conservation benefits to the polar bear if large areas such as the
Beaufort Sea Proposed Program Area (2007-2012) and the Chukchi Sea
Proposed Program Area (2007-2012) remain in the designation. Inclusion
of the areas associated with the oil and gas industry as part of the
polar bear critical habitat would allow for section 7 consultations to
occur for both polar bears and polar bear critical habitat. Therefore,
the Secretary has decided not to exercise his discretion to exclude
from critical habitat the areas within the current and proposed lease
sale areas. However, as noted above, existing manmade structures within
the oil fields are not included within the critical habitat
designation.
Comment 33: Several commenters requested that manmade structures
(e.g., seawalls, docks, pipelines) be excluded, because they occur in
very limited areas, and generally do not contain the physical or
biological features essential to the conservation of the species.
Our response: We agree and are not including existing manmade
structures in the final critical habitat designation, because these
structures do not contain the essential features for polar bears, nor
are they essential themselves. Examples of manmade structures not
included are houses, gravel roads, airport runways and facilities,
pipelines, central processing facilities, saltwater treatment plants,
well heads, pump jacks, housing facilities or hotels, generator plants,
construction camps, pump stations, stores, shops, piers, docks,
jetties, seawalls, and breakwaters. Existing manmade structures are
excluded wherever they occur within the critical habitat designation,
regardless of landownership or whether these structures are on or off
shore.
Comment 34: Several commenters, including the State of Alaska,
suggested that town sites within communities (generally the core areas
where people live) be excluded from critical habitat. Other commenters
suggested that in addition to excluding the core areas of human
habitation there should be adequate funding and cooperative plans to
reduce human-bear interactions in these communities.
Our response: We recognize the perceived conflict in designating
critical habitat in areas with ongoing programs to deter polar bears
from the area based on safety concerns for both people and bears. The
Secretary has exerted his discretion to exclude the communities of
Barrow and Kaktovik, the only two Alaska communities, from the final
critical habitat designation (see Exclusions under Section 4(b)(2) of
the Act below). The North Slope Borough provided the village district
boundaries and the legal descriptions of those boundaries for the North
Slope communities of Barrow and Kaktovik.
In response to the second part of the comment, the Service has been
actively working with the Arctic National Wildlife Refuge and local
residents in the village of Kaktovik to reduce bear-human interactions.
Accomplishments to date have included setting up a Kaktovik polar bear
committee, acquiring funds through tribal grants, conducting bear
patrols, conducting safety and bear deterrence training, developing
safety guidelines, and the developing polar bear viewing guidelines.
The Service is expanding this effort to more communities as resources
allow.
Comment 35: Several comments requested that we exclude from the
designation lands immediately surrounding the inhabited communities to
allow for economic growth and expansion. One commenter suggested a 32-
km (20-mi) radius around Barrow, and others suggested adding a buffer
of a 1.6-km (1-mi) radius around all coastal villages and organized
municipalities to account for the human disturbance. Specific
communities mentioned in the comments include Barrow, Kivalina,
Kotzebue, Nome, Wainwright, and Kaktovik.
Our response: Currently there is no overlap with the critical
habitat designation and the communities west of Barrow. Consequently,
there will be no conflicts with town expansion in these areas. Only the
North Slope communities of Barrow and Kaktovik overlap with the
proposed critical habitat designation, and these communities have been
excluded from the final designation (see Exclusions under Section
4(b)(2) of the Act below). In addition, the legal boundaries that
define Barrow are larger than the currently developed areas and thus
provide for town expansion. New construction on private land outside
the town boundaries would only require section 7 consultation with the
Service if Federal funding or a Federal permit was required. However,
consultation does not mean that new construction could not occur, but
would mean that impacts to polar bear critical habitat would need to be
considered. In addition, as explained in the Criteria Used to Identify
Critical Habitat section below, existing manmade structures are not
included in the critical habitat designation.
Comment 36: The Service received a few comments that suggested the
industrial area of Deadhorse be excluded from critical habitat.
Our response: Deadhorse is treated differently than the Alaska
Native communities with respect to exclusion for the following reasons:
(1) Very few permanent residents live in Deadhorse and very few if any
families live there; Deadhorse is primarily a staging area for
materials and personnel working in activities associated with the oil
and gas operations; (2) Deadhorse is not an incorporated city and thus
has no legally delineated boundaries; (3) movements of personnel and
equipment
[[Page 76098]]
are highly restricted, unlike residents in the villages; (4) polar
bears are hazed from actively used areas but are allowed to exist in
the areas between the widely dispersed network of roads, pipelines,
well pads, and buildings; and (5) there is very little polar bear
critical habitat in the vicinity of Deadhorse and the airport.
Therefore, the Secretary has decided not to exercise his discretion to
exclude Deadhorse from the polar bear critical habitat designation.
However, removal of existing manmade structures from the designation
will effectively remove most of the core human activity area of
Deadhorse from the critical habitat designation.
Comment 37: We received comments that recommended the exclusion of
all Native-owned lands (including those owned by Native and Village
corporations, local governments, and Native allotments) from the
critical habitat designation. The commenters also noted that the
corporation lands are for the perpetual benefit of its shareholders.
Our response: The Secretary has exerted his discretion to exclude
the town site areas of Barrow and Kaktovik (see Exclusions under
Section 4(b)(2) of the Act below). In addition, any existing manmade
physical structures, including those owned by the Native communities,
are not included in the designation. However, with respect to the large
areas of undeveloped land owned by the Native and Village corporations,
because of the uncertainty of future development, we have determined
that future activities are speculative at this time. Any future
activities that may affect polar bears, and, if there is a Federal
nexus, polar bear habitat, would be addressed through section 7 of the
Act. In addition there are educational benefits of informing land
managers of areas that are essential to polar bears for any projects
that involved a Federal nexus. Therefore, the Secretary has decided not
to exercise his discretion to exclude Native Village and Corporation
lands that are not currently developed.
Comment 38: While there is currently no large-scale coal mining
operations other than the Red Dog Mine in the proposed critical
habitat, there is the potential for future operations in both northern
and western Alaska. Several commenters stated that the economic
limitations to potential future coal mining in these areas due to the
designation of critical habitat should be justification to remove these
areas from the critical habitat.
Our response: The designated polar bear critical habitat does not
overlap with areas containing the coal deposits on the North Slope or
the western coal fields in Alaska. Therefore, these lands are not being
considered for exclusion from the designated polar bear critical
habitat.
Comment 39: The U.S. Air Force (USAF) requested exemption of
Department of Defense (DOD) lands from the critical habitat designation
under section 4(a)(3)(B)(i) of the Act, specifically, radar sites that
overlap with southern Beaufort Sea and the Chukchi-Bering Seas polar
bear populations. These sites are: Wainwright Short Range Radar Site
(SRRS); Point Barrow Long Range Radar Site (LRRS); Oliktok LRRS; Bullen
Point SRRS; Barter Island LRRS; Cape Lisburne; Kotzebue LRRS; Tin City
LRRS; Point Lonely (former SRRS); Point Lay (former LRRS); West Nome
Tank Farm (former LRRS); and Cape Romanazof (LRRS). The USAF requested
the exemption of these radar sites based in part on the critical role
these sites play as part of the Alaska Radar System in support of the
Alaska North American Aerospace Defense Command (NORAD) Region and
Homeland Defense to detect, track, report, and respond to potentially
hostile aircraft approaching our borders and entering our airspace.
Our response: There are two sections of the Act that provide
mechanisms for evaluating DOD lands in relation to critical habitat:
section 4(a)(3)(B)(i) and section 4(b)(2). Section 4(a)(3)(B)(i) of the
Act states, ``The Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense, or designated for its use, that are subject to an
integrated natural resources management plan prepared under section 101
of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.'' Section 4(b)(2) of the
Act allows the Secretary to use his discretion to exclude areas from
critical habitat for reasons of national security if the Secretary
determines the benefits of such an exclusion exceed the benefits of
designating the area as critical habitat. However, this exclusion
cannot occur if it will result in the extinction of the species
concerned.
The USAF has submitted two integrated natural resource management
plans (INRMPs), one for the Inactive and one for the Active Radar Sites
prepared under section 101 of the Sikes Act (16 U.S.C. 670a) for
review. After careful review of the INRMPs, we find that the plans
adequately address measures to protect polar bears and therefore
provide a benefit to the species. As a result, the five sites that
overlap with the proposed polar bear critical habitat designation,
Point Lonely (former SRRS), Point Barrow LRRS, Oliktok LRRS, Bullen
Point LRRS, and Barter Island LRRS, are exempt from the polar bear
critical habitat designation pursuant to section 4(a)(3) of the Act
(see Exemptions below).
Comment 40: The Bureau of Land Management (BLM) has requested the
Secretary to exercise his authority under section 4(b)(2) of the Act to
exclude the area within the National Petroleum Reserve--Alaska (NPR-A)
based on increased agency costs without coincident increase to polar
bear conservation or recovery.
Our response: The BLM's Alaska State Office proposes to lease
tracts for oil and gas exploration and development during Fall of 2010.
The BLM prepared two integrated activity plans (IAPs), one for the
northeast planning area and the other for the northwest planning area
of NPR-A. The NPR-A area overlaps with all three designated units of
critical habitat for polar bears in Alaska. Each IAP has stipulations
and required operating procedures (ROPs) that afford some protection to
coastal areas, rivers, and barrier islands that contain the majority of
the PCEs for polar bear critical habitat. Because the exact extent,
location, and timing of developments, and their resulting effects, are
not known, we are unable to determine if the stipulations and ROPs are
adequate. In addition, there is an exception clause in both IAPs for
the stipulations and ROPs. The exception clause states that exemptions
could be granted if: (1) The alternative proposed by the lessee or
permittee fully satisfies the objectives of the Lease Stipulation or
ROP; (2) compliance with the stipulation or ROP would not be
technically feasible; (3) compliance with the stipulation or ROP would
be economically prohibitive; or (4) the proposed alternative is
environmentally preferable. Because of the lack of specificity, and the
exceptions, in the IAPs, the Secretary has decided not to exercise his
discretion to exclude from critical habitat the areas within the
current and proposed lease sales that are not currently developed.
However, as discussed throughout this final rule, existing manmade
structures are exempt from the final critical habitat designation
because they do not contain features essential to polar bears, nor are
they themselves essential to the species.
Comment 41: The State of Alaska and other commenters suggested that
areas where polar bears occur infrequently should be excluded from the
designated
[[Page 76099]]
critical habitat. Areas that have been suggested for exclusion are
Norton Sound, Barrier Islands from Norton Sound to Hooper Bay, interior
of St. Lawrence Island, and the Seward Peninsula.
Our response: Telemetry data and periodic polar bear sightings by
coastal residents indicate that polar bears occur in all of these
areas. For example, during the period from July to September 2001, 50
bears were stranded on St Lawrence Island during the summer and most
were legally killed by local subsistence hunters. The fact that polar
bears may use these areas infrequently does not mean that these areas
do not contain the features essential to the conservation of polar
bears. To the contrary, in the recent decision of Arizona Cattle
Grower's Assoc. v. Salazar, 2009 U.S. App. Lexis 29107 (June 4, 2010),
the Ninth Circuit affirmed that the Service has the authority to
designate as ``occupied'' areas all areas used by a listed species with
sufficient regularity that members of the species are likely to be
present during any reasonable span of time. Therefore, the Secretary
has decided not to exercise his discretion to exclude from critical
habitat the areas where polar bears occur infrequently.
Comment 42: We received comments that the denning habitat was
overly broad and should be limited to those areas that specifically
provide suitable den site habitat. It was suggested that denning
habitat be limited to just those areas that have the physical and
biological features for den sites as indicated by USGS. Another comment
questioned the need to designate critical habitat for denning 32 km (20
mi) inland east of the Canning River when 67 percent of denning
occurred within 8 km (5 mi) of the coastline and 83 percent occurred
within 16 km (10 mi) of the coast.
Our response: As indicated in the October 29, 2009, proposed rule,
the denning habitat consists of more than just the physical
characteristics that allow for construction of a den site. Polar bears
need the ability to access potential den sites and areas to acclimate
the cubs after den emergence in the spring. Pregnant females often
inspect and partially excavate several den sites prior to choosing the
one that they will ultimately use. If a female polar bear abandons her
den due to disturbance prior to the cubs being old enough to survive
outside the den, her cubs will die. Therefore, females often seek
secluded denning areas to give birth and raise their cubs. There is
considerable denning habitat on the North Slope but polar bears do not
use this randomly. Polar bears prefer coastal bluffs and river banks
within close proximity to the sea ice for den sites. Choosing den sites
close to the coast allows females to access feeding areas before and
after denning and reduces the energy expenditure and risks of predation
on cubs by wolves (Ramsay and Stirling 1984, pp. 693-694) during long
walks from den sites located further inland.
There are several factors that support the designation of the area
in which 95 percent of denning occurs: (1) There is uncertainty
associated with the fine-scale mapping of the potential den site areas
based on the physical characteristics of the topography on the North
Slope. For instance, verification of known den sites within the mapped
denning habitat was more accurate for bluff habitat than in relatively
flat tundra areas with low relief; (2) the terrestrial core denning
area was based on the locations of a limited number of radio-collared
female polar bears. In any given year approximately 20-40 dens are
located via telemetry, but that is a small subset of the total number
of females (approximately 240) thought to be denning in any one year
from the southern Beaufort Sea population; (3) only a portion of the
potential denning habitat on the North Slope has been mapped; and (4)
additional benefits are provided through section 7 consultation on
polar bear habitat as well as polar bears. Rather than designate the
entire known denning habitat on the North Slope, we believe that the
area encompassing 95 percent core denning areas as identified in this
final rule best describes and contains the physical and biological
features for polar bear denning that are essential to the conservation
of the species.
Comment 43: Several commenters, including the State of Alaska,
noted that not all barrier islands have suitable topography for denning
or other essential polar bear habitat features or activities. They
suggested that the Service evaluate the relative conservation value of
each barrier island and include only those that are important.
Our response: We recognize that not all barrier islands have
suitable denning habitat. However, barrier island habitat is not used
just for denning; it is also important for other essential life history
functions such as refuge from human disturbance and for movements along
the coast to access dens and optimal feeding areas. As a consequence,
we have determined that barrier islands are a physical feature
essential to the conservation of the polar bear.
Comments on the Effects of the Proposed Critical Habitat Designation
Comment 44: Several commenters, including the State of Alaska,
expressed concern that the designation of critical habitat will
interfere with the subsistence harvest and the current practice of
moving subsistence-harvested whales away from communities and hunting
camps to reduce adverse bear-human interactions.
Our response: The designation of critical habitat for polar bears
in Alaska will not affect subsistence harvest of polar bears or the
movement of whale carcasses away from communities for safety reasons.
Section 10(e) of the Act states, ``Except as provided in paragraph (4)
of this subsection the provisions of this Act shall not apply with
respect to the taking of any endangered species or threatened species,
or the importation of any such species taken pursuant to this section,
by--(A) any * * * Alaskan Native who resides in Alaska * * * if such
taking is primarily for subsistence purposes.'' Subsistence harvest is
specifically exempt under the Act and the MMPA and, as such, will not
be affected by the designation of critical habitat. The practice of
moving whale carcasses taken for subsistence purposes away from the
villages is in the best interest of both polar bears and humans.
Further, there is no Federal nexus to these activities as described,
and thus a section 7 consultation would not be required.
Comment 45: We received comments that the designation of critical
habitat will adversely affect the Service's working relationship with
the Alaska Native community, industry, and the State of Alaska. These
comments also expressed concern about the effect from multiple layers
of critical habitat designations (for different species) on the local
people.
Our response: The Marine Mammals Management Office of the Service
has worked closely with Alaska Native communities for many years
through the Alaska Nanuuq Commission, North Slope Borough, and local
communities to discuss management and conservation issues concerning
polar bears and subsistence uses. The Native community has been
instrumental in assisting us with scientific studies; contributing to
the success of the Marking, Tagging and Reporting Program; managing the
southern Beaufort Sea population through the Inuvialuit/Inupiat
Agreement of 1988; and more recently in the formation and
implementation of the U.S./Russia Bilateral Agreement for the
Conservation of the Alaska/Chukotka
[[Page 76100]]
Polar Bear Population. The working relationships that we have developed
over the past 20 plus years have often provided the framework for other
Service field offices and other agencies wishing to work in Alaska
Native communities.
The Service has also been working with the oil and gas industry for
more than 20 years to minimize bear-human interactions through the
Beaufort Sea and the Chukchi Sea Incidental Take Program.
The effects of a critical habitat designation are evaluated for
each species and each designation on a case-by-case basis because of
the conservation needs of different species, and geographic regions are
subject to different baseline regulations and conservation
requirements. As such, following compliance with Executive Order 12866
and the Regulatory Flexibility Act, we are to evaluate the effects of
the individual designation alone to determine the incremental effect of
that designation itself, not the cumulative effects of the designation
in question and those already in place. However, the establishment of
critical habitat does not, on its own, prohibit development of any
kind. It simply ensures consultation with Federal action agencies on
actions that may affect designated critical habitat if a Federal nexus
in the project exists. Therefore, we do not expect that the designation
of the critical habitat for polar bears in Alaska, as mandated by the
Act, will jeopardize the working relationships that we have developed
over the past 20 years.
Comments on Special Management Considerations
Comment 46: Several commenters recommended that the Service develop
standards and guidelines for monitoring activities that potentially
affect critical habitat, develop coordinated strategies to address the
negative effects of climate change, and develop policies to assist
polar bears responding to the predicted loss of sea-ice habitat.
Many of the comments supporting our polar bear critical habitat
suggested that actions should not only be taken to reduce greenhouse
gas emissions, but also to develop alternate sources of energy.
Our response: The Service is moving aggressively to address the
challenges of climate change. We have drafted a Strategic Plan for
Climate Change that focuses on adaptation, mitigation, and engagement
with partners to seek solutions to the challenges to fish and wildlife.
Created in concert with the strategic plan is a 5-year action plan that
outlines tasks that the Service will pursue to address climate change.
One way the Service is already taking action is through the creation of
Landscape Conservation Cooperatives (LCCs). Polar bear habitat falls
within the Arctic LCC. The LCCs are management-science partnerships
that inform integrated resource-management actions addressing climate
change and other stressors within and across landscapes. They will link
science and conservation delivery. The LCCs are true cooperatives,
formed and directed by land, water, wildlife, and cultural resource
managers, and interested public and private organizations.
In concert with the LCCs are the establishment of Climate Science
Centers (CSCs) that will deliver basic climate-change-impact science to
LCCs within their respective regions, including physical and biological
research, ecological forecasting, and multi-scale modeling. These CSCs
will prioritize their delivery of fundamental science, data, and
decision-support activities to meet the needs of the LCCs. This
includes working with the LCCs to provide climate-change-impact
information on natural and cultural resources and to develop adaptive
management and other decision-support tools for managers. The Alaska
Climate Science Center, located at the University of Alaska, Anchorage,
was established in March 2010, and is one of the first in the nation.
The Service is on the forefront in addressing the challenges of climate
change and will be relying on the Arctic LCC and the Alaska Climate
Science Center to inform the best conservation practices for polar
bears in the future.
In response to the suggestion that the Service develop standards
and guidelines for monitoring activities that potentially affect
critical habitat, the Service has identified in general, and to the
extent practicable, those actions that may require consultation under
the Act. It is not possible at this time to forecast what specific
activities will occur in, or the potential impact of these activities
to, the critical habitat. The mechanism for evaluating effects of
proposed actions is through section 7 consultation under the Act.
Comment 47: One commenter requested that the Service analyze
whether special management measures or protections are needed, and was
concerned that special management considerations and protections that
may result from section 7 of the Act were omitted from the proposed
rule.
Our response: The special management considerations and protections
in the proposed rule were included for example purposes. The specific
types of management actions, such as reasonable and prudent measures to
minimize incidental take, will be determined on a case-by-case basis
during the section 7 process. We have presented some potential special
management measures or protections below in this final rule (see the
Special Management Considerations or Protections section of this rule).
The Service will continue to evaluate whether additional special
management considerations and protections may be needed in the future.
Comment 48: The Service received numerous comments that the effects
of oil and gas development throughout the Arctic are underestimated,
and when combined with the loss of sea-ice habitat, the importance of
terrestrial and nearshore habitat for resting and denning will
increase. Commenters further suggested that there is a need for a
moratorium on oil and gas activities until a comprehensive plan based
on sound science and traditional knowledge, which addresses the full
potential impact of industrial activities, is in place. They suggest
these actions would minimize the potential negative impacts of oil and
gas development on polar bear critical habitat. As an example, the
commenters cited the decision by the North Pacific Fishery Management
Council to prohibit fishing in the Arctic until more science can be
gathered.
Our response: Although these comments are not directly applicable
to the designation of critical habitat, the Service recognizes the
importance of obtaining and using the best available science to make
decisions regarding oil and gas development relative to management of
polar bears. Under section 7(a)(2) of the Act, Federal agencies must
consult with the Service on any action with a Federal nexus (an action
authorized, funded, or carried out by any Federal agency) that may
affect critical habitat, and must avoid destroying or adversely
modifying critical habitat. The prohibition on adverse modification is
designed to ensure that the conservation role and function of those
areas that contain the physical and biological features essential to
the conservation of the species, or of unoccupied areas that are
essential for the conservation of the species, are not appreciably
reduced. These actions may further be evaluated under the standards of
the MMPA.
Comment 49: The Service received recommendations to establish
guidelines for determining the types, proximity, level, and timing of
activities and impacts that may adversely modify
[[Page 76101]]
critical habitat. They suggested that the proposed critical habitat
determination takes an initial step in this direction by generally
identifying activities that may affect critical habitat under three
categories of actions: (1) Those that would reduce the availability or
accessibility of polar bear prey species, (2) those that would directly
impact a PCE, or (3) those that would render critical habitat areas
unsuitable for use by polar bears. However, they suggest the very
general discussion in the proposed designation is neither sufficient to
assure the conservation of polar bears, nor helpful to those engaged in
activities within or in proximity to designated critical habitat.
Our response: The Service has identified in general, and to the
extent practicable, those actions that may require consultation under
the Act (see Application of the ``Adverse Modification'' Standard
section of this rule). It is not possible at this time to forecast what
specific activities will occur and the potential impact of these
activities to the critical habitat. The mechanism for evaluating
effects of proposed actions is through section 7 consultation under the
Act.
Comments on Regulatory Mechanisms
Comment 50: We received numerous comments that the MMPA; Clean
Water Act (CWA) (33 U.S.C. 1271 et seq.); Clean Air Act (CAA) (42
U.S.C. 7401 et seq.); Outer Continental Shelf Lands Act (OCSLA) (43
U.S.C. 1331 et seq.); Coastal Zone Management Act (CZMA) (16 U.S.C.
1451 et seq.); Alaska Coast Management Plan (ACMP); Oil Pollution Act
of 1990 (33 U.S.C. 2701 et seq.); Federal and State regulations; and
North Slope Borough (NSB) statutes, regulations, and ordinances, (see
EIS Lease Sale 193 for larger list) adequately address management of
sea-ice habitat, and that, therefore, there is no need for the critical
habitat designation.
Our response: The Service has reviewed the existing regulatory
mechanisms at the international, national, State, and local level and
has determined that there are no known regulatory mechanisms that are
directly and effectively addressing reductions in the sea ice at this
time. For example, regulations under the MMPA effectively deal with
protection for polar bears but do not specifically protect polar bear
habitat such as sea ice. Moreover, as affirmed by various courts (e.g.,
Conservation Council for Hawaii v. Babbitt, 24 F. Supp.2d 1074, 1078
(D. HI. 1998)), the Act imposes an independent statutory duty on the
Service to designate critical habitat, regardless of how that habitat
is managed under other statutory or regulatory regimes.
Additional discussion concerning the adequacy of regulatory
mechanisms can be found in the final listing rule published in the
Federal Register on May 15, 2008 (73 FR 28212).
Comment 51: The State of Alaska commented that some of the areas
proposed for designation as critical habitat are currently managed
effectively through land-use planning, permitting, and mitigation
measures by the State, and thus do not meet the need of the second part
of the definition of critical habitat, as they are already protected.
They further commented that these areas, therefore, do not require
additional special management considerations or protection. Another
comment indicated the State regulatory mechanisms, specifically the
CZMA and the Alaska Department of Natural Resources (ADNR) Area Plans,
were adequate.
Our response: The definition of critical habitat in section 3(5)(A)
of the Act specifies that we are to designate specific areas within the
geographical area occupied by the species at the time it is listed on
which are found those physical or biological features that are
essential to the conservation of the species and which may require
special management considerations or protection. The Act does not
specify that the essential features require special management
consideration or protections. In Center for Biological Diversity et al.
v. Norton 240 F.Supp.2d 1090 (D. Ariz. 2003) the court determined that
to exclude areas where adequate management or protections are already
in place is arbitrary, and that the existence of other habitat
protections does not relieve the Service from designating critical
habitat. According to the Court, what is determinative is whether or
not the habitat is essential to the conservation of the species and
special management of that habitat is possibly necessary.
We acknowledge the efforts by the State to provide management
protections that benefit listed species and their habitat in some of
the areas proposed for critical habitat designation for polar bears.
However, these areas meet the definition of critical habitat under the
Act. Whether the habitat requires additional special management because
some protections may already exist under State of Alaska law does not
determine whether that habitat meets the definition of ``critical
habitat'' under the Act. The protections provided under State law
provide additional support to the Service's assertion that special
management considerations or protections may be necessary (see Center
for Biological Diversity et al. v. Norton 240 F.Supp.2d 1090 (D.Ariz.
2003)).
The CZMA was created to ``preserve, protect, develop, and where
possible restore or enhance the resources of the Nation's coastal
zone.'' The CZMA provides for the submission of a State program subject
to Federal approval. Under the CZMA in Alaska, there are four District
Coastal Management Plans that apply to polar bears in northern and
western Alaska (The North Slope Borough, Northwest Arctic Borough, City
of Nome, and Bering Straits CRSA). Of these four Alaska Coastal
Management Programs, only the City of Nome has an active plan in
effect. The plans are not considered to be effective at this time for
protecting polar bear habitat.
Under the Submerged Lands Act, the State of Alaska has authority
over the submerged lands and resources therein, up to, but not above,
the mean high tide line, and from the coast, extending seaward for 5.6
nautical-kilometers (3 nautical-miles (nm)). The ADNR Beaufort Sea
Area-wide 10-year Best Interest Finding for sea ice and coastal waters
within 4.8 km (3 mi) seems to be focused on the leasing phase and does
not provide any site-specific analysis of the impacts of oil and gas
exploration, development, and production and thus provides no
meaningful protection to polar bears and their habitat. Therefore, ADNR
Area Plans do not provide protections that are specifically designed to
address degradation, loss, or disturbance to polar bear habitat.
In addition, polar bears and their habitat are not included in the
State's Endangered Species Act and as such receive no protection under
this statute. Thus, the designation of critical habitat under the Act
provides for protection of critical habitat in the absence of adequate
protection of habitat under State of Alaska statutes (State Endangered
Species Act, ADNR Area Plans, and the CZMA).
Therefore, the areas managed by the State of Alaska qualify as
critical habitat under the Act, and the existing management practices
for these areas are not a substitute for Federal critical habitat
designation. Because these areas contain the features essential to
polar bear conservation, they meet the definition of critical habitat
and we are required by statue to designate them as critical habitat.
[[Page 76102]]
Comments on Procedural and Legal Compliance--Process of Designating
Critical Habitat
Comment 52: One commenter stated that: (1) The Alaska quota for
parks, preserves, monuments, and wild and scenic rivers has been met
under Alaska National Interest Lands Conservation Act (ANILCA) (16
U.S.C. 3101 et seq.); (2) section 1326(a) specifically states that
administrative closures, including the Antiquities Act, of more than
2,023 hectares (ha) (5,000 acres (ac)) can no longer be used in Alaska
and that if a larger area is administratively withdrawn: ``Such
withdrawal shall terminate unless Congress passes a joint resolution of
approval within one year after the notice of such withdrawal has been
submitted to Congress''; and (3) that under section 1326(b), ``No
further studies of Federal lands in the State of Alaska for the single
purpose of considering the establishment of a conservation system unit,
national recreation area, national conservation areas, or for related
or similar purposes shall be conducted unless authorized by this Act or
further Act of Congress.''
Our response: The designation of critical habitat for polar bears
does not increase the amount of land under Federal jurisdiction and
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area, nor does it allow the
government or public to access private lands. Therefore, the
designation of critical habitat is not in violation of any provision of
ANILCA.
Comment 53: One commenter noted that portions of the terrestrial
denning areas are designated as wilderness under Federal jurisdiction
and as such do not need additional protection.
Our response: Although areas with wilderness status may afford some
protection to endangered and threatened species, the purpose of
designating these areas as ``wilderness'' is ``to secure for the
American people of present and future generations the benefits of an
enduring resource of wilderness.'' The purpose of designating critical
habitat for a particular species is to identify and provide Federal
protection for features and areas essential to the conservation of that
species, in order to facilitate its conservation. Designation of
critical habitat would ensure any Federal actions not restricted in
wilderness areas are evaluated under section 7 of the Act, so that if
approved, they would not appreciably diminish the functionality of the
habitat's essential features.
Comment 54: We received several comments that the Service should
consult directly with all Native communities potentially affected by
the critical habitat designation.
Our response: The Service has a history of coordinating with Native
communities regarding polar bear management issues, and has conducted
extensive outreach relative to this critical habitat designation with
Alaska Native organizations and communities within the range of the
polar bear in Alaska. Although the court-ordered deadline precluded
extensive coordination with the Alaska Native community prior to
proposing to designate critical habitat, we presented general
information regarding the designation of polar bear critical habitat at
the Inuvialuit Game Council and North Slope Borough meeting on April
29, 2009, in Barrow, Alaska, and at the Alaska Nanuuq Commission
Meeting on August 25-26, 2009, in Nome, Alaska. Following the release
of the proposed critical habitat designation on October 29, 2009 (74 FR
56058), we attempted to notify all potentially affected Native
communities and local and regional governments, and we requested
comments on the proposed rule. In response to a specific request by the
North Slope Borough, we presented information on the polar bear
critical habitat on March 1, 2010, in Barrow, Alaska. At that meeting,
attendees were given the opportunity to comment on the proposal. As
noted earlier, we published a document in the Federal Register on May
5, 2010 (75 FR 24545), announcing the proposed designation of critical
habitat, the availability of the draft economic analysis, and another
60-day comment period. We also notified the primary communities located
within the range of polar bear in Alaska by mail of the opportunity to
provide oral or written comments prior to the public hearings in
Anchorage on June 15, 2010, and Barrow on June 17, 2010. In addition,
the Alaska Nanuuq Commission, which represents Alaska Native interests
concerning the conservation and subsistence use of polar bears,
assisted in notifying the villages about the proposed critical habitat
designation through their village representatives. We responded to all
requests for additional information from various organizations and
communities before and after submitting the proposed rule to designate
critical habitat to the Federal Register. The Service remains committed
to working with Alaska Natives on this and other issues regarding
conservation and subsistence use of polar bears in Alaska.
Comment 55: The Service received comments that we should hold
public hearings in more than one community in northern and western
Alaska.
Our response: Section 4(b)(5)(E) of the Act states that the
Secretary shall ``promptly hold one public hearing on the proposed
regulation if any person files a request for such a hearing within 45
days after the date of publication of general notice.'' The Service
offered multiple opportunities for people to participate in public
hearings and meetings. We held two public hearings: one in Anchorage,
Alaska, on June 15, 2010, and one in Barrow, Alaska, on June 17, 2010.
These public hearings were announced in the Federal Register on May 5,
2010 (75 FR 24545) and in the Legal Section of the Anchorage Daily News
(June 1, 2010). In addition, three display advertisements announcing
the hearing on critical habitat were published on June 10, 2010, in the
Arctic Sounder (Barrow, AK) and Nome Nugget (Nome, AK), and on June 10
and 14, 2010, in the Anchorage Daily News (Anchorage, AK). We
established teleconferencing capabilities for the Barrow, Alaska,
public hearing to provide an opportunity to receive oral testimony from
outlying communities. The communities of Kotzebue and Little Diomede
participated in this public hearing via teleconference. The public
hearings were attended by approximately 73 people.
In addition, general information on critical habitat was presented
at the Inuvialuit Game Council and North Slope Borough meeting on April
29, 2009, in Barrow, Alaska; the Alaska Nanuuq Commission Meeting in
Nome, Alaska, in August 2009; and the North Slope Borough on March 1,
2010, in Barrow, Alaska. We believe these accommodations provided
sufficient time and means for the public to comment on the proposed
rule.
Comment 56: One commenter suggested the Service prepare an
environmental impact statement (EIS) as part of National Environment
Policy Act (NEPA) (42 U.S.C. 4321 et seq.) compliance.
Our response: It is our position that, outside the jurisdiction of
the Circuit Court of the United States for the Tenth Circuit, we do not
need to prepare environmental analyses as defined by NEPA (42 U.S.C.
4321 et seq.) in connection with designating critical habitat under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244). This
assertion was upheld by the Circuit Court of the United States for the
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)). The opportunity
[[Page 76103]]
for public comments, one of the goals of NEPA, is provided for through
section 4 rulemaking procedures.
Comment 57: A comment provided by the North Slope Borough states
that critical habitat designation is subject to consistency
determinations under the Coastal Zone Management Act.
Our response: Under the regulations implementing the Coastal Zone
Management Act, agencies are to examine ``reasonably foreseeable direct
and indirect effects on any coastal use or resource'' when determining
whether or not a consistency determination is necessary (15 CFR
930.33(a)(1)). Because the designation of an area as critical habitat
does not itself negatively impact the way in which the land is being
utilized, nor does such a designation directly affect the coastal zone
of Alaska, we conclude that a consistency determination is not
required. Consistency determinations will continue to be required for
specific Federal activities that use or impact the coastal zone in a
reasonably foreseeable manner, such as construction projects,
permitting, and other development.
Comments on the Economic Analysis
General Comments on Methodology and Results
Comment 58: Several commenters, including the State of Alaska,
asserted that the Service did not adequately document or explain the
basis for its assumption in the draft economic analysis (DEA) that the
polar bear critical habitat designation is ``not expected to result in
additional significant conservation measures.'' The comment further
states that the Service did not adequately consider the economic
impacts of consultations, project requirements, and modifications that
the adverse modification standard imposes.
Our response: Section 2.3 of the DEA describes the reasons the
Service does not anticipate this critical habitat designation to result
in significant additional polar bear conservation requirements above
and beyond those currently in place under MMPA and through the species
being listed under the Act. Additionally, Appendix C of the DEA
includes a memorandum developed by the Service, titled, ``Incremental
Effects of Critical Habitat Designation for the Polar Bear,''
describing the Service's reasoning on this issue. In general,
conservation measures being implemented for the polar bear and its
habitat under the MMPA, along with the conservation resulting from the
species' listing status under the Act, are expected to sufficiently
avoid potential destruction or adverse modification of critical
habitat.
Comment 59: One comment contends that the Service-provided
assumptions that critical habitat will not change conservation
requirements for the polar bear led to the finding in the DEA that
there will be no incremental effects of the designation. The comment
states that a lack of change in conservation requirements does not mean
that the only added costs are administrative costs of consultations. In
particular, litigation over critical habitat could lead to added costs.
Our response: Changes in conservation requirements following
critical habitat designation for the polar bear represent only one of
the categories of potential incremental effects considered in the DEA.
The DEA recognizes the potential for other types of incremental
impacts, such as project delay associated with litigation.
Specifically, section 3.2.2 of the DEA focuses on potential
``indirect'' impacts of the designation, which are defined as the
unintended consequences of the regulation. Forecasting specific
variables needed to quantify indirect impacts, for example, the outcome
of potential litigation and the frequency and timing of any project
delays, is considered too speculative for the analysis. Information is
therefore provided in the DEA regarding precedence for, and the
potential magnitude of, such impacts using hypothetical examples. The
potential for the designation to result in additional, indirect costs
is highlighted throughout the DEA as the chief source of uncertainty in
the analysis.
Comment 60: One comment states that the DEA incorrectly concludes
that critical habitat designation will require no more mitigation than
that required by the listing alone. The comment notes, for example,
that additional measures to protect the cactus ferruginous pygmy-owl
were required following critical habitat designation. The comment
further provides examples of expenses being incurred for conservation
of threatened species in the North Slope, including fencing to protect
eiders, and utilization of polar bear-resistant dumpsters.
Our response: Conservation measures for species and habitats are
determined by the Service on a case-by-case basis as different species
and geographic regions are subject to different baseline regulations
and conservation requirements. The question of whether the baseline
regulatory environment sufficiently avoids destruction or adverse
modification of critical habitat for the polar bear is independent of
the same question for another species, such as the cactus ferruginous
pygmy owl. Ongoing polar bear conservation measures, such as the
utilization of polar bear-resistant dumpsters, are discussed in the DEA
as baseline conservation measures, and are accordingly expected to
continue regardless of critical habitat designation.
Comment 61: One commenter questioned why costs of compliance with
baseline regulations are provided when the DEA acknowledges that they
are not relevant to the evaluation of critical habitat.
Our response: The DEA does not explicitly quantify total costs of
compliance with baseline regulations. The DEA does, however, include a
discussion of the regulatory baseline in order to provide context for
the incremental analysis. For example, the Service's determination that
the regulatory baseline precludes the need for additional polar bear
conservation measures following critical habitat designation is a major
factor in the economic analysis.
Comments on Section 7 Consultation Costs
Comment 62: Multiple comments were received that assert that the
DEA underestimates the administrative costs of consultation. In
particular, these comments suggest that the estimated section 7
administrative costs to third parties are unreasonably low. These
comments focus specifically on oil and gas-related consultations and
provide a range of incremental costs that oil and gas companies are
expected to bear for participating in consultation regarding polar bear
critical habitat. One comment states that the Act requires
demonstration that adverse modification or destruction of critical
habitat would not occur, and that developing a factual record to
demonstrate this could be costly. Multiple comments suggest that
incremental administrative costs of consultation should include staff
time, consultant fees, legal advice, and development of habitat-related
studies for large-scale oil and gas projects. One commenter estimated
third-party, incremental administrative costs of $10,000 per
consultation where another commenter suggested it could be ``millions
of dollars'' per consultation. Multiple comments provided on the DEA
agree on an estimated $18,750 to $37,500 per consultation, and two
other comments provide estimates within that range.
Our response: In response to these comments, third-party,
incremental administrative costs of consultation are
[[Page 76104]]
revised in the final economic analysis (FEA). Specifically, section
1.3.2 of the FEA revises the estimates of administrative consultation
costs for oil and gas projects and plans as follows: (1) To assume
third parties do bear some administrative costs during programmatic
consultation at the low end (the DEA originally assumed only the
Service and Federal agencies participate in programmatic consultation);
and (2) to incorporate a high-end estimate of $37,500 for costs to
third parties for participation in formal and programmatic
consultations. These changes result in the estimate of total
incremental administrative costs of consultation being revised from
$669,000 in the DEA to a range of $677,000 to $1.21 million in the FEA
(present values assuming a 7 percent discount rate).
Comment 63: Two comments state that costs to oil and gas companies
for biological assessments would be increased following critical
habitat designation. One comment suggests this would result in
incremental costs of $10,000 to $50,000 per biological assessment or,
for large-scale projects, up to $1.5 million. This comment also
suggests that, in addition to the increased biological assessment
costs, each consultation effort would require a $300,000 study to
determine that the primary constituent elements (PCEs) for polar bear
critical habitat exist in the project area. Another commenter suggests
that critical habitat designation will result in reinitiation of two
past biological opinions related to oil and gas operations in order to
consider impacts to critical habitat, and that the administrative costs
of these reinitiations would result in an additional $156,000 for one
biological opinion and $137,500 for another to determine and map the
presence of PCEs. The commenter also asserts that oil and gas companies
will bear incremental costs when developing biological assessments as
designated non-Federal representatives in section 7 consultation. The
commenter estimates these efforts will result in an additional $115,600
per biological assessment, and an additional $10,000 to $650,000
(depending on the project area) to document whether the PCEs are
present and whether the project will destroy or adversely modify those
PCEs.
Our response: Exhibit 1-2 of the FEA describes estimated
incremental costs for biological assessments of $1,400 per
consultation, or $2,800 for a consultation reinitiated to consider
critical habitat. The expected level of effort for these studies in the
DEA is based on a historical review of past consultations around the
country, and is significantly less than the level of effort that these
comments anticipate will be required. The Service does not ask that
third parties identify or map the distribution of PCEs as part of
section 7 consultations. The Service identifies as part of critical
habitat designation where the PCEs for polar bear critical habitat
exist. It is, therefore, unlikely that there would be a need for third
parties to undertake duplicative efforts to map PCEs. The Service has
in the past requested polar bear-related studies such as denning
surveys; however, these studies are required under the MMPA and would
be requested regardless of the designation of critical habitat. Costs
of these polar bear studies are considered baseline impacts of polar
bear conservation and are not included within the forecast of
incremental impacts of critical habitat designation.
Comment 64: Two comments note that the estimated administrative
consultation costs in the DEA rely on data from Service field offices
around the country, and assert that the only consultations appropriate
as indicators of future administrative costs are those which involve
Alaska and the polar bear.
Our response: Exhibit 1-2 of the FEA summarizes the estimated
administrative costs of consultation regarding polar bear critical
habitat. The analysis does not rely on past consultations on polar bear
in Alaska as indicators of future administrative costs because
consultations that have occurred considered only the listing of the
species (i.e., the jeopardy standard). As critical habitat has not yet
been designated for the polar bear in Alaska, historical data does not
exist regarding administrative costs to specifically consider critical
habitat for the species (i.e., the adverse modification standard). The
administrative cost estimates in the DEA therefore rely on the best
available information. As described in the notes to Exhibit 1-2, the
estimates of costs to the Service were provided by the Fairbanks Fish
and Wildlife Field Office and are therefore specific to the polar bear
in Alaska. The costs to Federal agencies are average estimates based on
review of section 7 consultations around the country. The costs to
third parties in the FEA are revised from the DEA estimates to
incorporate information provided during public comment on expected
administrative costs of consultations specifically regarding polar bear
critical habitat.
Comment 65: One comment notes that, under the Cooperative Agreement
Between United States Department of Interior and Alaska Department of
Fish and Game for Conservation of Endangered and Threatened Animals
(February 1979), the State of Alaska will participate at some level in
all section 7 consultations concerning critical habitat. These costs
should also be considered administrative impacts of the designation.
Our response: The Service has a record of working collaboratively
with the State of Alaska on species and habitat conservation issues.
The 1979 Cooperative Agreement with the State provides for the State
and the Service to ``[hellip]exchange biological and other data as
necessary to facilitate such determination [of critical habitat] by the
Director.'' As part of the process to designate critical habitat for
the polar bear, the Service coordinated with the State to exchange
information relevant to our decision-making process. The 1979
Cooperative Agreement does not state or imply that the State of Alaska
will participate in all section 7 consultations concerning critical
habitat and as such, it would not be appropriate to include
administrative costs for these consultations as part of the potential
incremental effects of critical habitat designation.
Comment 66: One comment states that the DEA underestimates the
number of forecast consultations. Specifically, the DEA describes that,
for large-scale projects and plans subject to programmatic biological
opinions, there would be one large-scale consultation, as opposed to
more frequent project-specific consultations. The comment suggests that
individual applicants for projects under these plans will still have to
undertake individual consultations, albeit on a smaller scale. The
comment estimates that such consultations could number in the hundreds
over the next 30 years. Another comment suggested that the assumption
that not all individual projects covered by a programmatic consultation
would require individual consultation could result in the Service not
obtaining adequate funding to implement critical habitat.
Our response: Section 3.2 of the DEA estimates the number of future
consultations on oil and gas activities. Approximately 39 formal and
programmatic consultations are forecast over the 30-year timeframe of
the analysis. This estimate captures both the programmatic
consultations on large-scale plans and regulations, such as regular
review of the incidental take regulations under the MMPA (50 CFR part
18), and formal consultations on individual projects that fall under
these plans, such as specific pipeline and oil and gas field
developments. This
[[Page 76105]]
estimate is based on the best available information from existing plans
and programs regarding the number of potential future individual
projects that will require consultation, and accounts for the major
consultation efforts that the Service expects to undertake. While the
Service also may consult on some smaller scale projects that fall under
these plans, these efforts are anticipated to be relatively minor due
to the existence of the programmatic consultations and biological
opinions addressing the conservation needs for the species. The
analysis does note, however, in section 3.2 that the scope and scale of
oil and gas activities in the future is highly uncertain, regardless of
the critical habitat designation; thus, estimates of the frequency of
future consultation is likewise uncertain. In the case that the number
of consultations for future oil and gas activities is greater than that
estimated in the DEA, the analysis underestimates total administrative
costs associated with the designation. The Service's funding is
independent of the estimated frequency of future consultations provided
in the DEA.
Comment 67: A separate economic analysis on the proposed
designation submitted by commenters during the public comment period
(see comment 70) asserts that the DEA inappropriately forecasts
consultations based on the number of consultations occurring in the
previous 2 years. The report states that the assumption that the post-
designation consultation rate will be similar to the pre-designation
consultation rate is doubtful based on past examples of critical
habitat consultation rates.
Our response: As discussed in section 3.2 of the DEA, the number of
future consultations on oil and gas activities is not based on a
historical average rate of consultation on the polar bear, but instead
on plans for specific, future developments and regular review of
existing conservation programs. Future consultations for construction
and development activities reference the consultation history for the
polar bear, but also consider specific, planned projects based on
communication with stakeholders and comments provided during the public
comment periods on the proposed rule to designate critical habitat for
the polar bear.
Comments on Indirect Costs of Critical Habitat Designation
Comment 68: Multiple comments state that the DEA marginalizes the
indirect costs of the designation, such as litigation risk,
uncertainty, project slippage, and delay. One comment recognizes these
are difficult to quantify but asserts that they are real and
significant and should be considered quantitatively or, in some cases,
qualitatively, in the DEA. Multiple comments state that it is
inappropriate for the DEA to dismiss these indirect costs as ``too
speculative.'' Many of these comments focus on the potential for
project delays. One comment asserts that a one-year delay in
construction to the natural gas pipeline project could cost over a
billion dollars. Another comment estimates that, given the economic
scale of the oil and gas projects, even minor delays could result in
costs of hundreds of millions of dollars. ConocoPhillips estimates that
a 2-year delay in its western expansion plans at Alpine would result in
erosion of project value of between 9 and 23 percent. The comment
further states that delays would also have ripple effects in the
region, as delays in one project can result in similar delays at other
projects. One comment states that each year of delays for construction
projects on the North Slope would result in an additional 10 percent
increase in construction costs.
In addition to project delay concerns, one comment asserts that the
designation would chill the investment climate for economic activity in
the Arctic. Multiple comments suggest critical habitat designation for
the polar bear will stop new exploration and development and put oil
and gas activities at a standstill. One comment estimates stopping oil
and gas activity would mean an impact of hundreds of billions of
dollars.
On the other hand, one comment questions why indirect costs are
included if the DEA itself states that indirect costs should not be
treated as part of the incremental economic impact of critical habitat
because the estimates are too speculative.
Our response: As noted above, section 3.2.2 of the DEA focuses on
potential indirect impacts of the designation. The DEA describes that
indirect impacts may result from litigation surrounding critical
habitat delaying lease sales or projects, or industry avoiding critical
habitat due to regulatory uncertainty or stigma concerns. The DEA does
not dismiss the potential for such indirect impacts, but recognizes
that significant limitations exist with respect to a reliable
calculation of the indirect impacts of critical habitat designation
over the next 30 years.
As noted throughout the report, while the DEA highlights one
potential scenario of future oil and gas development on the North
Slope, this forecast of the scope and scale of the activity itself is
subject to considerable uncertainty. In order to monetize indirect
impacts, such as project delays, on these activities, additional
assumptions would be required regarding: (1) Which future projects may
experience delays over the next 30 years; (2) the specific length of
delay that is attributable to the critical habitat designation (as
opposed to delay resulting from the listing of the polar bear or other
species, habitat, or broader environmental considerations); and (3) the
potential outcome of any litigation regarding critical habitat.
Absent this information, the DEA provides examples of the potential
magnitude and geographic distribution of indirect impacts using
hypothetical examples of the costs of delay to representative projects
on the North Slope (Exhibit 3-4), as well as information provided by
stakeholders regarding expected costs of delay to their operations.
Section 3.2.2 of the FEA additionally incorporates the examples of
impacts of project delays provided in comments on the DEA. The Service
does not consider only the monetized impacts reported in the DEA, but
is also required to consider this qualitative discussion of potential
impacts, and the accompanying quantitative examples.
Comment 69: Multiple comments state that the Service will most
likely be sued over critical habitat, and that critical habitat will
add an additional argument to existing lawsuits regarding proposed
projects in these areas. For lawsuits in response to the designation,
multiple comments assert that the entire cost of litigation in response
to the critical habitat designation is attributable to the designation.
Two comments state that costs of litigating over critical habitat
designation as a whole can be based on current costs of litigation over
the polar bear listing: $1 million for a single party, and up to $4
million for the entire cost of litigation, including the use of public
resources. These comments additionally estimate that the incremental
cost of responding to critical habitat issues as part of broader
litigation on oil and gas projects would be $50,000 per project.
Another comment estimates that the additional costs of critical habitat
litigation regarding its proposed Alaska natural gas pipeline project
would be at least $50,000, or up to $300,000 including costs to all
parties. A comment from the State estimates that fees for a single
party in particular litigation concerning the Act may be as high as
$310,973 to $1,110,344. The comment further states that total
litigation costs may be 2.5 to
[[Page 76106]]
3.5 times as high as this to include impacts to all parties.
Our response: The Service does not consider the costs of litigation
surrounding the critical habitat rule itself when considering the
economic impacts of the rule. The DEA does, however, discuss the
potential for critical habitat to result in or add to litigation
regarding specific projects. For example, section 3.2.2 of the DEA
acknowledges the potential for critical habitat for the polar bear to
result in litigation. Litigation concerning the listing of the polar
bear, and multiple other environmental and industry-related issues, is
ongoing in the North Slope of Alaska. The extent to which litigation
specifically regarding critical habitat may add to the costs of this
ongoing litigation is uncertain. While critical habitat designation may
stimulate additional legal actions, data do not exist to reliably
estimate impacts. That is, estimating the number, scope, and timing of
potential legal challenges would require significant speculation. The
DEA does describe, however, the potential for litigation surrounding
critical habitat designation to result in delays to oil and gas lease
sales and projects, and identifies potential impacts of such delays.
Comment 70: The State of Alaska and Arctic Slope Regional
Corporation contracted an independent economic analysis of the proposed
critical habitat designation. The analysis asserts that it is possible
to quantify the indirect impacts of the designation, and that the DEA
should incorporate this information. As an example, the analysis
estimates the impacts of a delay in oil and gas development
attributable to critical habitat for a hypothetical oil field. The
analysis estimates that impacts may range from $202.8 million for a 1-
year delay to $2.6 billion for a 5-year delay, depending on field size
and production run of the oil field. These costs stem from additional
resources required to complete the project due to delay, including
litigation and inflation during the delay period, and reduced present
value of the stream of benefits from the project. In addition to delay
costs, the report estimates potential royalty losses associated with
the delay, and regional economic impacts of a 1 percent, 5 percent, and
10 percent reduction in production from a hypothetical oil field. A 1
percent reduction in production, for example, reduces regional (North
Slope Borough) economic output by $75.8 million per year, with 46 jobs
lost. On a State level, the analysis estimates economic output is
reduced by $98.8 million per year, with 214 jobs lost. Regarding delays
to capital development projects, the report estimates regional economic
impacts of $49.3 million in lost output and 199 lost jobs, or Statewide
impacts of $81 million in lost output and 473 lost jobs.
Our response: Information provided in this comment and the
accompanying analysis has been added to section 3.2.2 of the FEA (see
Exhibit 3-5). This comment asserts that indirect impacts of critical
habitat designation can be quantified and that the DEA fails to do
this. To demonstrate this, however, the commenter provides examples of
impacts to hypothetical projects using a series of assumptions
regarding potential lengths of delay, production volumes, and
production timing. In fact, this is the same type of analysis
undertaken in section 3.2.2 of the DEA. The example provided in the
comment estimates impacts of $202.8 million for a 1-year delay to a
hypothetical, representative North Slope oil field development. The DEA
likewise provides the example of a $200 million impact associated with
a legal injunction delaying Shell's drilling program in the Beaufort
Sea. In addition, Exhibit 3-4 of the DEA describes impacts to a
hypothetical, representative oil field development (a smaller field
than that described in the comment) of various impact scenarios (e.g.,
assumed 1 percent or 4.75 percent increases in production costs, and
assumed 1- or 2-year production delays after 4 years of production).
Both the DEA and this comment provide information to the Service
regarding the order of magnitude of potential project delays using
examples that rely on layered assumptions. However, the actual number
of projects that may experience delay due to critical habitat
designation for the polar bear, and the specific length of that delay,
remain uncertain.
The FEA does not include a regional economic impact analysis of
reduced oil and gas activity due to the uncertainty in the project
delay and production impact assumptions. Section 3.4 does, however,
estimate total potential future oil and gas activity across the region.
Specifically, section 3.4.3 describes the gross value of the mean
resource estimates, including information on potential revenue to the
State of Alaska and Federal government for leasing, taxes, and
royalties. Exhibit 3-24 provides information on potential future oil
and gas production and direct employment in the proposed critical
habitat region. This information is included to provide the Service a
sense of the value of the resources at risk.
Comment 71: One comment asserts that there is a real possibility
that a number of oil and gas projects, particularly associated with
leasing in the Chukchi and Beaufort Seas, will be foreclosed due to
critical habitat. One comment states that the commenter is not aware of
oil and gas leases in Alaska, or elsewhere on the Outer Continental
Shelf (OCS), which have been authorized with existing critical
habitats. The comment further states that the Minerals Management
Service (MMS), now Bureau of Ocean Energy Management, Regulation, and
Enforcement (BOEMRE), has twice deleted, or contemplated deletion of,
areas within critical habitat from a proposed lease sale. The comment
therefore argues it is a possibility that authorizing additional leases
in polar bear critical habitat may be politically unpalatable in the
future.
Our response: The BOEMRE has not indicated that it would delete
critical habitat areas from future lease sales. The DEA does note,
however, that regulatory uncertainty or stigma concerns may affect
investment on oil and gas projects in the critical habitat area.
Comment 72: According to multiple comments, the increased cost of
operating in polar bear habitat effectively places a risk premium on
all existing and planned operations in critical habitat, and these
increased risks of procedural or administrative project delay and
litigation impose immediate costs on the leaseholder. The commenters
state that this risk and uncertainty warrants discussion in the DEA.
Our response: Section 3.2.2 of the DEA discusses this issue, noting
that uncertainty regarding the potential effects of critical habitat on
projects may place a risk premium on project costs. The effect of this
risk premium is to reduce the expected profitability of potential
projects. Potential economic impacts of this effect are further
explored in the section of the DEA titled, ``Project Economics under
Risk and Uncertainty.'' The extent to which specific projects across
the critical habitat area may experience this effect, however, is
uncertain.
Comment 73: Two commenters suggested that a project being proposed
in designated critical habitat on existing oil and gas leases will
trigger additional litigation regarding NEPA compliance issues,
potentially requiring a new environmental impact statement (EIS),
instead of an environmental assessment (EA), and causing project
delays. The commenters estimated that the costs of producing an EIS are
$4 million to $12 million greater than the costs of producing an EA.
[[Page 76107]]
Our response: Section 3.2.2 of the DEA focuses on potential
``indirect'' impacts of the designation, which are defined as the
unintended consequences of the regulation. Forecasting specific
variables needed to quantify indirect impacts, for example, the outcome
of potential litigation, is considered too speculative for the
analysis. Information is therefore provided in the DEA regarding
precedence for, and the potential magnitude of, such impacts using
hypothetical examples. The potential for the designation to result in
additional, indirect costs is highlighted throughout the DEA as the
chief source of uncertainty in the analysis. We agree that the
designation may, in some circumstances, trigger re-initiation of
section 7 consultation and review of NEPA compliance documents. Should
this happen, we will work with Federal action agencies through this
process.
Comment 74: One comment on the DEA recognizes the difficulty of
assessing the uncertainty of indirect economic impacts but notes that
it is only the magnitude of these impacts that is uncertain.
Our response: The DEA notes that the potential for indirect
impacts, such as litigation, uncertainty, and project delays, is real.
The magnitude of such indirect impacts, however, depends on a number of
unknown variables, including: (1) The potential outcome of any
litigation; (2) the frequency and timing of any project delays that
result specifically from the designation; and (3) the number of
projects experiencing litigation or delay. The specific extent to which
critical habitat designation for the polar bear may add to litigation
and delays is uncertain.
Comments on the Oil and Gas Analysis
Comment 75: According to one comment, the DEA should attempt to
quantify the revenue lost by the State of Alaska resulting from the
critical habitat designation. Limitations or effects on oil and gas
development will negatively affect the State treasury as the industry
is responsible for 90 percent of Alaska's unrestricted revenue. The
State estimates, assuming taxes stay at current rates, that the State
will lose roughly $14 per barrel of oil left in the ground as a result
of the designation.
Our response: As noted above, section 3.4.3 of the DEA describes
the gross value of estimated oil and gas production in the region,
including information on potential revenue to the State of Alaska and
Federal government for leasing, taxes, and royalties. Information
provided by the State regarding lost revenue per barrel of oil left in
the ground has been added to the FEA. How many, if any, barrels of oil
may remain undeveloped due to critical habitat is, however, uncertain.
Comment 76: One comment corrects the DEA statement that only four
Alaska Native Regional Corporations have the potential for economic
losses, pointing out that all 12 land-owning Alaska Native Regional
Corporations stand to lose revenue as a result of decreased payments to
the 7(i) account, developed under the Alaska Native Claims Settlement
Act (ANCSA) (943 U.S.C. 1601 et seq.). These funds also benefit village
corporations and shareholders; thus, lost revenues to the 7(i) account
affect the State and national economy.
Our response: We agree with this comment and the discussion is
corrected in the FEA.
Comment 77: One comment states that Exhibit 3-3, which provides an
example financial profile of a representative North Slope oil field
with an optimal development scenario, is based on an old example (2000)
and could be verified with more recent information. A comment on
Exhibit 3-4 of the DEA asserts that the analysis contained in the
exhibit is misleading as it is based on hypothetical scenarios.
Our response: Oil and gas interests contacted during the
development of the DEA indicated that these examples were appropriately
representative of potential impacts to their operations. Further, these
examples were subject to technical review by the economist who authored
the original report in which they appeared (Goldsmith 2000). The
technical reviewer agreed that their inclusion as examples of the
potential for project delays and production cost increases to result in
economic impacts is appropriate. The DEA notes, however, that these are
hypothetical examples, provided to give a sense of the potential
magnitude of impacts. We do not have information to assert that the
particular project delay and production cost increase assumptions used
in these examples will result from critical habitat designation for the
polar bear.
Comment 78: One comment suggests that the list of ``technological
advances'' provided in section 3.3.4 of the DEA describing changes in
oil and gas activity over time should be removed as it is irrelevant.
Specifically, the comment states that Alpine does not provide ``a model
for roadless development,'' and there have not yet been any sub-sea
completions for production in the Beaufort and Chukchi Seas.
Our response: The discussion of technological advances in oil and
gas development is relevant to the discussion that oil and gas
activities are increasingly able to minimize surface area disruption,
thereby minimizing potential effects to polar bear critical habitat.
Comment 79: One comment suggests that the Service introduced bias
into the DEA by contracting with Northern Economics, a firm that has
previously produced economic reports for Shell. The comment asserts
that the DEA should not rely on the oil and gas activity forecast
produced by Northern Economics for Shell.
Our response: Northern Economics' experience forecasting oil and
gas activities in the region provides them with expertise regarding
this industry. The standard for the DEA is that it be based on the best
available information. A chief concern of the DEA is to forecast the
potential scope and scale of oil and gas activities in the region. The
entities with the most knowledge on this subject are oil and gas
companies operating in the region, and the regulating entities (e.g.,
BOEMRE and the State of Alaska). Northern Economics thus relied on
information provided by these entities to inform the DEA.
Comment 80: One comment states that the ``volumetric analysis'' of
oil facilities on barrier islands should not be extrapolated across the
entire proposed critical habitat area.
Our response: We agree that oil and gas production is unlikely to
take place across the entirety of proposed critical habitat. It is not
possible, however, to identify where yet-to-be-discovered oil and gas
resources will be found. Thus, to estimate potential oil and gas
production across the North Slope, the DEA relies on the assumption
that the potential resources are equally distributed across the
landscape. In other words, the estimate of future discoveries in the
critical habitat units is a function of the areal extent of the unit.
Comment 81: A comment on Exhibit 3-23, which summarizes oil and gas
production and employment in the North Slope, suggests that the chart
does not add up, does not make sense, and is an inappropriate summary
of the data because oil and gas production would not take place across
the entirety of proposed critical habitat.
Our response: Exhibit 3-23 in the DEA is revised in the FEA (as
Exhibit 3-24) for clarification. The table is provided to illustrate
the relative importance of proposed critical habitat units in terms of
potential production and employment in the oil and gas industry on the
North Slope.
[[Page 76108]]
Comments on Other Activities
Comment 82: One comment asserts that the designation will have an
economic impact on the North Slope by delaying capital improvement
projects, such as sewer upgrades, power plant construction, sea wall
construction, fuel pipeline construction, gas field drilling, and
gravel mining.
Our response: Chapter 4 of the DEA discusses impacts to these
activities. As with oil and gas activities, the analysis recognizes the
potential for the designation to result in project delays but is unable
to monetize specific impacts due to uncertainty regarding the potential
frequency and timing of delays.
Comment 83: One comment states that the DEA should quantify costs
to gravel mining operations, noting that if gravel cannot be secured
from a local source for a project, it will need to be imported,
increasing project costs. The comment states that the DEA should
identify the cost differential between locally sourced materials and
imported materials. Another comment describes that, while no large-
scale coal mining operations other than the Red Dog Mine currently
exist in proposed critical habitat, the potential exists for future
operations. Limitations on potential future coal mining should be
considered in the DEA. An additional comment questioned how the DEA
forecast future mining projects.
Our response: Section 4.1.3 of the DEA discusses gravel and coal
mining activities within the proposed critical habitat area, which does
not include Red Dog Mine as it is located outside the critical habitat
designation for polar bear. Future mining activities are forecast based
on their historical frequency in the region, as well as communication
with stakeholders and public comments provided on the proposed rule. As
discussed in section 4.2 of the DEA, gravel mining, coal mining, and
other construction and development activities with a Federal nexus may
be subject to the following conservation measures for the polar bear
due to the listing of the species: (1) Avoid all activities within 1.6
km (1 mi) of known polar bear dens; (2) develop operating procedures to
avoid polar bears; and (3) ensure that personnel are trained in bear
management activities. These conservation measures would be requested
via the MMPA regardless of critical habitat designation and are
therefore considered baseline impacts. Critical habitat designation is
not expected to result in additional conservation measures for the
polar bear with respect to mining activities. In the case that the
number of future mines developed in the critical habitat area is
greater than that estimated in the DEA, the analysis underestimates the
administrative costs of consultation on these projects.
Comment 84: According to one comment, the DEA should address
potential impacts on the future commercial harvest of seafood in the
Arctic. Currently, salmon, crab, halibut, and other species are
harvested in State waters. While the current Fisheries Management Plan
in the Arctic prohibits commercial harvest of fish resources in the
Arctic Management Area, the North Pacific Fisheries Management Council
(NPFMC) will reconsider authorizing commercial fishing upon receiving a
petition from the public, or a recommendation from National Marine
Fisheries Service (NMFS) or the State of Alaska. Thus, potential for
some commercial fisheries exists, although for what species is unknown.
Our response: In 2009, the NPFMC released its Fishery Management
Plan for Fish Resources of the Arctic Management Area, covering all
U.S. waters north of the Bering Strait. Management policy for this
region is to prohibit all commercial harvest of fish until sufficient
information is available to support the sustainable management of a
commercial fishery. The future potential for commercial fishing in the
Federal waters of the region is therefore highly uncertain. Ongoing
harvest of fish and shellfish in State waters has continued following
the listing of the polar bear under the Act, and is not expected to
change following designation of critical habitat.
Comments on Benefits
Comment 85: Two comments suggest that the DEA does not sufficiently
evaluate or quantify benefits, leading to an imbalance in the analysis.
One comment questions the language on page 1-1 of the DEA, ``[t]he U.S.
Office of Management and Budget's (OMB) guidelines for conducting
economic analysis of regulations direct Federal agencies to measure the
costs of a regulatory action against a baseline * * *'' The comment
suggests that the statement should be inclusive of costs and benefits,
rather than costs alone. Other comments assert that the only baseline
benefits considered are use values (avoided attacks on humans, hunting,
polar bear viewing, and improved water quality). The DEA does not
discuss use of meta-analysis to quantify existence values of polar
bears. The comments additionally state that the DEA includes estimates
for speculative indirect costs, such as limits on oil and gas
exploration, litigation costs, and reductions in regional economic
activity, but does not acknowledge indirect ecosystem service benefits,
such as water quality and carbon sequestration. One comment further
states that the benefits estimates are not scaled up across the entire
critical habitat area as are the costs in the DEA.
Our response: We agree with the comment that OMB's guidance to
Federal agencies on the development of regulatory analysis (contained
in Circular A-4, September 17, 2003) directs agencies to measure the
costs and benefits of regulations against a baseline. Chapter 7 of the
DEA discusses economic benefits of the critical habitat designation. As
described on page 7-1, the Service ``* * * does not anticipate that the
designation of critical habitat will result in additional conservation
requirements for the polar bear. As a result, no incremental
conservation measures are anticipated in this analysis and, as such, no
incremental economic benefits were forecast from a designation of
critical habitat.'' Chapter 7 does include discussion of baseline
benefits of polar bear conservation, however, and includes a specific
section on non-use values. This section describes that no studies exist
that attempt to estimate existence values for polar bear, but provides
information from other potentially relevant studies, such as those
regarding existences values for grizzly bears. All categories of
benefits discussed in Chapter 7--use values, non-use values, and
ecosystem service benefits--are relevant to the baseline and are not
expected to be affected by critical habitat designation.
Comment 86: One comment states that the DEA downplays the
importance of the Arctic National Wildlife Refuge (ANWR) and fails to
acknowledge its economic benefits, as well as existing values to polar
bear conservation. The comment states that the DEA fails to consider
economic losses to tourism that could be avoided, and passive use
values, such as were assessed after the Exxon Valdez oil spill.
Our response: The purpose of the DEA is to provide the best
available information regarding where the benefits of excluding areas
from critical habitat may outweigh the benefits of including those
areas in critical habitat. Thus, evaluating the benefits of the
existence of ANWR is not within the scope of this analysis.
Comment 87: One comment asserts that the key issues and conclusions
of the report should provide the economic
[[Page 76109]]
benefits of subsistence to Alaska Native residents.
Our response: As described in section 2.2 of the DEA, subsistence
activities are exempt from regulation under the Act and MMPA, unless
the activities ``materially and negatively'' affect the species. In
addition, critical habitat designation is not expected to result in
additional conservation measures for the polar bear. Subsistence
activities are therefore not expected to be affected positively or
negatively by the designation of critical habitat for the polar bears.
Comments on Distributional Analysis
Comment 88: One comment asserts that the DEA does not include
distributional effects of the designation on Inupiat Eskimos in the
North Slope Borough. Another comment states that the DEA does not take
into account the distributional and indirect impact on the Native
people of Nuiqsut and the North Slope. An additional comment from the
NANA Corporation suggests the DEA does not capture impacts to its
economic and development projects. Another comment offers that the
effects of the designation on the lifestyle, cultures, and economic
activities of the villages within the proposed critical habitat area
are not separable from subsistence activities.
Our response: Section 2.1 of the DEA provides a socioeconomic
profile of the ANCSA Regional Corporation's location within the
critical habitat region. As described above, critical habitat
designation is not expected to result in additional conservation
requirements for the polar bear. Thus, economic and development
projects of Native Alaskan communities are not expected to experience
further regulation with respect to polar bear conservation following
the designation. Further, the DEA describes potential indirect impacts
of the designation but does not explicitly quantify such impacts for
the reasons described above.
Other Comments on the DEA
Comment 89: A comment on the DEA questions language on page 1-4,
paragraph 9, that describes an example of how a regulation may result
in economic efficiency impacts. The example provided notes, ``if the
set of activities that may take place on a parcel of land are limited
as a result of the designation or presence of the species, and thus the
market value of the land is reduced, this reduction in value represents
one measure of opportunity cost or change in economic efficiency.''
Specifically, the comment states that, in many cases, the value of land
increases if buyers are assured that they will continue to enjoy a
scenic view or retain ecosystem services as a result of habitat
conservation.
Our response: The language from the DEA that is cited in this
comment provides one example of how critical habitat designation may
result in economic impacts outside of section 7 of the Act. Based on
our evaluation in the DEA, we do not expect land value impacts,
positive or negative, associated specifically with the designation of
critical habitat for polar bears.
Comment 90: One comment questions the language describing the
treatment of benefits on page 1-15 of the DEA that states it will
address benefits qualitatively because of the ``lack of resources on
the implementing agency's part to conduct new research.'' The comment
asserts that the primary and secondary research should be done as part
of the economic analysis.
Our response: The DEA is required to be based on the best available
information. Primary research, such as design and implementation of
original surveys, is outside of the scope of the analysis and this rule
making.
Comment 91: Two comments state that the DEA should recognize Alaska
Native-owned lands as private lands.
Our response: The FEA is revised to note that Alaska Native-owned
lands should be considered private.
Comment 92: One comment states that the section of the DEA
describing industry concern should not include opinions from oil
companies that did not wish to be cited in the DEA. Similarly, the
comment states that the economic analysis should not cite information
obtained through interviews with stakeholders, such as the ASRC or
BOEMRE, that cannot be verified or for which no factual economic
evidence is provided.
Our response: The DEA relies on the best available information to
quantify impacts of critical habitat designation. Permitting agencies
and landowners and land managers frequently possess the most knowledge
regarding future projects or plans within the proposed critical habitat
area. It would therefore be inappropriate to exclude their input from
consideration in the analysis. The DEA was subject to technical review
by an economist from the University of Alaska with regional and
industry expertise. In addition, a purpose of the public comment period
is to solicit feedback regarding the facts and figures presented in the
report.
Summary of the Changes From the 2009 Proposed Rule
After thorough evaluation of all the comments received on the
proposed critical habitat designation and the DEA, we have made the
following changes to our proposed designation.
(1) Based on the benefits of maintaining and sustaining
conservation partnerships with Native communities, the Secretary has
exercised his discretion, as authorized under section 4(b)(2) of the
Act, to exclude the town sites for Barrow and Kaktovik, the only
formally defined and recognized communities that overlap with the
proposed critical habitat. The maps remain essentially unchanged with
the exception of the addition of the boundaries for the exclusion of
Barrow and Kaktovik. Detailed maps of areas excluded from the critical
habitat designation can be found at http://alaska.fws.gov/fisheries/
mmm/polarbear/criticalhabitat.htm.
(2) All existing manmade structures (on any land ownership) are not
included in final critical habitat designation because these areas are
not, nor do they contain, the features essential to the conservation of
the polar bear.
(3) Radar Sites within the proposed polar bear critical habitat
designation, which include one Inactive Radar Site (Point Lonely
(former SRRS)) and four Active Radar Sites (Point Barrow LRRS, Oliktok
LRRS, Bullen Point LRRS, and Barter Island LRRS), are exempted from
this polar bear critical habitat designation under section 4(a)(3) of
the Act because they are covered by an INRMP that provides a benefit to
the species.
(4) The October 29, 2009, proposed rule (74 FR 56058) indicated a
total proposed designation of approximately 519,403 square kilometers
(km\2\) (200,541 square miles (mi\2\)). However, we incorrectly
identified the extent of U.S. territorial waters in that proposal;
thus, we reduced the critical habitat area in the final rule to
accurately reflect the U.S. boundary for sea-ice critical habitat. With
this change and the removal of the USAF Radar Sites and the communities
of Barrow and Kaktovik, we are designating a total of approximately
484,734 km\2\ (187,157 mi\2\) of critical habitat for the polar bear.
We updated the information on the maps and text in this rule to reflect
these changes.
(5) We revised the preamble, including two PCEs (sea-ice habitat
and denning habitat), to respond to peer review comments and to clarify
our intent. We also made corrections to
[[Page 76110]]
ensure the consistent use of terms, citations, and grammar.
(6) We updated the references cited in light of new information
received in response to the proposed rule.
(7) We finalized our economic analysis based on comments received
in response to the proposed rule. The Secretary did not exercise his
discretion under section 4(b)(2) of the Act to exclude any areas from
the designation on the basis of potential economic impacts.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) essential to the conservation of the species and
(b) which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary. Such methods
and procedures include, but are not limited to, all activities
associated with scientific resources management, such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, transplantation, and, in the extraordinary
case where population pressures within a given ecosystem cannot
otherwise be relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7 of the Act requires consultation on Federal actions
that may affect critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area, nor does it allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by the landowner. Where the landowner seeks or requests
Federal agency funding or authorization that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) of the Act would apply. However, even in the event of
destruction or an adverse modification finding, the landowner's
obligation is not to restore or recover the species, but to implement
reasonable and prudent alternatives to avoid destruction or adverse
modification of critical habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain the physical and biological features essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas supporting the essential
physical or biological features that provide essential life cycle needs
of the species; that is, areas on which are found the primary
constituent elements (PCEs) laid out in the appropriate quantity and
spatial arrangement essential to the conservation of the species. Under
the Act and regulations at 50 CFR 424.12, we can designate critical
habitat in areas outside the geographical area occupied by the species
at the time it is listed only when we determine that those areas are
essential for the conservation of the species and that designation
limited to the species' present range would be inadequate to ensure the
conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include articles in peer-reviewed
journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that this critical habitat
determination may not include all of the habitat areas that we may
later determine, based on scientific data not now available to the
Service, are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be required for
the conservation or survival of the species.
Areas that support polar bear populations in the United States, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act and our other wildlife authorities. They are also subject to
the regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency action. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may result in jeopardy findings in some cases.
Similarly, critical habitat designations made on the basis of the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans (HCPs), or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Physical and Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
the regulations at 50 CFR 424.12, in determining which specific
geographical areas occupied at the time of listing to designate as
critical habitat, we considered areas containing the physical and
biological features essential to the conservation of the species which
may require special management considerations or protection. We
consider the essential physical and biological features to be the PCEs
laid out in the appropriate quantity and spatial arrangement essential
to the conservation of the species. These include, but are not limited
to:
[[Page 76111]]
(1) Space 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 breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific PCEs for the polar bear in the United States
based on its physical and biological needs, as described in the General
Overview and Distribution and Habitat sections of the proposed rule to
designate critical habitat for the polar bear published in the Federal
Register on October 29, 2009 (74 FR 56058), and the following
information.
Space for Individual and Population Growth and for Normal Behavior
Although home ranges can vary greatly among individuals (Garner et
al. 1990, p. 224; Amstrup et al. 2000b, p. 956), the overall home range
size for polar bears from the two U.S. populations is relatively large.
The movement patterns and home ranges of polar bears are directly
related to the seasonal and highly dynamic redistributions of sea ice
(Garner et al. 1990, p. 224; Garner et al. 1994, pp. 112-113; Ferguson
et al. 2001, pp. 51-52; Mauritzen et al. 2001, p. 1,709; Durner et al.
2004, pp. 16-20; Durner et al. 2006a, pp. 27-30). The movement patterns
of the sea ice strongly influence the availability and accessibility of
the preferred prey for polar bears, ringed (Pusa hispida) and bearded
(Erignathus barbatus) seals (Stirling et al. 1993, p. 21).
Polar bears require sea ice as a platform for hunting and feeding
on seals, seasonal and long-distance movements, travel to terrestrial
maternal denning areas, resting, and mating (Stirling and Derocher
1993, p. 241). Moore and Huntington (2009, p. S159) classified polar
bears as an ice-obligate (ice-restricted) species due to this
dependence on sea ice as a platform for resting, breeding, and
foraging. A majority of the polar bears in the U.S. populations remain
with the sea ice year-round and prefer the annual sea ice located over
the continental shelf, and areas near the southern ice edge, for
foraging (Laidre et al. 2008, p. S105; Durner et al. 2009a, p. 39).
Open water is not considered an essential feature for polar bears,
because life functions such as feeding, reproduction, or resting do not
occur in open water. However, open water is a fundamental part of the
marine system that supports seal species, the principal prey of polar
bears, and seasonally refreezes to form the ice needed by the bears.
The interface of open water and sea ice is an important habitat used by
polar bears (Stirling et al. 1993, pp. 18, 20-22; Stirling 1997, pp.
11, 15, 16; Durner et al. 2009a, p. 52). In addition, the extent of
open water may play an integral role in the behavior patterns of polar
bears because vast areas of open water may limit a bear's ability to
access sea ice or land (Monnett and Gleason 2006, p. 5).
The optimal sea-ice habitat for polar bears varies both
geographically and temporally, and the use of this area varies
seasonally, with the greatest movements occurring during the advance of
the sea ice in fall and early winter and retreat of the sea ice during
spring and early summer. In winter, polar bears select areas of high
sea-ice concentrations along the Alaska coast (Durner et al. 2009a, p.
52), with their preferred habitat being sea-ice habitat near the leads
(linear openings or cracks in sea ice), polynyas (areas of open sea
surrounded by sea ice), flaw zones (larger, semi-permanent polynyas),
and shore leads that run parallel to the mainland coast of Alaska.
During other times of the year, the marginal sea-ice zone near the sea-
ice edge over the continental shelf is the optimal feeding habitat for
polar bears because access and availability of ringed seals is greatest
in this zone (Durner et al. 2004, pp. 18-19).
The dynamic nature of the sea ice in the Beaufort and Chukchi Seas,
which changes continually within and among years, makes it difficult to
predict the specific time or area where the optimal habitat occurs.
However, the Resource Selection Function (RSF) models (Durner et al.
2004, pp. 16-19; Durner et al. 2006a, pp. 26-29; Durner et al. 2009a,
p. 39) show that polar bears will select areas of sea-ice habitat with
the following characteristics: (1) Sea-ice concentrations approximately
50 percent or greater that are adjacent to open water areas, leads,
polynyas, and that are over the shallower, more productive waters over
the continental shelf (waters 300 m (984.2 ft) or less in depth); and
(2) flaw zones that are over the shallower, more productive waters over
the continental shelf (waters 300 m (984.2 ft) or less in depth). In
addition, there is evidence of spatial segregation and habitat
preferences for different age/sex cohorts and reproductive status of
the population, although this is not well studied. For example, in the
southern Beaufort Sea, Stirling et al. (1993, pp. 20-21) found that
following den emergence, females with cubs-of-the-year show a strong
preference for stable, shore-fast ice.
Mauritzen et al. (2003b, p. 123) suggested that polar bears select
habitat with sea-ice concentrations that are optimal for hunting seals,
provide safety from ocean storms, and prevent them from becoming
separated from the main pack ice. Although polar bears are most often
found where sea-ice concentrations exceed 50 percent (Stirling et al.
1999, p. 295; Durner et al. 2004, pp. 18-19; Durner et al. 2006a, p.
24; Durner et al. 2009a, p. 51), they will use lower sea-ice
concentrations if this is the only ice that is available over the
shallower, more productive waters of the continental shelf. This was
evident during the late-summer to early-fall open water period in
August and September of 2008. During this time, most of the sea ice in
the Beaufort Sea had receded beyond the edge of the continental shelf,
except for a narrow tongue of sparse ice that extended over shelf
waters in the eastern Beaufort Sea. Polar bears were documented using
this marginal sea-ice habitat with sea-ice concentrations between 15
percent and 30 percent, presumably in an attempt to remain in the more
productive feeding areas over the continental shelf (Steve Amstrup,
U.S. Geological Survey, pers. comm.; USFWS, unpublished data).
Reductions in sea ice negatively impact polar bears by increasing
the energetic demands of movement in seeking prey, causing seasonal
redistribution of substantial portions of polar bear populations into
marginal ice or terrestrial habitats with fewer opportunities for
feeding, and increasing the susceptibility of bears to other stressors.
As the summer sea ice edge retracts to deeper, less productive Polar
Basin waters, polar bears will face increasing intraspecific
competition for limited food resources, increasing distances to swim
from the pack ice to the coast with increased risk of drowning,
increasing interaction with humans in terrestrial or nearshore areas
with negative consequences, and declining population (Amstrup et al.
2008, p. 236).
One of the expected outcomes from climate change in the Arctic is
that the distance between the southern edge of the pack ice and coastal
denning areas will increase during the summer. This is likely to result
in an increase in use of terrestrial areas during the summer and early
fall (Schliebe et al. 2008, p. 2). Should the distance become too
great, it could reduce polar bears' access to, and hence the
availability of, optimal feeding habitat and preferred terrestrial
[[Page 76112]]
denning locations during critical times of the year (Bergen et al.
2007, p. 6).
Based on the best information available and the dependence of polar
bears on sea-ice habitat located over the continental shelf, we have
determined that sea ice over the shallower waters of the continental
shelf (waters of 300 m or less (984.2 ft or less)) is an essential
physical feature for polar bears in the southern Beaufort, Chukchi, and
Bering Seas for space for individual and population growth, and for
normal behavior.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Polar bears are carnivores that feed primarily on ice-dependent
seals (frequently referred to as ``ice seals'') throughout their range.
Although their primary prey is the ringed seal, polar bears also hunt,
to a lesser extent, bearded seals (Stirling and Archibald 1977, p.
1,127; Smith 1980, p. 2,201). In some locales, other seal species are
taken. On average, an adult polar bear needs approximately 2 kg (4.4
lbs) of seal fat per day to survive (Best 1985, p. 1,035). Sufficient
nutrition is critical for survival in the arctic environment and may be
obtained and stored as fat when prey is abundant.
Polar bear movements and distribution are strongly influenced by
two factors: (1) The seasonal variations in the presence of the sea
ice, and (2) the distribution, abundance, and accessibility of ringed
and, to a lesser extent, bearded seals (Stirling et al. 1993, p. 18).
For example, the anomalous heavy sea-ice conditions in the mid-1970s
and mid-1980s caused significant declines in the productivity of ringed
seals, which resulted in similar declines in the birth rate of polar
bears and the survival of subadults (Stirling 2002, p. 68). The
presence of and accessibility of ice seals in the sea-ice habitat are
vital to the conservation of the species.
Although seals are their primary prey, polar bears occasionally
take much larger animals, such as walruses (Odobenus rosmarus), narwhal
(Monodon monoceros), and beluga whales (Delphinapterus leucas) (Kiliaan
and Stirling 1978, p. 199; Smith 1980, p. 2,206; Smith 1985, pp. 72-73;
Lowry et al. 1987, p. 141; Calvert and Stirling 1990, p. 352; Smith and
Sjare 1990, p. 99). While these species are occasionally taken, they
currently appear to be less important energy sources (Derocher et al.
2004, p. 163). In some areas and under some conditions, carrion or
remains of subsistence-harvested bowhead whales (Balaena mysticetus)
may be important to polar bear sustenance as short-term supplemental
forms of nutrition. Stirling and [Oslash]ritsland (1995, p. 2,609)
suggested that in areas where ringed seal populations were reduced,
other prey species were being substituted. For example, harp seals
(Pagophilus groenlandicus) are the predominant prey species for polar
bears from the Davis Strait population in Canada (Iverson et al. 2006,
p. 110). Greater availability of harp seals due to a change in
distribution may continue to support large numbers of polar bears from
the Davis Strait population even if ringed seals become less available
(Stirling and Parkinson 2006, p. 270; Iverson et al. 2006, p. 110).
Polar bears are very sensitive to changes in sea ice due to climate
change because of the effects on the availability of ice seals and
their specialized feeding requirements (Laidre et al. 2008, p. S112).
The availability and accessibility of seals to polar bears, which often
hunt at the seals' breathing holes, are likely to decrease with
increasing amounts of open water or fragmented ice (Derocher et al.
2004, p. 167). Polar bears rarely capture ringed seals in the open
water (Furnell and Oolooyuk 1980, p. 89), so it is unlikely that polar
bears can survive in ice-free water. Although polar bears occasionally
take harbor seals (Phoca vitulina), bearded seals, and walrus when they
are hauled out on land, it is unlikely, if those species were
available, that this would compensate for the reduced availability of
ringed seals (Derocher et al. 2004, p. 167).
Pregnant polar bear females with insufficient fat stores prior to
denning, or in poor hunting condition in the early spring after den
emergence, may lead to increased cub mortality (Atkinson and Ramsay
1995, pp. 565-566; Derocher et al. 2004, p. 170). Regehr et al. (2007b,
pp. 17-18) suggested that the increase in the duration of the open
water period in fall was a contributing factor to the decrease in the
productivity of polar bears in the southern Beaufort Sea population and
to the population decline in the Western Hudson Bay population
(Stirling et al. 1999, p. 304; Regehr et al. 2007a, p. 2,673). In the
southern Beaufort Sea, the decline in the survival rate of cubs may be
directly linked to the inability of females to obtain sufficient
nutrition prior to denning (Regehr et al. 2006, p. 11; Amstrup et al.
2008, p. 236). The inability to obtain sufficient food resources may be
due to increases in the length of the fall open water period, which
reduces the amount of time available for feeding prior to denning.
Polar bears in the southern Beaufort Sea typically reach their maximum
weight in fall. Fall, therefore, may be a critical period for winter
survival for this population (Garner et al. 1994, p. 117; Durner and
Amstrup 1996, p. 483). In Alaska, it is not unusual for females in poor
condition after den emergence to lose their cubs (Amstrup 2003, p.
601).
During the spring, ringed seals give birth to pups in subnivean (in
or under the snow layer) lairs on top of the sea ice. The availability
of these seal pups to adult female polar bears with cubs-of-the-year in
the spring following den emergence may be critical (Garner et al. 1994,
p. 117; Stirling and Lunn 1997, p. 177). Atkinson and Ramsay (1995, p.
565) and Derocher and Stirling (1996, p. 1,249; 1998, pp. 255-256)
found that heavier cubs have a higher survival rate, and that declines
in fat reserves in females during critical periods can negatively
affect denning success and cub survival.
Reductions in sea ice will likely reduce productivity of most ice
seal species as well, resulting in changes in composition and decrease
in abundance of seal species indigenous to some areas (Derocher et al.
2004. pp. 167-169). These changes will likely decrease availability, or
the timing of availability, of seals as food for polar bears. Ringed
seals will likely remain distributed in shallower, more productive
southerly areas that are losing their seasonal sea ice and becoming
characterized by vast expanses of open water in the spring-summer and
fall periods (Harwood and Stirling 1992, pp. 897-898). As a result, the
seals will remain unavailable as prey to polar bears during critical
times of the year. These factors may, in turn, result in a steady
decline in the physical condition of polar bears, which precedes
population-level demographic declines in reproduction and survival
(Stirling and Parkinson 2006, pp. 266-267; Regehr et al. 2007a, pp.
2,679-2,681).
Based on the information presented above, we conclude that the
accessibility and availability of sufficient food resources is
dependent upon availability of suitable sea-ice habitat over the
shallower waters of the Chukchi and Bering Seas and southern Beaufort
Sea. Therefore, we have determined that sea ice that moves or forms
over the shallower waters of the continental shelf (300 m (984.2 ft) or
less), and that contains adequate prey resources (primarily ringed and
bearded seals) to support polar bears, is an essential physical feature
for polar bears in the southern Beaufort, Chukchi, and Bering Seas for
food and physiological requirements.
[[Page 76113]]
Cover or Shelter
Polar bears from the U.S. populations generally remain with the sea
ice for most of the year, and, except for maternal denning, only spend
short periods of time on land. Polar bears from U.S. populations take
advantage of logs, ocean bluffs, and stream and river drainages to seek
shelter from the wind (Lentfer 1976, p. 9). Messier et al. (1994, p.
425), Ferguson et al. (2000a, p. 1,122), and Omi et al. (2003, p. 195)
found that polar bears of all ages and both sexes from more northerly
populations in Canada may remain in temporary shelter dens in snow
drifts on the ice for up to 2 months, presumably to avoid storms,
periods of intense cold, and food shortages. The lack of documented use
of shelter dens for extended periods by polar bears in Alaska is
probably due to the availability of ice seals throughout the winter and
less severe weather conditions compared to more northerly latitudes.
Occasionally polar bears in the United States, particularly females
with small cubs, will dig temporary shelter dens to avoid severe winter
storms (Lentfer 1976, p. 9; Amstrup, unpublished data). Information
from Native hunters in Alaska suggests that, except for pregnant
females and females with young cubs, polar bears do not require
additional cover or shelter for survival throughout the year (Lentfer
1976, p. 9). However, the importance of these shelter dens may increase
in the future if polar bears, experiencing nutritional stress as a
result of loss of optimal sea-ice habitat and access to prey, need to
minimize nonessential activities to conserve energy.
Currently, cover and shelter are not considered to be limiting
factors for the conservation of polar bears in the United States. The
needs of parturient females and cubs for cover and shelter are
satisfied through denning behavior and discussed below.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
One of the most critical periods for polar bears occurs during
denning because the newborn cubs are completely helpless and must
remain in the maternal den for protection and growth until they are
able, at approximately 3 months of age, to survive the outside elements
(Blix and Lentfer 1979, p. R70; Amstrup 2003, p. 596; Durner et al.
2006b, p. 31). Den disturbances from human activities have caused den
abandonment and cub mortality in the past (Amstrup 1993, p. 249).
The majority of polar bears that den in the United States are from
the southern Beaufort Sea population. Unlike the high density of dens
that occur on Wrangel Island, Russia (one of the principal denning
areas of the Chukchi-Bering Seas population), individual polar bear
dens in northern Alaska are widely dispersed over large areas. Within
this region, barrier islands, river bank drainages, and coastal bluffs
that occur at the interface of mainland and marine habitat receive
proportionally greater use for denning than other areas (Amstrup 2003,
pp. 596-597; Durner et al. 2006b, p. 34). We applied the criteria
developed by Durner et al. (2009, p. 4-5) to the potential denning
areas in Alaska and determined that only the denning habitat from
Barrow to the United States-Canada border was considered essential.
Polar bears from the southern Beaufort Sea population den on
drifting pack ice, shore-fast ice, and land (Amstrup and Gardner 1994,
pp. 4-5), while most other polar bear populations den only on land or
shore-fast ice (Amstrup 2003, p. 596). The distribution of maternal
denning in the southern Beaufort Sea appears to have changed in recent
years. While Amstrup and Gardner (1994) observed that approximately 50
percent of maternal dens occurred on the pack ice, Fischbach et al.
(2007, p. 1,399) documented a decrease in pack ice denning over 2
decades, from 62 percent (1985-1994) to 37 percent (1998-2004).
Fischbach et al. (2007, p. 1,403) concluded that the changes in the den
distribution were in response to delays in the autumn freeze-up and a
reduction in availability and quality of the more stable pack ice
suitable for denning, due to increasingly thinner and less stable ice
in fall. It is expected that the number of polar bears denning on land
in northern Alaska east of Barrow will continue to increase, if the
predictions of the continued loss of arctic sea ice due to climate
change occur (Schliebe et al. 2008, p. 2).
Polar bears in the Beaufort Sea exhibit fidelity to denning areas
but not specific den sites (Amstrup and Gardner 1994, p. 7). The
location of terrestrial maternal dens is dependent upon a variety of
factors, such as sea-ice conditions, prey availability, and weather,
all of which vary seasonally and annually. Stirling and Andriashek
(1992, p. 364) found that dens often occurred on land adjacent to areas
that developed sea ice early in the autumn. Only 4 percent of the polar
bear dens from the southern Beaufort Sea population were found on the
shore-fast ice adjacent to the mainland coast of Alaska during the
1990s. Thus, the shore-fast ice was not a major denning habitat even
during the period when approximately 60 percent of the polar bears dens
occurred on the ice.
Polar bears typically choose terrestrial den sites that are near
the coast. Amstrup et al. (2003, p. 596) determined that 80 percent of
all the terrestrial maternal dens located by radio-telemetry were found
within 10 km (6.2 mi) of the coast, and over 60 percent were on the
coast or on barrier islands. Polar bears frequently use the larger
tundra-covered barrier islands that have sufficient relief to
accumulate enough snow for denning (Amstrup and Gardner 1994, p. 7).
Specific topographic features, such as coastal bluffs and river banks,
with suitable macrohabitat characteristics are used as den sites.
Suitable macrohabitat characteristics include: (a) Steep, stable slopes
(mean = 40[deg], SD = 13.5[deg], range 15.5-50.0[deg]), with heights
ranging from 1.3 to 34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft,
mean = 17.7 ft, SD = 24.3), and with water or relatively level ground
below the slope and relatively flat terrain above the slope; (b)
unobstructed, undisturbed access between den sites and the coast; and
(c) the absence of disturbance from humans and human activities that
might attract other polar bears.
Using high-resolution photographs, Durner et al. (2001, p. 119;
2006b, p. 33) mapped suitable denning habitat based on the physical
characteristics described above for polar bears from the Colville Delta
to the United States-Canada border. They determined there were 1,782 km
(1,107 mi) of suitable bank habitat for denning by polar bears between
the Colville River and the Tamayariak River (Durner et al. 2001, p.
119) and an additional 3,621 km (2,250 mi) between the Canning River
and the United States-Canada border in northern Alaska (Durner et al.
2006b, p. 33). It should be noted that the areas included in these
calculations only include those areas from the Colville River to the
United States-Canada border and do not include denning habitat from the
Colville River to Barrow or denning habitat located farther inland.
Great distances of open water and delayed freeze-up can prohibit
polar bear terrestrial denning. On Hopen, the most southern island of
Svalbard, Norway, polar bears do not den when sea ice freezes too late
(Derocher et al. 2004, p. 166), and terrestrial denning by polar bears
is also restricted by greater distances of open water (Fischbach et al.
2007, p. 1,402). In the southern Beaufort Sea, changes in polar bear
habitat use
[[Page 76114]]
have been associated with declines in sea-ice extent (Fischbach et al.
2007, p. 1,402; Durner et al. 2009a, pp. 55). Fischbach et al. (2007,
p. 1403-1404) concluded that female polar bear denning distribution
changes in response to the changing nature of sea ice (e.g., amount of
stable ice, ice consolidation, and a longer open-water period).
In recent years, the East Siberian and Chukchi Seas have exhibited
some of the most significant changes in the Arctic, including
pronounced warming and thinning of the sea ice (Rigor et al. 2002, p.
2,660; Rodrigues 2008, p. 141; Durner et al. 2009a, p. 49; Markus et
al. 2009, pp. 12-13). Scientific data (Rigor and Wallace 2004, p. 3)
and local observations suggest that reductions in sea ice in the
Chukchi Sea became significant starting at the end of the 1980s.
Rodrigues (2008, p. 141) documented declines in both sea-ice extent and
area for all Russian Arctic seas between 1979 and 2007. Loss was
particularly high along the Alaskan and Chukotkan coasts. Markus et al.
(2009, p. 9) observed trends of earlier melt onset and later freeze up
to be stronger in the Chukchi and Beaufort Seas than any other region
in the Arctic. These ice variables have been shown to be the primary
drivers of reduced summer sea ice and, therefore, likely reflect
changes in a number of sea-ice characteristics. The Chukchi Sea many be
particularly vulnerable to rapid sea-ice loss due to the influence of
warmer waters of the Pacific Ocean (Woodgate et al. 2006, p. 3), as
well as regional effects of atmospheric circulation (Rigor et al. 2002,
p. 2,658; Maslanik et al. 2007, p. 3).
Although suitable topography exists on land in western Alaska along
the Chukchi Sea coast (USFWS 1995, pp. A19-A33), most of the polar
bears from the Chukchi-Bering Seas population currently and
historically denned on Wrangel Island and the Chukotka Peninsula,
Russia (Stishov 1991b, pp. 90-92). Polar bears likely denned on Wrangel
Island and the Chukotka Peninsula because of the proximity of these
terrestrial denning areas to the sea-ice edge in the fall. The Service
believes that the lengthening of the open-water season and declines in
the minimum sea-ice extent coupled with later freeze-up of sea ice in
the past 10 years further accentuates the lack of access to terrestrial
denning habitat on the coast of western Alaska. The fall sea-ice extent
in the Chukchi Sea has declined in recent years (Rodrigues 2008, p.
141; Comiso et al. 2008, p. 6; Durner et al. 2009a, p. 46; Markus et
al. 2009, p. 1). The Arctic sea ice this year (2010) receded to the
third lowest extent since satellite tracking began in 1979, and during
3 of the past 4 years has record minimum areas have been documented
(2007 (lowest), 2009 (second-lowest) and 2010 (third-lowest)) (http://
nsidc.org/arcticseaicenews/ viewed on September 21, 2010). Thus, the
distances between the summer foraging habitats and the terrestrial
denning habitat in western Alaska have increased and are expected to
continue to increase.
In 2008, the Service and the USGS initiated a polar bear study in
the Chukchi Sea. An objective of the study is to examine and assess
seasonal distribution and habitat use of polar bears in response to
environmental changes. During field work, between March and May from
2008-2009, 37 radio collars were deployed on adult female polar bears
captured on the sea ice between Point Hope and Kotzebue in the Alaskan
Chukchi Sea. Locations of collared female polar bears indicated that of
13 potentially parturient females none denned on the coast of western
Alaska. Three did not enter dens and, of the 10 denning occurrences, 8
occurred on Wrangel Island, Russia; 1 on Herald Island Russia; and 1 on
sea ice that drifted over 1,287 km (800 mi) north of Wrangel Island,
Russia (USFWS unpublished data).
Based on our evaluation of the available information, we believe it
is reasonable to assume that the increase in both distance from shore
and duration of the fall minimum ice extent in the Chukchi Sea prevents
parturient females from reaching the western coast of Alaska prior to
denning. Thus, terrestrial denning habitat in western Alaska lacks the
``access via sea-ice'' component of the terrestrial denning habitat PCE
that is necessary for inclusion in critical habitat.
Sea-ice conditions after den emergence can also be important for
cub survival (Stirling et al. 1993, pp. 20-21; Stirling and Lunn 1997,
p. 177), as females typically take their cubs out on the sea ice as
soon as the cubs can travel. Small size, limited mobility, and
susceptibility to hypothermia from swimming in the cold arctic waters
limit the ability of cubs-of-the-year to traverse extensive areas of
broken ice and open water immediately following den emergence. If sea-
ice conditions become increasingly unstable and fragmented, and large
areas of open water develop between the shore-fast ice and the drifting
pack ice, females with cubs-of-the-year may have to rely more heavily
on shore-fast ice to prevent cub mortality from hypothermia (Larsen
1985, p. 325; Blix and Lentfer 1979, p. R70). Norwegian polar bear
researchers (Aars, unpublished data) found that females with small cubs
swim much less than lone females in the spring. In the southern
Beaufort Sea, females with cubs-of-the-year show a strong preference,
following den emergence, for stable, shore-fast ice presumably to
protect the cubs from adverse sea and ice conditions and adult male
polar bears (Stirling et al. 1993, pp. 20-21; Stirling and Lunn 1997,
p. 177; Amstrup et al. 2006b, p. 1,000). Adult females with cubs-of-
the-year overall have smaller annual activity areas than do single
females (Amstrup et al. 2000b, p. 960; Mauritzen et al. 2001, p.
1,710).
Pregnant females select den locations that have access to adequate
prey before and after denning and that will provide a safe environment
from adult males (which occasionally kill cubs (Derocher and Wiig 1999,
p. 308) and females (Amstrup et al. 2006b, p. 998)), human disturbance,
and adverse weather conditions for their cubs. Consequently, we have
determined that terrestrial denning habitat includes the following
features essential to the conservation of the species: coastal bluffs
and river banks with (a) steep, stable slopes (range 15.5-50.0[deg]),
with heights ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water
or relatively level ground below the slope and relatively flat terrain
above the slope; (b) unobstructed, undisturbed access between den sites
and the coast; (c) sea ice in proximity of terrestrial denning habitat
prior to the onset of denning during the fall to provide access to
terrestrial den sites; and (d) the absence of disturbance from humans
and human activities that may attract other bears.
Habitats Protected From Disturbance or Representative of the Historic,
Geographical, and Ecological Distributions of the Species
Coastal barrier islands and spits off the Alaska coast provide
areas free from human disturbance and are important for denning,
resting, and migration along the coast. During fall surveys along the
northern coast of Alaska from Barrow to the United States-Canada border
(2000-2007), 82 percent of the bears detected have occurred on the
barrier islands, 11 percent on the mainland, 6 percent on the shore-
fast ice, and 1 percent in the water (USFWS, unpublished data). Polar
bears regularly use barrier islands to move along the Alaska coast as
they traverse across the open water, ice, and shallow sand bars between
the islands. Barrier islands that have been used multiple times for
denning include Flaxman Island, Pingok Island, Cottle Island, Thetis
Island, and
[[Page 76115]]
Cross Island (Amstrup, unpublished data; USFWS 1995, p. 27).
Historically, except for denning, polar bears in the United States
spend almost the entire year on the sea ice and very little time on
land. However, in recent years, the number of bears using the coastal
areas, particularly during the summer and fall, has increased (Schliebe
et al. 2008, p. 2). This may reflect the increase of the open-water
period during the summer and early fall in addition to the retreat of
the sea ice beyond the continental shelf (Zhang and Walsh 2006, pp.
1,745-1,746; Serreze et al. 2007, pp. 1,533-1,536; Stroeve et al. 2007,
pp. 1-5). Thus, the importance of barrier island habitat, particularly
during the summer and fall, is likely to increase.
Typically, polar bears avoid humans. This is demonstrated by the
areas where they choose to rest, their den site locations, and their
avoidance of snow machines (Anderson and Aars 2008, p. 503). For
example, polar bears attracted to subsistence-harvested bowhead whale
carcasses on Barter Island, Alaska, swim across the lagoon and rest on
Bernard and Jago spits during the day (Miller et al. 2006, p. 9) rather
than resting on Barter Island closer to the food resource. Also, polar
bears tend to avoid denning in areas where active oil and gas
exploration, development, and production activities are occurring. In
addition, Anderson and Aars (2008, p. 503) report that polar bear
females and cubs at Svalbard react to snowmobiles at a mean distance of
1,534 m (5,033 ft).
Within the range of the polar bear population, barrier islands are
currently used for denning by parturient females, as a place to avoid
human disturbance, and to move along the coast to access den sites or
preferred feeding locations. We define barrier island habitat as the
barrier islands off the coast of Alaska, their associated spits, and
the no-disturbance zone (area extending out 1.6 km (1 mi) from the
barrier island mean high tide line). A 1.6-km (1-mi) distance was
chosen because this distance approximates the mean distance females and
cubs reacted to snowmobiles at Svalbard (Andersen and Aars 2008, p.
503), and because adult females are the most important age and sex
class in the population. We conclude that barrier island habitat, as
undisturbed areas for resting, denning, and movement along the coast,
is a physical feature essential to the conservation of polar bears in
the United States.
Primary Constituent Elements for Polar Bear in the United States
Based on the needs identified above and our current knowledge of
the life history, biology, and ecology of the species, we have
determined that the primary constituent elements (PCEs) for the polar
bear in the United States are:
(1) Sea ice habitat used for feeding, breeding, denning, and
movements, which is sea ice over waters 300 m (984.2 ft) or less in
depth that occurs over the continental shelf with adequate prey
resources (primarily ringed and bearded seals) to support polar bears.
(2) Terrestrial denning habitat, which includes topographic
features, such as coastal bluffs and river banks, with suitable
macrohabitat characteristics. Suitable macrohabitat characteristics
are: (a) Steep, stable slopes (range 15.5-50.0[deg]), with heights
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or
relatively level ground below the slope and relatively flat terrain
above the slope; (b) unobstructed, undisturbed access between den sites
and the coast; (c) sea ice in proximity of terrestrial denning habitat
prior to the onset of denning during the fall to provide access to
terrestrial den sites; and (d) the absence of disturbance from humans
and human activities that might attract other polar bears.
(3) Barrier island habitat used for denning, refuge from human
disturbance, and movements along the coast to access maternal den and
optimal feeding habitat. This includes all barrier islands along the
Alaska coast and their associated spits, within the range of the polar
bear in the United States, and the water, ice, and terrestrial habitat
within 1.6 km (1 mi) of these islands (no-disturbance zone).
We are designating three critical habitat units based on the three
PCEs described above. We designate these units based on sufficient PCEs
being present to support at least one of the species' essential life-
history functions. Each unit contains at least one of the three PCEs.
Special Management Considerations or Protection
When designating critical habitat within the geographical area
occupied by the species, we assess whether the physical and biological
features essential to the conservation of the species may require
special management considerations or protection. Potential impacts that
could harm the identified essential physical and biological features
include reductions in the extent of arctic sea ice due to climate
change; oil and gas exploration, development, and production; human
disturbance; and commercial shipping. We discuss some of these threats
to the essential features below.
Reduction in Sea Ice Due to Climate Change
Sea ice is rapidly diminishing throughout the Arctic, and declines
in optimal polar bear sea-ice habitat have already been documented in
the southern Beaufort and Chukchi Seas between 1985-1995 and 1996-2006
(Durner et al. 2009a, p. 45). In addition, it is predicted that some of
the largest declines in optimal polar bear sea-ice habitat in the 21st
century will occur in the Chukchi and southern Beaufort Seas (Durner et
al. 2009a, p. 45). Patterns of increased temperatures, earlier onset of
thawing and longer melting periods, later onset of freeze-up, increased
rain-on-snow events (rain in late winter which may cause snow dens to
collapse and result in mortality of the denning bears (adults and
cubs)), and potential reductions in snowfall are occurring. Further,
positive feedback systems (i.e., the sea-ice albedo feedback mechanism,
described below) and changing ocean and atmospheric circulation
patterns can operate to amplify the warming trend. The sea-ice albedo
feedback effect is the result of a reduction in the extent of brighter,
more reflective sea ice or snow, which reflects solar energy back into
the atmosphere, and a corresponding increase in the extent of darker,
more heat-absorbing water or land that absorbs more of the sun's
energy. This greater absorption of energy causes faster melting of ice
and snow, which in turn causes more warming, and thus creates a self-
reinforcing cycle or feedback loop that becomes amplified and
accelerates with time. Lindsay and Zhang (2005, p. 4,892) suggest that
the sea-ice albedo feedback mechanism caused a tipping point in arctic
sea ice thinning in the late 1980s, sustaining a continual decline in
sea-ice cover that cannot be easily reversed. As a result of changes to
the sea-ice habitat due to climate change, there is fragmentation of
sea ice, a dramatic increase in the extent of open water areas
seasonally, a reduction in the extent and area of sea ice in all
seasons, a retraction of sea ice away from productive continental shelf
areas throughout the Polar Basin, a reduction of the amount of thicker
and more stable multi-year ice, and declining thickness and quality of
shore-fast ice (Parkinson et al. 1999, pp. 20,840, 20,849; Rothrock et
al. 1999, p. 3,469; Comiso 2003, p. 3,506; Fowler et al. 2004, pp. 71-
74; Lindsay and Zhang 2005, p. 4,892; Holland et al. 2006, pp. 1-5;
Comiso 2006, p. 72; Serreze et al. 2007, pp. 1,533-1,536; Stroeve et
al. 2008, p. 13). These events are interrelated and combine to decrease
the extent and
[[Page 76116]]
quality of sea ice as polar bear habitat during all seasons, and
particularly during the spring-summer period. Lastly, it is predicted
that Arctic sea ice will likely continue to be affected by climate
change for the foreseeable future (IPCC 2007, p. 49; J. Overland, NOAA,
in comments to the USFWS, 2007; May 18, 2008, 73 FR 28239).
Polar bear populations in the Chukchi Sea, Barents Sea, southern
Beaufort Sea, Kara Sea, and Laptev Sea (the Divergent Ice Ecoregion)
will, or are currently, experiencing the initial effects of changes in
sea ice (Rode et al. 2007, p. 12; Regehr et al. 2007b, pp. 18-19;
Hunter et al. 2007, p. 19; Amstrup et al. 2008, pp. 239-240). These
populations are vulnerable to large-scale dramatic seasonal
fluctuations in ice movements, decreased access to abundant prey, and
increased energetic costs of hunting. These concerns were punctuated by
the record minimum summer ice conditions in September 2007, when vast
ice-free areas encroached into the central Arctic Basin, and the
Northwest Passage was open for the first time in recorded history. The
record low sea-ice conditions of 2007, 2009, and 2010 extend an
accelerating trend in habitat loss, and further support a concern that
current sea-ice models may be conservative and underestimate the rate
and level of sea-ice loss in the future (Stroeve et al. 2007, p. 9;
Stroeve et al. 2006, p. 371,373; http://nsidc.org/arcticseaicenews/
viewed on September 21, 2010).
While we recognize that climate change will negatively affect
optimal sea-ice habitat for polar bears, the underlying causes of
climate change are complex global issues that are beyond the scope of
the Act. However, we will continue to evaluate any special management
considerations or protection that may be needed for polar bears and
their habitat.
Petroleum Hydrocarbons
Pollution from various potential sources, including oil spills from
vessels, or discharges from oil and gas drilling and production, could
render areas containing the identified physical and biological features
unsuitable for use by polar bears, effectively negating the
conservation value of these features. Because of the vulnerabilities to
pollution sources, these features may require special management
considerations or protection through such measures as placing
conditions on Federal permits or authorizations to stimulate special
operational restraints, mitigative measures, or technological changes.
Petroleum hydrocarbons come from both natural and anthropogenic
sources. The primary natural source is oil seeps. The Arctic Monitoring
and Assessment Programme (AMAP) (2007, p. 18) notes that ``natural
seeps are the major source of petroleum hydrocarbon contamination in
the arctic environment.'' Anthropogenic sources include activities
associated with exploration, development, and production of oil (well
blowouts, operational discharges); ship- and land-based transportation
of oil (oil spills from pipelines, accidents, leaks, and ballast
washings); discharges from refineries and municipal waste water; and
combustion of fossil fuels.
Polar bears' range overlaps with many active and planned oil and
gas operations within 40 km (25 mi) of the coast. In the past, no major
oil spills of more than 3,000 barrels have occurred in the marine
environment within the range of polar bears. Oil spills associated with
terrestrial pipelines have occurred in the vicinity of polar bear
habitat, including denning areas (e.g., Russian Federation, Komi
Republic, 1994 oil spill, http://www.american.edu/ted/KOMI.HTM).
Despite numerous safeguards to prevent spills, they do occur. An
average of 70 oil and 234 waste product spills per year occurred
between 1977 and 1999 in the North Slope oil fields (71 FR 14456; March
22, 2006). Many spills are small (less than 50 barrels) by oil and gas
industry standards, but larger spills (greater than or equal to 500
barrels) account for much of the annual volume. The largest oil spill
to date on the North Slope oil fields in Alaska (estimated volume of
approximately 4,786 barrels [one barrel = approx. 42 gallons]) occurred
on land in March 2006, and resulted from an undetected leak in a
corroded pipeline (see State of Alaska Prevention and Emergency
Response Web site at http://www.dec.state.ak.us/spar/perp/response/
sum_fy06/060302301/060302301_index.htm).
The MMS (now BOEMRE) (2004, pp. 10, 127) estimated an 11 percent
chance of a marine spill greater than 1,000 barrels in the Beaufort Sea
from the Beaufort Sea Multiple Lease Sale in Alaska. The MMS prepared
an environmental impact statement (EIS) on the Chukchi Sea Planning
Area; Oil and Gas Lease Sale 193 and Seismic Surveying Activities in
the Chukchi Sea, and MMS determined that polar bears and their habitat
could be affected by both routine activities and a large oil spill (MMS
2007, pp. ES 1-10). Regarding routine activities, the EIS determined
that small numbers of polar bears could be affected by ``noise and
other disturbance caused by exploration, development, and production
activities'' (MMS 2007, p. ES-4). Data provided by monitoring and
reporting programs in the Beaufort Sea and in the Chukchi Sea, as
required under the MMPA incidental take authorizations for oil and gas
activities, have shown that mitigation measures have successfully
minimized impacts to polar bears. For example, since the first
incidental take regulations became effective in the Chukchi and
Beaufort Seas (in 1991 and 1993, respectively), there has been no known
instance of a polar bear being killed. The EIS also evaluated events
that would be possible over the life of the hypothetical development
and production that could follow the lease sale, and estimated that
``the chance of a large spill greater than or equal to 1,000 barrels
occurring and entering offshore waters is within a range of 33 to 51
percent.'' If a large spill were to occur, the analysis conducted as
part of the EIS process identified potentially significant impacts to
polar bears occurring in the area affected by the spill; the evaluation
was done without regard to the effect of mitigating measures (MMS 2007,
p. ES-4). An oil spill in the Arctic, similar to the recent
catastrophic oil spill from the Deepwater Horizon rig in the Gulf of
Mexico, would be more difficult to control and clean up effectively due
to the extreme Arctic conditions, fewer resources available locally to
respond to such a spill, and the difficulty accessing these very remote
areas. The Deepwater Horizon spill demonstrates the importance for oil
and gas operators working in the offshore environment to have an
adequate quantity of resources on hand to respond to a potential large
spill (e.g., skimmers, oil booms, and updated oil spill response
plans).
Oil spills in the fall or spring during the formation or break-up
of sea ice present a greater risk to polar bear habitat because of
difficulties associated with clean-up during these periods, and the
presence of bears in the prime feeding areas over the continental
shelf. Amstrup et al. (2000a, p. 5) concluded that the release of oil
trapped under the ice from an underwater spill during the winter could
be catastrophic during spring break-up if bears were present. During
the autumn freeze-up and spring break-up periods, any oil spilled in
the marine environment would likely concentrate and accumulate in open
leads and polynyas, areas of high activity for both polar bears and
seals (Neff 1990, p. 23). This would result in an oiling of both polar
bears and seals
[[Page 76117]]
(Neff 1990, pp. 23-24; Amstrup et al. 2000a, p. 3; Amstrup et al.
2006a, p. 9).
Historically, oil and gas activities have resulted in little direct
mortality to polar bears, and the mortality that has occurred has been
associated with human-bear interactions rather than spill events.
However, oil and gas activities are increasing as development continues
to expand throughout the U.S. Arctic and internationally, including in
polar bear terrestrial and marine habitats. Offshore oil and gas
exploration, development, and production activities in Alaska and
adjacent territorial and U.S. waters increase the potential for
disturbance of polar bears, their nearshore sea-ice habitat, and the
relatively pristine barrier islands used for refuge, denning, and
movements. The greatest threat of future oil and gas development is the
potential effect of an oil spill or discharges into the marine
environment on polar bears or their habitat. In addition, disturbance
from activities associated with oil and gas activities can result in
direct or indirect effects on polar bear use of habitat. Direct
disturbances include displacement of bears or their primary prey
(ringed and bearded seals) due to the movement of equipment, personnel,
and ships through polar bear habitat. Direct disturbance may cause
abandonment of established dens before cubs are able to survive outside
the den. Female polar bears tend to select secluded areas for denning,
presumably to minimize disturbance during the critical period of cub
development. Expansion of the network of roads, pipelines, well pads,
and infrastructure associated with oil and gas activities may force
pregnant females into marginal denning locations (Lentfer and Hensel
1980, p. 106; Amstrup et al. 1986, p. 242). The potential effects of
human activities are much greater in areas where there is a high
concentration of dens such as Wrangel Island, one of the principal
denning areas for the Chukchi-Bering Seas population (Kochnev 2006, p.
163). Oil spills, however, are a concern for polar bears throughout
their range.
The National Research Council (NRC 2003, p. 169) evaluated the
cumulative effects of oil and gas development in Alaska and concluded
the following related to polar bears and ringed seals:
Industrial activity in the marine waters of the Beaufort
Sea has been limited and sporadic and likely has not caused serious
cumulative effects to ringed seals or polar bears.
Careful mitigation can help to reduce the negative effects
of oil and gas development, especially if there are no major oil
spills. However, full-scale industrial development of waters off the
North Slope would increase the negative effects to polar bears through
the displacement of polar bears and ringed seals from their habitats,
increased mortality, and decreased reproductive success.
A major Beaufort Sea oil spill would have major effects on
polar bears and ringed seals.
Climatic warming at predicted rates in the Beaufort Sea
region is likely to have serious consequences for ringed seals and
polar bears, and those effects will increase with the effects of oil
and gas activities in the region.
Unless studies to address the potential increase of and
cumulative effects of North Slope oil and gas activities on polar bears
or ringed seals are designed, funded, and conducted over long periods
of time, it will be impossible to verify whether such effects occur, to
measure them, or to explain their causes.
Some alteration of polar bear habitat has occurred from oil and gas
development, seismic exploration, or other activities in denning areas.
Potential oil spills in the marine environment and expanded activities
increase the potential for additional changes to polar bear habitat
(Amstrup 2000, pp. 153-154). Any such impacts would be additive to
other factors already or potentially affecting polar bears and their
habitat.
Special management considerations and protection may be needed to
minimize the risk of crude oil spills and human disturbance associated
with oil and gas development and production, oil and gas tankers, and
potential commercial shipping along the Northern Sea Route to polar
bears and the habitat features essential to their conservation.
Shipping and Transportation
Observations over the past 50 years show a decline in arctic sea-
ice extent in all seasons, with the most prominent retreat occurring in
the summer (Stroeve et al. 2007, p. 1). Climate models project an
acceleration of this trend with periods of extensive melting in spring
and autumn, which would open new shipping routes and extend the period
that shipping is feasible (ACIA 2005, p. 1,002). Notably, the
navigation season for the Northern Sea Route (across northern Eurasia)
is projected to increase from 20-30 days per year to 90-100 days per
year. Russian scientists cite increasing use of the Northern Sea Route
for transit and regional development as a major source of disturbance
to polar bears in the Russian Arctic (Wiig et al. 1996, pp. 23-24;
Belikov and Boltunov 1998, p. 113; Ovsyanikov 2005, p. 171). Commercial
shipping using the Northern Sea Route, especially if it required the
use of ice breakers to maintain open shipping lanes, could disturb
polar bear feeding and other behaviors, increase the risk of oil spills
(Belikov et al. 2002, p. 87), and potentially alter optimal polar bear
sea-ice habitat.
Increased shipping activity may disturb polar bears in the marine
environment, adding additional energetic stresses. If ice-breaking
activities occur, these activities may alter essential features used by
polar bears, possibly creating ephemeral lead systems and concentrating
ringed seals within the refreezing leads. This, in turn, may allow for
easier access to ringed seals and may have some beneficial value to
polar bears. Conversely, this may cause polar bears to use areas that
may have a higher likelihood of human encounters as well as increased
likelihood of exposure to oil or waste products that are intentionally
or accidentally released into the marine environment. If shipping
involved the tanker transport of crude oil or oil products, there would
be an increased likelihood of small- to large-volume spills and
corresponding oiling of essential sea-ice and terrestrial habitat
features, polar bears, and seal prey species (AMAP 2005, pp. 91, 127).
The Polar Bear Specialist Group (PBSG) recognized the potential for
increased shipping and marine transportation in the Arctic with
declining seasonal sea-ice conditions (Aars et al. 2006, pp. 22, 58,
171). The PBSG recommended that the parties to the 1973 Agreement on
the Conservation of Polar Bears take appropriate measures to monitor,
regulate, and mitigate shipping traffic impacts on polar bear
populations and habitats (Aars et al. 2006, p. 58).
Summary of Anthropogenic Threats to Features Essential to the
Conservation of the Polar Bear Which May Require Special Management
Considerations or Protection
Increased human activities include an expansion of the level of oil
and gas exploration, development, and production onshore and offshore,
and potential increases in shipping. Individually as well as
cumulatively, these activities may result in alteration of polar bear
habitat and features essential to their conservation. Any potential
impact from these activities would be additive to other factors already
or potentially affecting polar bears and their habitat. We acknowledge
that the sum total of documented direct impacts from these activities
in the past
[[Page 76118]]
has been minimal. We also acknowledge that national and local concerns
for these activities have resulted in the development and
implementation of regulatory programs to monitor and reduce potential
effects. For example, the MMPA allows for incidental, non-intentional
take (harassment) of small numbers of polar bears during specific
activities. Specifically, section 101(a)(5) of the MMPA gives the
Service the authority to allow the incidental, but not intentional,
taking of small numbers of marine mammals, in response to requests by
U.S. citizens (as defined at 50 CFR 18.27(c)) engaged in a specified
activity (other than commercial fishing) in a specified geographic
region. Under the authority of this section of the MMPA, the Service
administers an incidental take program that allows polar bear managers
to work cooperatively with oil and gas operators to minimize impacts of
their activities on polar bears. The Service evaluates each request for
a Letter of Authorization (LOA) under the MMPA incidental take program
with special attention to mitigating impacts to polar bears, such as
limiting industrial activities around barrier island habitat, which is
important for polar bear denning, feeding, resting, and seasonal
movements. Incidental take cannot be authorized unless the Service
finds that the total of such taking will have no more than a negligible
impact on the species and, for species found in Alaska, will not have
an unmitigable adverse impact on the availability of the species for
taking for subsistence use by Alaska Natives.
If any take that is likely to occur will be limited to nonlethal
harassment of the species, the Service may issue an incidental
harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA.
The IHAs cannot be issued for a period longer than one year. If the
taking may result in more than harassment, regulations under section
101(a)(5)(A) of the MMPA must be issued, which may be in place for no
longer than 5 years. Once regulations making the required findings are
in place, we issue LOAs that authorize the incidental take consistent
with the provisions in the regulations. In either case, the IHA or the
regulations must set forth: (1) Permissible methods of taking; (2)
means of effecting the least practicable adverse impact on the species
and their habitat and on the availability of the species for
subsistence uses; and (3) requirements for monitoring and reporting.
These incidental take programs under the MMPA currently provide a
greater level of protection for the polar bear than equivalent
procedures under the Act. Negligible impact under the MMPA, as defined
at 50 CFR 18.27(c), is an impact resulting from a specific activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species through effects on annual rates of
recruitment or survival. This is a more protective standard than that
afforded by the Act. In addition, the authorizations under the MMPA are
limited to one year for IHAs and 5 years for regulations, thus ensuring
that activities that are likely to cause incidental take are
periodically reviewed and mitigation measures that ensure that take
remains at the negligible level can be updated.
In the consideration of IHAs or the development of incidental take
regulations, the Service conducts an intra-Service consultation under
section 7(a)(2) of the Act to ensure that providing an MMPA incidental
take authorization is not likely to jeopardize the continued existence
of the polar bear. Because the standard for approval of an IHA or the
development of incidental take regulations under the MMPA is no more
than ``negligible impact'' to the affected marine mammal species, we
expect that any MMPA-compliant authorization or regulation would meet
the Act's section 7(a)(2) standards of ensuring that the action is not
likely to jeopardize the continued existence of the species or result
in the destruction or adverse modification of designated critical
habitat. In addition, we anticipate that any proposed action(s) would
augment protection and enhance agency management of the polar bear
through the application of site-specific mitigation measures contained
in authorization issued under the MMPA.
The incidental take regulations for polar bears are an example of
an application of the MMPA associated with onshore and offshore oil and
gas exploration, development, and production activities in Alaska.
Since 1991, affiliates of the oil and gas industry have requested, and
we have issued regulations for, incidental take authorization for
activities in areas of polar bear habitat. This includes regulations
issued for incidental take in the Chukchi Sea for the periods 1991-
1996, and June 11, 2008-June 11, 2013 (73 FR 33212), and regulations
issued for incidental take in the Beaufort Sea from 1993 to the
present. A detailed history of our past regulations for the Beaufort
Sea region can be found in our final rule published on August 2, 2006
(71 FR 43926).
The mitigation measures that we have required for all oil and gas
projects include a site-specific plan of operation and a site-specific
polar bear interaction plan. Site-specific plans outline the steps the
applicant will take to minimize impacts on polar bears, such as garbage
disposal and snow management procedures to reduce the attraction of
polar bears, an outlined chain-of-command for responding to any polar
bear sighting, and polar bear awareness training for employees. The
training program is designed to educate field personnel about the
dangers of bear encounters and to implement safety procedures in the
event of a bear sighting. Most often, the appropriate response involves
merely monitoring the animal's activities until it moves out of the
area. However, personnel may be instructed to leave an area where bears
are seen. If it is not possible to leave, the bears can be displaced by
using forms of deterrents, such as a vehicle, vehicle horn, vehicle
siren, vehicle lights, spot lights, or, if necessary, pyrotechnics
(e.g., cracker shells). The intent of the interaction plan and training
activities is to allow for the early detection and appropriate response
to polar bears that may be encountered during operations, which
eliminates the potential for injury or lethal take of bears in defense
of human life. By requiring such steps be taken, we ensure any impacts
to polar bears will be minimized and will remain negligible.
Additional mitigation measures are also required on a case-by-case
basis depending on the location, timing, and specific activity. The
types of mitigation measures that we have required include: Trained
marine mammal observers for offshore activities; pre-activity surveys
(e.g., aerial surveys, infra-red thermal aerial surveys, polar bear
scent-trained dogs) to determine the presence or absence of dens or
denning activity; measures to protect pregnant polar bears during
denning activities (den selection, birthing, and maturation of cubs),
including incorporation of a 1.6-km (1-mi) buffer surrounding known
dens; and enhanced monitoring or flight restrictions. Detailed denning
habitat maps, combined with information on denning chronology and
remote den detection methods such as forward-looking infrared (FLIR)
imagery, facilitate managing human activities associated with oil and
gas operations to minimize disturbances to female polar bears during
this critical denning period (Durner et al. 2001, p. 19; Amstrup et al.
2004b, p. 343; Durner et al. 2006b, p. 34). These mitigation measures
are implemented to limit human-bear interactions and disturbances to
bears and have ensured that industry effects
[[Page 76119]]
on polar bears have remained at the negligible level.
Incidental take regulations under the MMPA have been issued since
1991 and 1993 in the Chukchi and Beaufort Seas, respectively. The
regulations typically extend for a 5-year period. The current
regulatory period for the Beaufort Sea is August 2, 2006, to August 2,
2011, and for the Chukchi Sea is June 11, 2008, to June 11, 2013. The
5-year regulatory duration is to allow the Service (with public review)
to periodically assess whether the level of activity continues to have
a negligible impact on polar bears, their habitat, and their
availability for subsistence uses.
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas within the geographical area
occupied at the time of listing that contain the features essential to
the conservation of polar bears in the United States, and areas outside
of the geographical area occupied at the time of listing that are
essential for the conservation of polar bears. Information sources
included articles in peer-reviewed journals, scientific status surveys
and studies, biological assessments, or other unpublished materials and
expert opinion. We are not currently proposing any areas outside the
geographical area presently occupied by the species because occupied
areas are sufficient for the conservation of polar bears in the United
States.
We have also reviewed available information that pertains to the
habitat requirements of this species. During the process of preparing
our critical habitat designation for polar bears in the United States,
we reviewed the relevant information available, including peer-reviewed
journal articles, the final listing rule, unpublished reports and
materials (such as survey results and expert opinions), and regional
maps that have been digitized in ArcGIS Geographic Information System
(GIS) coverages.
We are designating critical habitat for polar bears in the United
States in areas occupied at the time of listing that are defined by
physical and biological features essential to the conservation of polar
bears in the United States and which may require special management
considerations or protection. We considered qualitative criteria in the
selection of specific essential features for polar bear critical
habitat in the United States. These criteria focused on: (1)
Identifying specific areas where polar bears consistently occur, such
as the ice edge near flaw zones, leads, or polynyas, or denning areas
near the coast; and (2) identifying specific areas where polar bears
are especially vulnerable to disturbance during denning and the open-
water period.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack the features essential for polar bear conservation. We are
not including existing manmade structures in the final critical habitat
designation because they generally do not contain the physical or
biological features essential to the conservation of the species.
Therefore, we have determined that manmade structures on all types of
land ownership do not meet the criteria to be considered critical
habitat for polar bears, or the definition of critical habitat in
section 3(5)(a) of the Act, and should not be included in the final
designation. Examples of structures that are not included as part of
designated critical habitat include: Houses, gravel roads, airport
runways and facilities, pipelines, central processing facilities,
saltwater treatment plants, well heads, pump jacks, housing facilities
or hotels, generator plants, construction camps, pump stations, stores,
shops, piers, docks, jetties, seawalls, and breakwaters on the lands
owned or leased by the oil and gas industry, USAF lands, and local
communities that overlap with this final critical habitat designation
for polar bears in Alaska.
The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect that
such developed lands are not included in the final critical habitat
designation. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been removed by
text in the final rule and are not designated as critical habitat.
Therefore, a Federal action involving these lands would not trigger a
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the essential features in the adjacent critical habitat.
Sea-Ice Habitat Criteria
The sea-ice habitat considered essential for polar bear
conservation is that which is located over the continental shelf at
depths of 300 m (984.2 ft) or less. The location of this sea-ice
habitat varies geographically, depending foremost on the time of year
(season) and secondarily on regional or local weather and oceanographic
conditions. During spring and summer, the essential sea-ice habitat
follows the northward progression of the ice edge as it retreats
northward. Conversely, during autumn, the essential sea-ice habitat
follows the southward progression of the ice edge as it advances
southward. Use by polar bears of specific areas of sea-ice habitat
varies daily and seasonally with the advance and retreat of the sea ice
over the continental shelf (Durner et al. 2004, pp. 16-20; Durner et
al. 2006a, pp. 27-30). The duration that any given location maintains
the sea-ice PCE varies annually, depending on the rate of ice melt (or
freeze), as well as local wind and ocean current patterns that dictate
the directions and rates of ice drift.
Mapping specific sea-ice habitat is impracticable because it is
dynamic and highly variable on both temporal and spatial scales. Sea-
ice distribution and composition vary within and among years. For
example, sea-ice conditions that are characteristic of polar bear
optimal feeding habitat vary depending on the wind, currents, weather,
location, and season. Therefore, sea ice that was optimal at one time
may not be at another, nor will it necessarily be the same from year-
to-year during the same month.
We used the area occupied by the polar bear in the United States,
and, within that area, the extent of the continental shelf, as criteria
to identify critical habitat containing essential sea-ice features.
Because we are limited to designating critical habitat to lands and
waters within the jurisdiction of the United States, in some areas we
also used the outer extent of the Exclusive Economic Zone of the United
States and the International Date Line (the United States-Russia
boundary) as the boundary of designated critical habitat.
Terrestrial Denning Habitat Criteria
Polar bears in the United States create maternal dens in
snowdrifts. The northern coastal plain in Alaska is relatively flat,
and thus any areas with sufficient relief, such as coastal bluffs,
river banks, and even small cut banks and streams that catch the
drifting snow, may provide suitable denning habitat. The most
frequently used denning habitat on the coastal plain of Alaska is along
coastal bluffs and river banks. Macrohabitat characteristics of the
sites chosen for snow dens were steep, stable slopes (mean = 40[deg],
SD = 13.5[deg], range 15.5-50.0[deg]), with heights ranging from 1.3 to
34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft, mean = 17.7 ft, SD =
24.3), with water or relatively level ground below the slope and
[[Page 76120]]
relatively flat terrain above the slope (Durner et al. 2001, p. 118;
Durner et al. 2003, p. 60). Although the river banks and coastal bluffs
were most frequently used as denning habitat, more subtle microhabitat
features such as deep narrow gullies, dry stream channels (usually some
distance from an active stream channel), and broad vegetated seeps that
occurred in relatively flat tundra are also used (Durner et al. 2001,
p. 118; Durner et al. 2003, p. 61). Remarkably, banks with as little as
1.3 m (4.3 ft) of relief contained dens. The common features in many of
the dens in these areas were the presence of sea ice within 16 km (10
mi) of the coast and the ability of the terrain to catch enough
drifting snow to be suitable for den construction. Although polar bears
from the Chukchi-Bering Seas population historically denned in Russia
on Wrangel Island and the Chukotka Peninsula, recent changes in the
sea-ice formation patterns (Rigor et al. 2002, p. 2,660; Rodrigues
2008, p. 141; Markus et al. 2009, p. C12023-C12024) have resulted in
the sea ice receding even farther north during the fall, which further
precludes access to coastal denning areas in Alaska prior to winter.
In northern Alaska from the United States-Canada border to Barrow,
high-density terrestrial denning habitat up to about 40 km (25 mi) from
the mainland coast has been identified (Durner et al. 2001, p. 119;
Durner et al. 2003, p. 59; Durner et al. 2006b, p. 34; Durner et al.
2009b, p. 5). Detailed denning habitat data from the United States-
Canada border to about 28.5 km (17.4 mi) southeast of Barrow, Alaska,
has been mapped, but only data for the area from the United States-
Canada border to the Colville River Delta has been field verified and
peer reviewed. Denning habitat data on barrier islands is also
available for this section of the coastline. The detailed denning
habitat information in the area between the Colville River Delta to
approximately 28.5 km (17.4 mi) southeast of Barrow, Alaska, will be
available following field-verification and peer-review. Based on the
habitat characteristics of the den sites (which we describe above), the
North Slope contains large potential areas of denning habitat.
To determine high-use coastal denning areas in Alaska, we
established selection criteria to determine the core denning areas. We
defined the maximum inland extent of critical denning habitat to be the
distance from the coast, measured in 8-km (5-mi) increments, in which
95 percent of all historical confirmed and probable dens have occurred
east of Barrow, Alaska (Durner et al. 2009b, p. 5). We determined the
inland extent of the terrestrial denning habitat from an analysis of
confirmed and probable polar bear maternal dens by radio-telemetry
between 1982 and 2009 (Durner et al. 2009b, p. 3). Based on the
preference by pregnant females to select den sites relatively near the
coast, we expect that polar bears from the Chukchi-Bering Seas
population will continue their normal behavior of traveling with
receding pack ice to den sites in Russia. We did not include potential
terrestrial or barrier island denning habitat in western Alaska in this
critical habitat designation for the polar bear. Access to coastal
denning habitat areas is an essential feature of critical habitat
because large expanses of open water and the timing of ice freeze-up
can prohibit polar bear denning. On Hopen Island, the southernmost
island of Svalbard, Norway, polar bears do not den when the sea ice
freezes too late (Derocher et al. 2004, p. 166). Fischbach et al.
(2007, p. 1,402) concluded that terrestrial denning is restricted by
greater open-water fetch and Bergen et al. (2007, p. 5) predicted an
increasing trend during the 21st century in the distances between the
summer sea-ice habitat and terrestrial denning habitat in northeast
Alaska. Historically polar bears from the Chukchi-Bering Seas
population have not had access to denning habitat in western Alaska and
thus have selected terrestrial denning sites on Wrangel Island and the
Chukotka Peninsula when the sea ice is at its minimum extent in the
fall. We assume that the energetic demands placed on pregnant polar
bears having to swim great distances from summer foraging habitats to
suitable terrestrial denning habitats in the fall precludes denning in
western Alaska. While we recognize that the coastal areas from Barrow
southward to the Seward Peninsula have characteristics that appear to
allow for the formation of denning habitat, radio-telemetry data
indicate that, historically, few bears have denned there. Therefore, we
determined that coastal mainland and barrier island terrestrial habitat
in western Alaska from Barrow southward to the Seward Peninsula is not
accessible to pregnant polar bears from the Chukchi-Bering Seas
population in the fall, whereas terrestrial habitats in northern Alaska
have been historically, and currently are, available to pregnant polar
bears from the southern Beaufort Sea population for denning.
Barrier Island Habitat Criteria
Barrier islands range from small sandy islands just above sea level
to larger tundra-covered islands that can support polar bear dens. The
distance between the barrier islands and the mainland can vary from 100
m to 50 km (328 ft (ft) to 31 mi). Although less dynamic than sea-ice
habitat, barrier islands are constantly shifting due to erosion and
deposition from wave action during storms, ice scouring, currents, and
winds. The location of the barrier islands generally parallels the
mainland coast of Alaska. However, the barrier islands are not evenly
distributed along the coast. They often occur in relatively discrete
island groups such as Jones Islands between Olitkok Point and Prudhoe
Bay or the Plover Islands east of Point Barrow. Polar bears use barrier
islands as migration corridors and move freely between the islands by
swimming or walking on the ice or shallow sand bars. Since they also
use barrier islands to avoid human disturbance, we have included the
ice, marine waters, and terrestrial habitat within 1.6 km (1 mi) of the
mean high tide line of the barrier islands as part of the barrier
island habitat (no-disturbance zone).
We included spits of land in the barrier island habitat category.
Spits are attached to the mainland but extend out into the ocean and
often are an extension of the barrier islands themselves. These spits
were included because they have the same characteristics of the main
barrier islands with which they are associated.
Final Critical Habitat Designation
We are designating three critical habitat units for polar bear
populations in the United States. You can view detailed, colored maps
of areas designated as critical habitat in this final rule at http://
alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can
obtain hard copies of maps by contacting the Marine Mammals Management
Office (see FOR FURTHER INFORMATION CONTACT).
The critical habitat units we describe below constitute our current
assessment, based on the best available science, of areas that meet the
definition of critical habitat for polar bears in the United States.
Table 1 shows the occupied units. The three units we are designating as
critical habitat are: (1) Sea-ice Habitat; (2) Terrestrial Denning
Habitat; and (3) Barrier Island Habitat.
[[Page 76121]]
Table 1--Occupancy of Designated Critical Habitat Units by Polar Bears
----------------------------------------------------------------------------------------------------------------
State/federal/
Estimated size native
Unit Occupied at time of Currently occupied of area in km ownership
listing \2\ (mi \2\) ratio
(percent) \2\
----------------------------------------------------------------------------------------------------------------
(1) Sea-ice Habitat................. Yes................. Yes................. 464,924 8/92/0
(179,508)
(2) Terrestrial Denning Habitat..... Yes................. Yes................. 14,652 20/74/6
(5,657)
(3) Barrier Island Habitat.......... Yes................. Yes................. 10,576 64/18/18
(4,083)
---------------------------------------------------------------------------
Total........................... .................... .................... 484,734 \1\ 9/90/1
(187,157) \1\
----------------------------------------------------------------------------------------------------------------
\1\ The total acreage reported is less than the sum of the three units because Unit 3 slightly overlaps Units 1
and 2.
\2\ State-selected and Native-selected lands are considered Federal lands. State and Native-selected lands are
those lands that have been selected but not yet conveyed from the Federal Government.
Below, we present brief descriptions of all critical habitat units,
and reasons why they meet the definition of critical habitat and are
included in this final rule. Calculations of sea-ice habitat are from
GIS data layers of hydrographic survey data compiled by the National
Oceanic and Atmospheric Administration (NOAA), the U.S. Geological
Survey, and the U.S. Fish and Wildlife Service.
With regard to ownership of the marine area covered by the sea-ice
habitat, the waters of the State of Alaska extend seaward from the mean
high tide line for 5.6 nautical-kilometers (3 nautical-miles (nm)) and
have been mapped by NOAA (http://www.nauticalcharts.noaa.gov/csdl/
mbound.htm). Federal waters extend from the 5.6 nautical-km (3 nm)
State boundary out to the U.S. 370.7 nautical-km (200 nm) Exclusive
Economic Zone (EEZ) (Table 2), and include the territorial waters of
the United States (a subset of the EEZ, which extends from the State
boundary to 22.2 nautical-km (12 nm) out).
Table 2--Ownership Status of Critical Habitat Units for Polar Bears in the United States
----------------------------------------------------------------------------------------------------------------
Alaska
Area Federal \1\ State Private Native
(percent) (percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
(1) Sea-ice Habitat......................................... 92.1 7.9 0.0 0.0
(2) Terrestrial Denning Habitat............................. 74.0 20.0 0.0 6.0
(3) Barrier Island Habitat.................................. 17.6 64.3 0.0 18.1
---------------------------------------------------
Total \2\............................................... 91.0 8.2 0.0 0.58
----------------------------------------------------------------------------------------------------------------
\1\ State-selected and Native-selected lands are considered Federal lands.
\2\ The percentages do not add up to 100 percent due the slight overlap between Units 3 and Units 1 and 2.
Unit 1: Sea-Ice Habitat
Unit 1 consists of approximately 464,924 km \2\ (179,508 mi \2\) of
the sea-ice habitat ranging from the mean high tide line to the 300-m
(984.2-ft) depth contour. Because we are limited by 50 CFR 424.12(h) to
designating critical habitat only on lands and waters under U.S.
jurisdiction, Unit 1 does not extend beyond the U.S. 370.7 nautical-km
(200 nm) EEZ to the north, the International Date Line to the west, or
the United States-Canada border to the east. To delineate the southern
boundary, we used the southern extent of the Chukchi-Bering Seas
population as determined by telemetry data (Garner et al. 1990, p.
223), because the 300-m (984.2-ft) depth contour extends beyond the
southern extent of the polar bear population. The vast majority (92
percent) of Unit 1 is located within Federal waters.
Unit 1 contains PCE number 1, which is required for feeding,
breeding, denning, and movements that are essential for the
conservation of polar bear populations in the United States. Special
management considerations and protection may be needed to minimize the
risk of crude oil spills associated with oil and gas development and
production, oil and gas tankers, and the risks associated with
commercial shipping within this region and along the Northern Sea
Route.
Unit 2: Terrestrial Denning Habitat
Unit 2 consists of an estimated 14,652 km\2\ (5,657 mi\2\) of land,
located along the northern coast of Alaska, with the appropriate
denning macrohabitat and microhabitat characteristics (Durner et al.
2001, p. 118), as described under ``Terrestrial Denning Habitat
Criteria'' above. The area designated as critical habitat contains
approximately 95 percent of the known historical den sites from the
southern Beaufort Sea population (Durner et al. 2009b, p. 3). The
inland extent of denning distinctly varied between two longitudinal
zones, with 95 percent of the polar bear dens between the Kavik River
and the United States-Canada border occurring within 32 km (20 mi) of
the mainland coast, and 95 percent of the dens between the Kavik River
and Barrow occurring within 8 km (5 mi) of the mainland coast. We did
not identify denning habitat for the Chukchi-Bering Seas population in
western Alaska because coastal areas in western Alaska do not contain
the ``access via sea-ice'' component of the terrestrial denning habitat
PCE. Historically most of these polar bears den on Wrangel Island and
Chukotka Peninsula, Russia. Typically polar bears follow the northerly
retreat of the sea ice and are precluded from denning on the western
coast of Alaska due to extreme open-water fetch and
[[Page 76122]]
late ice freeze-up. Increases in the length of the open-water season
along with declines in the sea ice extent will likely exacerbate this
phenomenon.
Twenty percent, 74 percent, and 6 percent of Unit 2 is located
within State of Alaska land, Federal lands, and Native-owned lands,
respectively. In addition, 53.3 percent of the land included within
Unit 2 occurs within the boundaries of the Arctic National Wildlife
Refuge.
Unit 2 contains the necessary topographic, macrohabitat, and
microhabitat features identified in PCE 2 that are essential for the
conservation of polar bears in the United States. Special management
considerations and protection may be needed to minimize the risk of
human disturbances and crude oil spills associated with oil and gas
development and production, and the risk associated with commercial
shipping.
Unit 3: Barrier Island Habitat
Unit 3 consists of an estimated 10,576 km\2\ (4,083 mi\2\) of
barrier island habitat. Barrier island habitat includes the barrier
islands themselves and associated spits, and the water, ice, and any
other terrestrial habitat within 1.6 km (1 mi) of the islands.
Approximately sixty-four percent of Unit 3 consists of State of Alaska
owned land and jurisdictional waters; 18.1 percent consists of Alaska
Native owned land, and 17.6 percent consists of Federal Government
owned land.
Unit 3 contains PCE number 3, which is essential for the
conservation of polar bear populations in the United States. Coastal
barrier islands and spits off the Alaska coast provide areas free from
human disturbance and are important for denning, resting, and movements
along the coast to access maternal den and optimal feeding habitat.
Special management considerations and protection may be needed to
minimize the risk of human disturbances, shipping, and crude oil spills
associated with oil and gas development and production, oil and gas
tankers, and other marine vessels.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any ``action'' within the meaning of the
regulations (50 CFR 402.02) that the agency authorizes, funds, or
carries out is not likely to destroy or adversely modify designated
critical habitat. In addition, section 7(a)(4) of the Act requires
Federal agencies to confer with the Service on any agency action that
may result in destruction or adverse modification of proposed critical
habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
designated critical habitat. Under the statutory provisions of the Act,
we determine destruction or adverse modification on the basis of
whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain the
current ability for the PCEs to be functionally established) to serve
its intended conservation role for the species.
If a Federal action may affect a species listed under the Act or
its designated critical habitat, the responsible Federal agency (action
agency) must enter into consultation with the Secretary of the
Interior, who is generally responsible for terrestrial species
(consulting agency). The Secretary has delegated his responsibilities
to the Service in the case of Interior. The Secretary of the Interior
has jurisdiction over the polar bear (50 CFR 402.01(b)).
Examples of actions that are subject to the section 7 consultation
process are actions on State, Tribal, local, or private lands that
require a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from the Service under section 10 of the Act) or that
involve some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat, and actions on State, Tribal, local, or
private lands that are not federally funded or authorized, do not
require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of either:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
also variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or have subsequently designated critical habitat
that may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Following the listing of the polar bear as a threatened species on
May 15, 2008, the Service conducted an intra-Service consultation under
section 7(a)(2) of the Act to ensure that the issuance of Incidental
Take Regulations under the MMPA is not likely to jeopardize the
continued existence of the polar bear. The Service issued its
Programmatic Biological Opinion For Polar Bears (Ursus maritimus) On
Chukchi Sea Incidental Take Regulations on June 3, 2008, concluding
that regulations under
[[Page 76123]]
the MMPA will not appreciably reduce the likelihood of survival and
recovery of the polar bear, and therefore are not likely to jeopardize
the species' continued existence. On June 23, 2008, the Service issued
its Programmatic Biological Opinion For Polar Bears On the Beaufort Sea
incidental take regulations, similarly concluding that regulations
under the MMPA will not appreciably reduce the likelihood of survival
and recovery of the polar bear, and therefore are not likely to
jeopardize the continued existence of the polar bear.
In issuing these opinions, the Service provided notice that re-
initiation of formal consultation is required where discretionary
Federal agency involvement or control over the action has been retained
(or is authorized by law) and if, among other things, a new species is
listed or critical habitat is designated that may be affected by the
action. Thus, designation of critical habitat for the polar bear would
require the Service to re-initiate consultation on these MMPA
incidental take regulations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
PCEs to an extent that appreciably reduces the conservation value of
critical habitat for polar bear populations in the United States.
Section 4(b)(8) of the Act requires us to summarize the data relied
upon in developing this rule and how the data relate to the rule. In
addition, the summary must, to the maximum extent practicable, include
a brief description and evaluation of activities involving a Federal
action that may destroy or adversely modify such habitat, or that may
be affected by such designation.
Examples of activities that, when authorized, funded, or carried
out, or by a Federal agency, may affect critical habitat and therefore
should result in consultation for the southern Beaufort Sea and the
Chukchi-Bering Seas polar bear populations in the United States
include, but are not limited to:
(1) Actions that would reduce the availability or accessibility of
polar bear prey species. Such activities could include, but are not
limited to, human disturbance when polar bears are foraging at the ice
edge, and displacement of polar bears from optimal sea-ice habitat,
particularly during critical feeding periods in the fall or following
den emergence in the spring. Activities that reduce availability or
accessibility of prey may cause polar bears to forage outside of
optimal foraging areas, thus potentially reducing their fitness.
(2) Actions that would directly impact the PCEs. Such activities
could include, but are not limited to: Seismic exploration;
construction of ice and gravel roads; construction of drilling pads;
development of new onshore and offshore production sites; use of
helicopters, fixed wing aircraft, boats, snow machines, and vehicles by
industry to access sites such as work sites; and increased year-round
shipping.
(3) Actions that would render critical habitat areas unsuitable for
use by polar bears. Such activities could include, but are not limited
to, human disturbance or pollution from a variety of sources, including
discharges from oil and gas drilling and production, or spills of crude
oil, fuels, or other hazardous materials from vessels, primarily in
harbors or other ports. While it is illegal to discharge fuel or other
hazardous materials, it happens more often in ports and harbors than in
other areas. Additionally, increased vessel traffic and associated ice-
breaker activity could negatively affect optimal sea-ice habitat for
polar bears. These activities could result in direct mortality or
displace polar bears from, or adversely affect, essential sea-ice and
denning habitat and habitat free from disturbance (such as barrier
islands). Parturient polar bears must be free from disturbance during
critical feeding periods prior to denning in the fall and following den
emergence in the spring. Disturbance during the critical denning
periods or destruction of the denning habitat could result in lower cub
survival and recruitment into the population. Declines in recruitment
and survival of polar bears, a K-selected species (long-lived species
with low reproductive rates), could result in population declines and
slow recovery, and could potentially affect the perpetuation of polar
bears in the United States.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a
et seq.) required each military installation that includes land and
water suitable for the conservation and management of natural resources
to complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consulted with the military on the development and
implementation of INRMPs for installations with federally listed
species. The INRMPs developed by military installations located within
the proposed critical habitat areas were analyzed for exemption under
the authority of section 4(a)(3)(B) of the Act. Cooperation between the
DOD installations and the Service on specific conservation measures
relative to polar bears is ongoing.
Approved Integrated Natural Resources Management Plans
We examined the INRMPs for the military installations to determine
whether they provide benefits to polar bears. The USAF submitted two
INRMPs for review, one for the Inactive Radar Sites and one for the
Active Radar Sites. Most of the radar sites that
[[Page 76124]]
overlap with the range of polar bears are located in relatively remote
locations along the north and west coast of Alaska. These sites occupy
relatively small areas and are maintained by a small staff of up to 20
individuals. The USAF lands covered by these INRMPS that overlap with
the polar bear critical habitat designation are less than 1 percent of
the total polar bear critical habitat designation.
The INRMP for the Inactive Radar Sites, Integrated Natural
Resources Management Plan, 2009 Revision--2009 Wetlands & Polar Bear
Update, Inactive Sites, Alaska 611th Air Support Group, includes 17
sites in Alaska, of which only Point Lay (former LRRS), Point Lonely
(former SRRS), and the West Nome Tank Farm (former LRRS) overlap with
the range of polar bears in Alaska. Point Lonely is the only Inactive
Site that overlaps with the designated polar bear critical habitat. The
Radar Site at Point Lonely is currently undergoing environmental
restoration, and once the remedial actions are completed there are
long-term plans (2009-2029) to continue monitoring this site.
The INRMP for the Active Radar Sites, Integrated Natural Resources
Management Plan, 2007 Revision--2009 Update, Annual Review, Alaska
Radar System, Alaska Short and Long Range Radar Sites, Alaska 611th Air
Support Group, includes 16 radar sites in Alaska, of which 9,
Wainwright Short Range Radar Site (SRRS), Point Barrow Long Range Radar
Site (LRRS), Oliktok LRRS, Bullen Point SRRS, Barter Island LRRS, Cape
Lisburne LRRS, Kotzebue LRRS, Tin City LRRS, and Cape Romanzof LRRS,
overlap with the range of polar bears in Alaska. Only Point Barrow
LRRS, Oliktok LRRS, Bullen Point LRRS, and Barter Island LRRS Radar
Sites overlap with the polar bear critical habitat designation.
The INRMP for the Inactive and Active Sites includes several
provisions to protect polar bears. The Base Operational Support (BOS)
contractor, working for the Air Force, has requested a Letter of
Authorization (LOA) under the MMPA incidental take regulations to allow
for the intentional (non-lethal) take of polar bears on a yearly basis.
This authorization is related to harassment activities only. This year
ARCTEC, the BOS support contractor, requested an LOA for intentional
take of polar bears at the USAF which expires December 31, 2010. The
ability to haze problem bears from the radar sites helps protect polar
bears, because polar bears learn to associate humans with negative
consequences.
During the summer of 2009, the USAF developed hazing guidelines to
discourage individuals employed by them from prematurely killing a
polar bear. Because hunting is not permitted on USAF Short Range and
Long Range Radar Sites and because of the additional protections for
polar bears under the Act, USAF policy states that if someone shoots a
polar bear and cannot present overwhelming evidence for the imminent
necessity of lethal take, then that person will likely be liable for
civil and criminal prosecution.
Deterring bears from areas of human activity also minimizes the
chances of negative human-bear interactions. To meet this goal, the
USAF incinerates all food waste and installs fences under buildings on
stilts to reduce access to areas that might be attractive denning
sites. The USAF has adopted the recommendations of the Polar Bear
Interaction Management Plan, a plan that was developed in cooperation
with the Service. The USAF uses the Polar Bear Interaction Management
Plan as an educational tool to inform personnel and visitors of the
appropriate behavior around bears (including deterrence methods, polar
bear safety protocols, and appropriate food management). In addition,
the USAF has stated that it ``intends to maintain compliance with the
requirements of applicable laws as well as continuing its
responsibilities for stewardship of the natural resources found on
lands under our control.'' We have also considered the current
obligation of the USAF to consult with the Service on activities
regardless of the designation of critical habitat in this final rule,
minimal delays and costs associated with consultation relative to this
polar bear critical habitat designation, and the educational benefits
afforded by the designation of polar bear critical habitat in Alaska.
Conclusion
Habitat features essential to polar bear conservation are present
on USAF lands, and each affected installation has an approved INRMP.
Activities occurring on these installations are being conducted in a
manner that provides a benefit to polar bear.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act we have determined that the USAF lands that
overlap with the designated polar bear critical habitat at Point Lonely
(former SRRS), Point Barrow LRRS, Oliktok LRRS, Bullen Point LRRS, and
Barter Island LRRS are subject to the approved INRMPs and that
conservation efforts identified in the INRMPs provide a benefit to
polar bears occurring in habitats within or adjacent to these
facilities. Therefore, lands within these installations are exempt from
critical habitat designation under section 4(a)(3) of the Act. As a
result, we are not including a total of approximately 1,720 ha (4,250
ac) of habitat in these DOD installations in this final critical
habitat designation because of these exemptions.
Exclusions Under Section 4(b)(2) of the Act
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area 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
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, it is clear from the plain language, meaning, and
context of the Act itself, as well as the legislative history, that
Congress intended for the Secretary to have broad discretion regarding
which factor(s) to use and how much weight to give to any factor.
When considering what benefits an area may receive from being
included in the critical habitat designation, we consider the
additional regulatory benefits under section 7 of the Act that the area
would receive from the protection against adverse modification or
destruction resulting from actions with a Federal nexus, the
educational benefits of mapping essential habitat for recovery of the
listed species, and any benefits that may result from a designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, the continuation, strengthening, or encouragement of
partnerships, or implementation of a management plan that provides
equal or more conservation than a critical habitat designation would
provide.
After evaluating the benefits of inclusion and the benefits of
exclusion, we carefully evaluate the two sides to determine whether the
benefits of exclusion outweigh those of inclusion. If they do, we then
determine whether exclusion of the particular area would
[[Page 76125]]
result in extinction of the species. If exclusion of an area from
critical habitat will result in extinction, then it will not be
excluded from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we received, we evaluated
whether certain lands in the proposed critical habitat were appropriate
for exclusion from this final designation. We considered the areas
discussed below for exclusion under section 4(b)(2) of the Act, and
present our detailed analysis below. For those areas in which the
Secretary has exerted his discretion to exclude, we believe that:
(1) Their value for conservation of the polar bear and its habitat
will be preserved for the foreseeable future by existing protective
actions, or
(2) The benefits of excluding the particular area outweigh the
benefits of including it, based on a consideration of the ``other
relevant impact'' provision of section 4(b)(2) of the Act, and the
area's exclusion would not result in the extinction of polar bear.
A total of 5,698 ha (14,080 ac) of terrestrial coastal denning
habitat (less than one percent of the area proposed as critical
habitat) have been excluded from designation as critical habitat. No
Sea-ice Habitat or Barrier Island Habitat was excluded. Maps showing
excluded Terrestrial Denning Habitats are available upon request by
contacting the Marine Mammals Management Office; see the ADDRESSES
section.
In the following sections, we address a number of general issues
that are relevant to our analysis under section 4(b)(2) of the Act. In
addition, we conducted an economic analysis of the impacts of the
proposed critical habitat designation and related factors, which we
made available for public review and comment on May 5, 2010 (75 FR
24545). Based on public comment on that document, the proposed
designation itself, and the information in the final economic analysis,
the Secretary may exclude from critical habitat additional areas beyond
those identified in this assessment under the provisions of section
4(b)(2) of the Act. This is also addressed in our implementing
regulations at 50 CFR 424.19.
Benefits of Inclusion
Educational Benefits
The identification of those areas that contain the features
essential to the conservation of the species, or are areas that are
otherwise essential for the conservation of the species if outside the
geographical area occupied by the species at the time of listing, is a
benefit resulting from the designation. Designation of critical habitat
serves to educate landowners, State and local governments, and the
public regarding the potential conservation value of an area. Because
the critical habitat process includes multiple public comment periods,
opportunities for public hearings, and announcements through local
venues, including radio and other news sources, the designation of
critical habitat provides numerous occasions for public education and
involvement. Through these outreach opportunities, landowners, State
agencies, and local governments can become more aware of the plight of
listed species and conservation actions needed to aid in species
recovery. This helps focus and promote conservation efforts by other
parties by clearly delineating areas of high value for polar bears in
Alaska, and may assist land owners and managers in developing
conservation management plans for identified areas, as well as for any
other identified occupied habitat or suitable habitat that may not be
included in the areas the Service identifies as meeting the definition
of critical habitat. Including lands in critical habitat also would
inform State agencies and local governments about areas that could be
conserved under State laws or local ordinances.
Regulatory Benefit
The regulatory benefits of critical habitat designation are found
in section 7(a)(2) of the Act. As discussed above, section 7 requires
Federal agencies to ensure that any ``actions'' within the meaning of
the regulations (50 CFR 402.02) that the agency authorizes, funds, or
carries out are not likely to destroy or adversely modify designated
critical habitat. To that end, Federal agencies must consult with the
Service on actions that may affect critical habitat. In addition,
Federal agencies must consult with the Service on actions that may
affect a listed species and the agency must refrain from undertaking
actions that are likely to jeopardize the continued existence of such
species. The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the potential difference in outcomes of these two analyses represents
the regulatory benefit of critical habitat designation. For some
species, and in some locations, the outcome of these analyses will be
similar, because effects to critical habitat often also will result in
effects to the species. However, the regulatory standards are
different, as the jeopardy analysis investigates the action's impact to
survival and recovery of the species, whereas the destruction or
adverse modification analysis investigates the action's effects to the
designated critical habitat's contribution to conservation. This could,
in some instances, lead to different results and different regulatory
requirements. Thus, critical habitat designations may in some cases
provide greater benefits to the recovery of a species than would
listing alone.
There are two limitations to the regulatory effect of critical
habitat designation. First, consultation for potential impacts to
critical habitat is required only where there is a Federal nexus (i.e.,
an action authorized, funded, or carried out by any Federal agency). If
there is no Federal nexus, then the critical habitat designation of
private lands, by itself, does not restrict actions by private parties
that may destroy or adversely modify critical habitat, as long as the
habitat modification or degradation does not actually kill or injure a
listed wildlife species. Because the Act defines ``take'' as meaning to
``harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in such conduct'' (16 U.S.C.
1532(19)), and the regulations define ``harm'' to include ``significant
habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering'' 50 CFR 17.3), habitat
modification or degradation on private lands that actually kills or
injures a listed wildlife species is prohibited under the Act.
Second, the designation only limits destruction or adverse
modification of that habitat. By its nature, the prohibition on adverse
modification of critical habitat is designed to ensure that the
conservation role and function of those areas that contain the physical
and biological features essential to the conservation of the species,
or of unoccupied areas that are essential for the conservation of the
species, are not appreciably reduced. Critical habitat designation
alone does not require specific steps toward recovery of the species.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when the
Service concurs in writing that the proposed Federal action is not
likely to adversely affect the species or critical habitat. However, if
we determine through informal consultation that adverse impacts are
likely to occur, then formal consultation is initiated. Formal
consultation concludes with a biological
[[Page 76126]]
opinion issued by the Service on whether the proposed Federal action is
likely to jeopardize the continued existence of listed species or
result in destruction or adverse modification of designated critical
habitat.
A biological opinion that concludes in a determination of no
destruction or adverse modification of critical habitat may recommend
additional conservation measures to minimize adverse effects to the
PCEs, but such measures would be discretionary on the part of the
Federal agency. A biological opinion that concludes in a determination
of no destruction or adverse modification would not include the
implementation of any reasonable and prudent alternatives, as these are
provided for the proposed Federal action only when our biological
opinion results in a destruction or adverse modification conclusion.
As stated above, the designation of critical habitat does not
require that any management or recovery actions take place on the lands
included in the designation. Even in cases where consultation is
initiated under section 7(a)(2) of the Act, the end result of
consultation is to avoid jeopardy to the species and/or destruction or
adverse modification of its critical habitat, but not necessarily to
manage critical habitat or institute recovery actions on critical
habitat. Conversely, voluntary conservation efforts implemented through
management plans institute proactive actions over the lands they
encompass and are put in place to remove or reduce known threats to a
species or its habitat, therefore implementing recovery actions. We
believe that in many instances the regulatory benefit of critical
habitat is minimal when compared to the conservation benefit that can
be achieved through HCPs and other habitat management plans. The
conservation achieved through such plans typically is greater than what
we would achieve through site-by-site or project-by-project section 7
consultations involving consideration of critical habitat. Management
plans commit resources to implement long-term management and protection
for at least one and possibly other listed or sensitive species.
Section 7 consultations only commit Federal agencies to preventing
destruction or adverse modification caused by a particular project, and
they are not committed to provide conservation or long-term benefits to
areas not affected by the proposed action. Thus the implementation of
an HCP or a voluntary conservation or management plan that incorporates
enhancement or recovery as the management standard often may provide
much more benefit than a consultation for critical habitat designation.
Economic Analysis
In compliance with section 4(b)(2) of the Act, we conducted an
economic analysis to estimate the potential economic effect of the
designation. The DEA was made available for public review and comment
from May 5, 2010, to July 6, 2010 (75 FR 24545). Substantive comments
and information received on the DEA are summarized above in the Summary
of Comments and Recommendations section and are incorporated into the
final analysis, as appropriate. Taking the public comments and any
relevant new information into consideration, the Service completed a
final economic analysis (FEA) (dated October 14, 2010).
The primary purpose of the FEA is to identify and analyze the
potential economic impacts associated with the designation of critical
habitat for the polar bear in the United States. The information is
intended to assist the Secretary of the U.S. Department of the Interior
(DOI) in determining whether the benefits of excluding particular areas
from the designation outweigh the benefits of including those areas in
the designation. The economic analysis considers the economic
efficiency effects that may result from the designation. In the case of
habitat conservation, efficiency effects generally reflect the
``opportunity costs'' associated with the commitment of resources to
comply with habitat protection measures (such as lost economic
opportunities associated with restrictions on land use). It also
addresses how potential economic impacts are likely to be distributed,
including an assessment of any local or regional impacts of habitat
conservation and the potential effects of conservation activities on
government agencies, private businesses, and individuals. The economic
analysis measures any lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. This information can be used by the Secretary to assess
whether the effects of the designation might unduly burden a particular
group or economic sector. Finally, the economic analysis looks
retrospectively at costs that have been incurred since the date we
listed the polar bear as threatened (May 15, 2008, 73 FR 28212), and
considers those costs that may occur in the years following the
designation of critical habitat, with the timeframes for this analysis
varying by activity.
The economic analysis focuses on the direct and indirect costs of
the critical habitat designation. However, economic impacts to land use
activities can exist in the absence of critical habitat. These impacts
may result from, for example, local zoning laws, State and natural
resource laws, and enforceable management plans and best management
practices applied by other State and Federal agencies. Economic impacts
that result from these types of protections are not included in the
analysis as they are considered to be part of the regulatory and policy
baseline.
The economic analysis examines activities taking place both within
and adjacent to the critical habitat designation. It estimates impacts
based on activities that are ``reasonably foreseeable'' including, but
not limited to, activities that are currently authorized, permitted, or
funded, or for which proposed plans are currently available to the
public. Accordingly, the analysis bases its estimates on activities
that are likely to occur within a 30-year timeframe, from when the
proposed rule became available to the public (74 FR 56058, October 29,
2009). The 30-year timeframe was chosen for the analysis because, as
the time horizon for an economic analysis is expanded, the assumptions
on which the projected number of projects and cost impacts associated
with those projects are based become increasingly speculative.
The primary potential incremental economic impacts attributed to
the critical habitat designation are expected to be related to oil and
gas exploration, development, and production (low-end scenario 29
percent; high-end scenario 60 percent); construction and development
activities (low-end scenario 63 percent; high-end scenario 35 percent);
and consultations associated with the U.S. Coast Guard and USAF (8.4
percent). The economic impacts of critical habitat designation on
commercial shipping and marine transportation are highly speculative
and so were not estimated. However, the impact of these activities on
polar bear critical habitat was expected to be limited because polar
bears occur on the sea ice in the winter and the marine shipping and
transportation occurs primarily during the summer, and because oil
spill planning and response already is considered under the Oil
Pollution Act of 1990. The FEA estimates total potential incremental
economic impacts in the areas proposed
[[Page 76127]]
as critical habitat over the next 30 years to range from $677,000
($54,500 annualized) to $1,210,000 ($97,500 annualized) in present
value terms using a 7 percent discount rate. While oil and gas
activities are the most prevalent economic activities in the region,
fewer consultations are forecast to occur for oil and gas activities
than for other construction and development projects. This is because
oil and gas activities are managed according to area-specific plans and
regulations (such as the ITRs). Thus, a single consultation occurs for
review of a plan or program covering multiple projects. Although
administrative costs of programmatic consultations for oil and gas
activities are expected to be greater than consultations for other
types of activities, the greater number of forecast consultations for
other activities results in greater associated impacts in the low-end
scenario. In the high-end scenario, the analysis assumes a third-party
administrative cost of $37,500 per formal or programmatic consultation.
This cost estimate relies on information provided by stakeholders and
reflects the complex nature of consultations for oil and gas projects
in Alaska. According to the high-end scenario, oil and gas activities
experience the greatest incremental impacts of the designation.
Approximately 41 to 70 percent, depending on the scenario, of the
forecasted incremental impacts occur in Units 2 and 3, in spite of the
fact that Units 2 and 3 account for only about 5 percent of the total
area designated as critical habitat. Forecasted activities for the sea
ice habitat (Unit 1) generally are covered by large-scale plans and
regulations (e.g., ITRs) and therefore are subject to less frequent
consultation.
We have considered and evaluated the potential economic impact of
the critical habitat designation under 4(b)(2) of the Act, as
identified in the FEA. Based on this evaluation, we believe the
economic impacts associated with the designation here are neither
significant nor will result in a disproportionate effect due to the
manner in which polar bear conservation measures have been or are are
expected to be through the MMPA and Act. The final economic analysis is
available at http://www.regulations.gov or upon request from the Marine
Mammals Management Office (see ADDRESSES).
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
impacts to national security that may exist from the designation of
critical habitat. Section 4(b)(2) allows the Secretary to exclude areas
from critical habitat for reasons of national security if the Secretary
determines the benefits of such an exclusion exceed the benefits of
designating the area as critical habitat. However, this conclusion
cannot occur if it will result in the extinction of the species
concerned.
The USAF request for exclusion of the DOD lands for Active and
Inactive Radar Sites in Alaska was based in part on the critical role
of these sites as part of the Alaska Radar System in support of the
Alaska NORAD Region and Homeland Defense to detect, track, report, and
respond to potentially hostile aircraft approaching our borders and
entering our airspace. Only one Inactive Radar Site, Point Lonely
(former SRRS), and four Active Radar Sites, Point Barrow LRRS, Oliktok
LRRS, Bullen Point LRRS, and Barter Island LRRS, overlap with the polar
bear critical habitat designation. The Secretary has exempted these
five Radar Sites from the polar bear critical habitat designation under
section 4(a)(3) of the Act (see Application of Section 4(a)(3) of the
Act above), and there are no additional DOD lands operated by the USAF
that would be considered for exclusion under 4(b)(2) of the Act.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether the
landowners have developed any HCPs for the area, or whether there are
conservation partnerships that would be encouraged by designation of,
or exclusion from, critical habitat. In addition, we look at any tribal
issues, and consider the government-to-government relationship of the
United States with tribal entities. We also consider any social impacts
that might occur because of the designation. There are no HCPs in
Alaska for the polar bear or any other listed species; therefore, we
have not excluded any lands on the basis of being part of an HCP.
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951); Executive Order 13175; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2), we coordinate with federally recognized Tribes on a
government-to-government basis. Further, Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' (1997) states that (1) critical
habitat shall not be designated in areas that may impact tribal trust
resources, may impact tribally-owned fee lands, or are used to exercise
tribal rights unless it is determined essential to conserve a listed
species; and (2) in designating critical habitat, the Service shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands. While this Order does not apply to the State of Alaska, we
recognize our responsibility to inform affected Native Corporations,
and regional and local Native governments of our proposed critical
habitat designation. During the open comment periods, we coordinated
extensively with Native communities; sought traditional Native
knowledge; and contacted numerous individuals in the rural communities.
We also held public meetings that were attended by Alaska Natives. In
addition, in 2001, the DOI issued a ``Policy on Government-to-
Government Relations with Alaska Native Tribes'' to clarify Secretarial
Order 3206 in relation to the consultative process for Alaska Natives.
Habitat on Alaska Native-owned lands was determined to be essential
to the conservation of polar bears due to its location within the
matrix of habitat available for the species. Alaska Native lands
overlap primarily with the Barrier Island Habitat (18 percent) and the
Terrestrial Denning Habitat (6 percent). The coastal barrier islands
provide areas free from disturbance for resting, denning, and access to
maternal den sites or optimal feeding areas. Polar bears frequently use
the coastal bluffs and river bluffs for denning and move along the
coast to search for maternal den sites and preferred feeding areas.
Through the Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3225 of January 19, 2001 (Endangered Species Act and Subsistence Uses
in Alaska (Supplement to Secretarial Order 3206)), Department of the
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), and the Native American Policy of the U.S. Fish and
Wildlife Service, June 28, 1994, we acknowledge our responsibilities to
work directly with
[[Page 76128]]
Alaska Natives in developing programs for healthy ecosystems, to seek
their full and meaningful participation in evaluating and addressing
conservation concerns for listed species, to remain sensitive to Indian
culture, and to make information available to Tribes.
We contacted all Alaska Native communities potentially affected by
the proposed designation and met with the Alaska Nanuuq (polar bear)
Commission and the North Slope Borough to discuss their ongoing or
future management strategies for polar bear. We subsequently received
comments describing ongoing tribal management concerns, and plans and
conservation efforts with respect to polar bears. Barrow and Kaktovik
are the only two Alaska Native communities that overlap with the
proposed critical habitat designation.
(1) Benefits of Inclusion
The primary effect of designating critical habitat is the
requirement for Federal agencies and any projects with a Federal nexus
to consult with the Service under section 7 of the Act to ensure that
actions they authorize, fund, or carry out do not destroy or adversely
modify designated critical habitat. A discussion of these regulatory
benefits was presented earlier. Additionally, the designation of
critical habitat may provide educational benefits by informing land
managers of areas that are essential to polar bears.
Educational Benefits
The identification of those areas that contain the features
essential to the conservation of the species, or are otherwise
essential for the conservation of the species if outside the
geographical area occupied by the species at the time of listing, is a
benefit resulting from the designation. Designation of critical habitat
serves to educate landowners, State and local governments, and the
public regarding the potential conservation value of an area. Because
the critical habitat process includes multiple public comment periods,
opportunities for public hearings, and announcements through local
venues, including radio and other news sources, the designation of
critical habitat provides numerous occasions for public education and
involvement. Through these outreach opportunities, land owners, State
agencies, and local governments can become more aware of the plight of
listed species and conservation actions needed to aid in species
recovery. This helps focus and promote conservation efforts by other
parties by clearly delineating areas of high value for polar bears in
Alaska, and may assist land owners and managers in developing
conservation management plans for identified areas, as well as for any
other identified occupied habitat or suitable habitat that may not be
included in the areas the Service identifies as meeting the definition
of critical habitat. Including lands in critical habitat also would
inform State agencies and local governments about areas that could be
conserved under State laws or local ordinances.
(2) Benefits of Exclusion
For the past 30 years or more, the Service has been working
actively with the North Slope Borough and Alaska Native communities on
issues that deal with subsistence use and polar bear conservation.
Examples include:
The Native to Native Inuvialuit (Canada)/Inupiat (Alaska)
Agreement (I/I Agreement) for management and conservation of the
southern Beaufort Sea population;
Establishment of the Alaska Nanuuq (polar bear) Commission
under the MMPA, which represents Alaska Native interests on issues
concerning subsistence use and polar bear conservation;
Development of the U.S.-Russia Bilateral Agreement for the
Conservation of the Chukotkan Alaska Polar Bear Population, which
includes Native and Government representatives from both countries;
Development of bear-human interaction plans for the North
Slope Borough communities;
Development of polar bear viewing guidelines for Kaktovik;
and
Development of polar bear deterrence guidelines and
training.
In addition, Native communities, which consist of relatively dense
core areas of human habitation in remote locations along the northern
and western coasts of Alaska, generally do not have the necessary PCEs
for polar bear denning, resting, and feeding. Children and adults can
be active during all the daylight hours in the summer and during the
periods of complete darkness in the winter. Polar bears are actively
deterred from the Native communities for both human and bear safety.
Typically polar bears that remain too long in these communities are
killed because of concerns for human safety. To minimize negative bear-
human interactions and intentional or unintentional disturbance by
humans, polar bears are actively deterred from denning in or near the
Native coastal communities. Polar bear interaction plans, deterrence
programs, safety guidelines, and outreach continue to be developed in
cooperation with the Native communities.
The continued cooperation with the Native communities in northern
and western Alaska is essential for the conservation of polar bears in
Alaska. Excluding the Native-owned lands for these two villages will
enhance the partnership efforts which have taken many years to develop
between the Federal government and the Native communities.
(3) Determination of Whether Benefits of Exclusion Outweigh the
Benefits of Inclusion
We find that the benefits of designating critical habitat for polar
bears on the Native-owned town sites of Barrow and Kaktovik are small
compared to the benefits of exclusion. The conservation measures being
implemented by these Native communities and organizations working on
behalf of these Native communities provide greater benefit to polar
bears and their habitat than would designating critical habitat in
these communities. The residents of these communities have subsisted
on, and lived with polar bears for thousands of years and thus
understand polar bear behavior and conservation efforts required to
protect polar bears. Both the Service and these Native communities
share the same goal of protecting polar bears for future generations to
use and enjoy. Excluding the Native-owned lands of these two villages
will enhance the partnership efforts that have taken many years to
develop between the Federal Government and the Native communities. The
benefit of sustaining current and future partnerships outweighs the
extra outreach efforts associated with critical habitat and the
additional section 7 requirements under the Act. Therefore, the
Secretary has decided to exercise his discretion under the Act to
exclude the Native communities of Barrow and Kaktovik, which are the
two formally defined Native coastal communities that overlap with the
polar bear critical habitat designation. Since the critical habitat
designation for polar bear includes other Alaska Native-owned lands or
trust resources that might be affected by costs associated with section
7 consultations on construction and development projects that have a
Federal nexus, we will continue to cooperate with Alaska Native
communities in a government-to-government relationship.
(4) Exclusion Will Not Result in Extinction of the Species
We have determined that the exclusion of the Native communities of
[[Page 76129]]
Barrow and Kaktovik from the final designation of critical habitat for
the polar bear will not result in the extinction of the species. As
previously explained, the benefits of excluding 5,698 ha (14,080 ac) of
land from critical habitat outweigh the benefits of inclusion. The area
excluded comprises an extremely small fraction of the designation (less
than one percent of the total designation and 0.38 percent of the
Terrestrial Denning Habitat Unit). While some loss of habitat for the
polar bear may occur, this habitat loss will not lead to extinction
because the proportion of area excluded compared to the overall amount
of terrestrial denning habitat is extremely small, furthermore, due to
ongoing efforts to minimize polar bear/human interactions, polar bears
are routinely hazed away from these villages. [need to elaborate here]\
With these facts, and the continued commitment from the villages to
work with us on polar bear conservation and consult with us on projects
that may adversely impact polar bears, we conclude that exclusion of
these villages will not result in extinction of this species. In
addition, the jeopardy standard of section 7 of the Act and routine
implementation of conservation measures through the section 7 process
provide assurances that the species will not go extinct as a result of
this small exclusion.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
Executive Order 12866 requires Federal agencies to submit proposed
and final significant rules to the Office of Management and Budget
(OMB) prior to publication in the Federal Register. The Executive Order
defines a rule as significant if it meets one of the following four
criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
If the rule meets criteria (1) above it is called an ``economically
significant'' rule and additional requirements apply. It has been
determined that this rule is ``significant'' but not ``economically
significant.'' It was submitted to OMB for review prior to
promulgation.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Based on our FEA, we provide
our analysis for determining whether or not the designation of critical
habitat for polar bears in Alaska will result in a significant impact
on a substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors with less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation, as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the designation of critical habitat for polar bears
in Alaska will affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities, such as oil and gas exploration and
development, and other construction and development activities.
Specifically, we identified 112 small entities that may be affected by
these activities:
Gold ore mining (5);
Support activities for oil and gas operations (13);
Support activities for mining (1);
Electric power generation (7);
Water supply and irrigation, (3);
Construction of buildings (29);
Water and sewer line construction (3);
Oil and gas pipeline and related structures construction
(5);
Highway, street, or bridge construction (3);
Specialty trade contractors (31);
Other airport operations (6);
Other support activities for air transportation (1);
Support activities for rail transportation (1);
Support activities for road transportation (2);
All other support activities for transportation (2).
In estimating the numbers of small entities potentially affected, we
considered whether the activities of these entities may entail any
Federal involvement. Critical habitat designation will not affect
activities that do not have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. Some kinds of
activities are unlikely to have any Federal involvement and so will not
be affected by the designation of critical habitat. In areas where the
species is present, Federal agencies already are required to consult
with us under section 7 of the Act on activities they authorize, fund,
or carry out that may affect the polar bear. Federal agencies also must
consult with us if their activities may affect designated critical
habitat. Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification'' Standard section).
In order to determine whether it is appropriate for our agency to
certify that this rule will not have a significant economic impact on a
substantial number of small entities, we considered in the FEA the
potential impacts resulting from implementation of conservation actions
related to the designation of critical habitat for polar bears in
Alaska for each of the 112 small entities discussed above. As described
in Appendix A of the FEA, the potential impacts are associated with:
(1) Oil and gas exploration, development, and production, and (2)
construction and development activities. The average
[[Page 76130]]
annualized incremental impacts to small entities associated with the
oil and gas exploration, development, and production ranges from $1,050
to $45,000 and for construction and development activities was $9,290,
applying a 7 percent discount rate. Third parties involved in the
former category are not likely to be small. Based on the past polar
bear consultations regarding oil and gas activities, we expect that
third party participants in consultations will be the large oil and gas
companies operating in the region, such as Shell, ExxonMobil, Conoco
Phillips, and British Petroleum. These companies exceed the 500-
employee threshold for small crude petroleum and natural gas
extraction, natural gas liquid extraction, and drilling oil and gas
well businesses, as defined by the SBA. Third parties involved in the
latter category, construction and development activities, are likely to
be small, however. Construction and development activities include wind
energy development, utility line construction, road maintenance and
construction, airport and seaport development and expansion, and mining
(not including oil and gas). Third parties involved in future section 7
consultations for construction and development projects therefore may
include local governments, residential construction companies, heavy
and civil engineering companies, specialty trade contractors, mining
companies (not including oil and gas), utility companies, developers,
and transportation companies. Exhibit A-1 of the DEA highlights that
about 85 percent of these industry businesses in the proposed critical
habitat region are small. It therefore is likely that small entities
will bear the estimated annualized incremental administrative costs of
consultation of $9,290. To put this number into context, the average
value of construction work in Alaska is about $1.9 million per
construction business (2002 U.S. Census Summary Statistics for NAICS 23
(Construction) in Alaska, accessed at http://www.census.gov/econ/
census02/data/ak/AK000.HTM). Importantly, this estimate includes all
construction businesses across the State, inclusive of but not limited
to small businesses in the North Slope. These data are not available at
the borough level. The annualized impacts estimated in the economic
analysis represent about 0.5 percent of the per business value of
construction in the State of Alaska. We therefore conclude that costs
to small entities are not anticipated to be significant. Please refer
to the FEA for a more detailed discussion of potential economic
impacts.
In summary, we have considered whether the designation will result
in a significant economic impact on a substantial number of small
entities. We have identified 112 small entities that may be impacted by
the critical habitat designation. For the above reasons and based on
currently available information, we certify that the designation will
not have a significant economic impact on a substantial number of small
business entities. Therefore, a regulatory flexibility analysis is not
required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. The vast majority (99 percent) of the
critical habitat designation falls within Federal or State of Alaska
jurisdiction. The State of Alaska does not fit the definition of
``small governmental jurisdiction.'' Waters adjacent to Native-owned
lands are still owned and managed by the State of Alaska. In most
cases, development around Native villages, or in the North Slope
Borough, occurs with funding from Federal or State sources (or both).
Therefore, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the polar bear in the United States in a takings
implications assessment. Critical habitat designation does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. The takings implications
assessment concludes that this designation of critical habitat for the
polar bear in the United States does not pose significant takings
implications for lands within or affected by the designation.
[[Page 76131]]
Federalism
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this final critical habitat designation with
appropriate State resource agencies in Alaska and Tribal governments.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
features of the habitat essential for the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
local governments in long-range planning (rather than having them wait
for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Executive Order. We have designated critical habitat in
accordance with the provisions of the Act. This final rule identifies
the essential features within the designated areas to assist the public
in understanding the habitat needs of the polar bear in the United
States, and defines the specific geographic areas designated as
critical habitat for the polar bear in the United States.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the Circuit Court of the United States for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3225 of January 19, 2001 (Endangered Species Act and Subsistence Uses
in Alaska (Supplement to Secretarial Order 3206)), Department of the
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), and the Native American Policy of the U.S. Fish and
Wildlife Service, June 28, 1994, we acknowledge our responsibilities to
work directly with Alaska Natives in developing programs for healthy
ecosystems, to seek their full and meaningful participation in
evaluating and addressing conservation concerns for listed species, to
remain sensitive to Alaskan Native culture, and to make information
available to Tribes.
Since 1997, the Service has worked closely with the Alaska Nanuuq
Commission (Commission) on polar bear management and conservation for
subsistence purposes. The Commission, established in 1994, is a
Tribally Authorized Organization created to represent the interests of
subsistence users and Alaska Native polar bear hunters when working
with the Federal Government on the conservation of polar bears in
Alaska. Not only was the Commission kept fully informed throughout the
rulemaking process for the listing of the polar bear as a threatened
species, but that organization was asked to serve as a peer reviewer of
the proposed critical habitat designation. Following publication of the
proposed critical habitat rule, the Service actively solicited comments
from Alaska Natives living within the range of the polar bear. We held
a public hearing in Barrow, Alaska, to enable Alaska Natives to provide
oral comment. We invited the 15 villages in the Commission to
participate in the hearing, and we offered the opportunity to provide
oral comment via teleconference.
For the critical habitat areas that occur within sea-ice Unit (Unit
1), we have determined that there are no Alaska Native-owned lands
occupied at the time of listing that contain the features essential for
the conservation, and no Alaska Native-owned lands essential for the
conservation of polar bears in the United States. With regard to the
areas of proposed designation of critical habitat on Alaska Native-
owned lands in Alaska, we reported to the Alaska Nanuuq Commission in
August 2009 on the process of evaluating critical habitat for polar
bears in Alaska. During this meeting, we explained what critical
habitat is and that, if designated, special management considerations
may be needed for the features determined to be essential to the
species. We noted our appreciation of their past participation and
comments in our evaluation through the listing determination, and noted
our intention to hold public hearings in Barrow and Anchorage, Alaska,
in conjunction with any proposed designation. Following the release of
the proposed critical habitat designation on October 29, 2009 (74 FR
56058), we attempted to notify all potentially affected Native
communities and local and regional governments, and we requested
comments on the proposed rule. In response to a specific request by the
North Slope Borough, we presented information on the polar bear
critical habitat on March 1, 2010, in Barrow, Alaska. At that meeting,
attendees were given the opportunity to comment on the proposal. As
noted earlier, we published notices in the Federal Register on May 5,
2010 (75 FR 24545), announcing the proposed designation of critical
habitat, the availability of the draft economic analysis, and another
60-day comment period. We also notified the primary communities located
within the range of
[[Page 76132]]
polar bear in Alaska by mail of the opportunity to provide oral or
written comments prior to public hearings we held in Anchorage on June
15, 2010, and Barrow on June 17, 2010. In addition, the Alaska Nanuuq
Commission, which represents Alaska Native interests concerning the
conservation and subsistence use of polar bears, assisted in notifying
the villages about the proposed critical habitat designation through
their village representatives. We responded to all requests for
additional information from various organizations and communities
before and after submitting the proposed rule to designate critical
habitat to the Federal Register on October 29, 2009. Additionally, we
do not anticipate that this final designation of critical habitat will
have an effect on Alaska Native activities especially as they may
pertain to subsistence activities.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect this critical habitat designation to significantly
affect energy supply, distribution, or use.
Oil and gas activities have been conducted in the Beaufort and
Chukchi Seas since the late 1960s. A majority of the oil and gas
development has occurred on land adjacent to the Beaufort Sea, although
offshore development is expanding. In February 2008, 1,116,315 ha
(2,758,377 ac) located offshore of Alaska from Point Barrow to
northwest of Cape Lisburne were leased as part of Chukchi Sea Lease
Sale 193. This lease sale area starts approximately 40-80 km (25-50 mi)
from shore and extends out to 321 km (200 mi) offshore. In addition, in
September 2009, the Service completed a biological opinion on the MMS'
proposed lease sales and associated seismic surveys and exploratory
drilling in the Beaufort and Chukchi Seas program area. Exploration and
development are projected to occur in the Beaufort Sea and Chukchi Sea
Program Areas, which are a subset of the larger Beaufort and Chukchi
Seas Planning Areas. The Beaufort Sea Program Area includes
approximately 13.4 million ha (33.2 million ac) of the Beaufort Sea
from Barrow east to the United States-Canada border. The Chukchi Sea
Program Area covers approximately 16.3 million ha (40.2 million ac) of
the Chukchi Sea from the United States-Russia Maritime border west of
Point Hope to the edge of the Beaufort Sea Program Area at Barrow. Most
of the onshore and offshore areas currently associated with active or
proposed oil and gas activities overlap with the critical habitat
areas. Any proposed development project likely would have to undergo
section 7 consultations to ensure that the actions are not likely to
destroy or adversely modify designated critical habitat. Consultations
may result in modifications to the project to minimize the potential
adverse effects to polar bear critical habitat.
The Service has been working with the oil and gas industry for many
years in order to accommodate both project and species' needs under the
authorities of the MMPA. For example, more restrictive provisions
associated with incidental take regulations under the MMPA (see our
detailed discussion under Special Management Considerations or
Protection), have been developed for both the Chukchi and Beaufort Seas
and provide a framework to minimize any adverse bear-human interactions
associated with the oil and gas industry. We do not believe that the
critical habitat designation will provide any new and significant
effects on energy supply, distribution, or use. Although the future
will have many challenges, we expect to be able to work cooperatively
with oil and gas operators to minimize any adverse anthropogenic
effects to polar bears and their habitat. Therefore, we do not believe
this action is a significant energy action, and no Statement of Energy
Effects is required.
References Cited
A complete list of all references cited in this rulemaking is
available at http://regulations.gov, or upon request from the Field
Supervisor, Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT).
Author(s)
The primary authors of this package are the staff members of the
Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011
East Tudor Road, Anchorage, AK 99503.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.11(h), revise the entry for ``Bear, polar'' under
``MAMMALS'' in the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals..........................
* * * * * * *
Bear, polar...................... Ursus maritimus..... U.S.A. (AK), Entire............. T 781 17.95(a) 17.40(q)
Canada, Russia,
Denmark
(Greenland),
Norway.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 76133]]
3. In Sec. 17.95, amend paragraph (a) by adding an entry for
``Polar Bear (Ursus maritimus) in the United States'' in the same
alphabetical order that the species appears in the table at Sec.
17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Polar Bear (Ursus maritimus) in the United States
(1) Critical habitat areas are in the State of Alaska, and adjacent
territorial and U.S. waters, as described below.
(2) The primary constituent elements of critical habitat for the
polar bear in the United States are:
(i) Sea-ice habitat used for feeding, breeding, denning, and
movements, which is sea ice over waters 300 m (984.2 ft) or less in
depth that occurs over the continental shelf with adequate prey
resources (primarily ringed and bearded seals) to support polar bears.
(ii) Terrestrial denning habitat, which includes topographic
features, such as coastal bluffs and river banks, with the following
suitable macrohabitat characteristics:
(A) Steep, stable slopes (range 15.5-50.0[deg]), with heights
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or
relatively level ground below the slope and relatively flat terrain
above the slope;
(B) Unobstructed, undisturbed access between den sites and the
coast;
(C) Sea ice in proximity to terrestrial denning habitat prior to
the onset of denning during the fall to provide access to terrestrial
den sites; and
(D) The absence of disturbance from humans and human activities
that might attract other polar bears.
(iii) Barrier island habitat used for denning, refuge from human
disturbance, and movements along the coast to access maternal den and
optimal feeding habitat, which includes all barrier islands along the
Alaska coast and their associated spits, within the range of the polar
bear in the United States, and the water, ice, and terrestrial habitat
within 1.6 km (1 mi) of these islands (no-disturbance zone).
(3) Critical habitat does not include manmade structures (e.g.,
houses, gravel roads, generator plants, sewage treatment plants,
hotels, docks, seawalls, pipelines) and the land on which they are
located existing within the boundaries of designated critical habitat
on the effective date of this rule.
(4) Critical habitat map units. Boundaries were derived from GIS
data layers of the 1:63,360 scale digital coastline of the State of
Alaska, created by the Alaska Department of Natural Resources from U.S.
Geological Survey inch-to-the-mile topographic quadrangles. The
International Bathymetric Chart of the Arctic Ocean, version 2.3, was
used for the bathymetric data. The maritime boundaries to generate the
3-mile nautical line, U.S. territorial boundary, and Exclusive Economic
Zone were from the National Oceanic and Atmospheric Administration's
Office of Coast Survey Web site. The land status and ownership
information at the section level scale was from the Alaska Department
of Natural Resources, and was obtained from the Alaska State Office of
the Bureau of Land Management. The detailed parcel-level land status
was created by the U.S. Fish and Wildlife Service, Division of the
Realty, by digitizing U.S. Bureau of Land Management Master Title
Plots. The detailed denning habitat maps and the internal boundaries
for the terrestrial denning habitat were provided by the U.S.
Geological Survey, Alaska Science Center. The data were projected into
Alaska Standard Albers Conical Equal Area using the North American
Datum of 1983 to estimate the area of each critical habitat unit and
determine overlap with land and water ownership.
(5) Unit 1: Sea-ice habitat.
(i) The critical sea-ice habitat area includes all the contiguous
waters from the mean high tide line of the mainland coast of Alaska to
the 300-m (984.2-ft) bathymetry contour. The critical sea-ice habitat
is bounded on the east by the United States-Canada border
(69.64892[deg]N, 141.00533[deg]W) and extends along the coastline to a
point southwest of Hooper Bay (61.52859[deg]N, 166.15476[deg]W) on the
western coast of Alaska. The eastern boundary extends offshore
approximately 85 km (136 mi) from the coast (70.41526[deg]N,
141.0076[deg]W) at the United States-Canada border and then follows the
300-m (984.2-ft) bathymetry contour northwest until it intersects with
the U.S. 200-nautical-mile EEZ (74.01403[deg]N, 163.52341[deg]W). The
boundary then follows the EEZ boundary southwest to the intersection
with the United States-Russian boundary (72.78333[deg]N,
168.97694[deg]W). From this point, the boundary follows the United
States-Russia boundary south and southwest to the intersection with the
southern boundary of the Chukchi-Bering Seas population southwest of
Gambell, St Lawrence Island (62.55482[deg]N, 173.68023[deg]W). From
this point, the boundary extends southeast to the coast of Alaska
(61.52859[deg]N, 166.15476[deg]W).
(ii) The map of Unit 1, sea-ice habitat, follows:
BILLING CODE 4310-55-P
[[Page 76134]]
[GRAPHIC] [TIFF OMITTED] TR07DE10.001
(6) Unit 2: Terrestrial denning habitat.
(i) The critical terrestrial denning habitat area extends from the
mainland coast of Alaska 32 kilometers (20 mi) landward (primarily
south) from the United States-Canada border to the Kavik River to the
west. From the Kavik River to Barrow, the critical terrestrial denning
habitat extends landward 8 kilometers (5 mi) south from the mainland
coast of Alaska.
(ii) The village district of Barrow is excluded from the critical
terrestrial denning habitat area. The excluded area is delineated as
follows: Beginning at the southeast corner of the northeast \1/4\ of
Section 29, Unsurveyed T22N, R18W, Umiat Meridian, Alaska; thence North
to the southeast corner of the northeast \1/4\ of Section 17,
Unsurveyed T22N, R18W; thence East to the southeast corner of the
northeast \1/4\ of Section 16, Unsurveyed T22N, R18W, Umiat Meridian,
Alaska; thence North to the northeast corner of Section 16, Unsurveyed
T22N, R18W; thence East to the southeast corner of southwest \1/4\ of
Section 10, Unsurveyed T22N, R18W; thence North to the northwest corner
of the southwest \1/4\ of northeast \1/4\ of Section 34, Unsurveyed
T23N, R18W; thence East to the southeast corner of the northeast \1/4\
of the northeast \1/4\ of Section 34, Unsurveyed T23N, R18W; thence
North to the point where the section line common to Sections 14 and 15,
Unsurveyed T23N, R18W; intersects the mean low water line of the
Chukchi Sea; thence in a southwesterly direction along the mean low
water line of the Chukchi Sea to the point where the mean low water
line of the Chukchi Sea intersects the east-west center line of Section
27, Unsurveyed T22N, R19W; thence East to the point of beginning,
containing 21 square miles, more or less. You can view legal
descriptions and detailed, colored maps of the exclusions in this final
rule at http://alaska.fws.gov/fisheries/mmm/polarbear/
criticalhabitat.htm.
(iii) The village district of Kaktovik is excluded from the
critical terrestrial denning habitat area. The excluded area is
delineated as follows: From the P.O.B. (which is also the point of
beginning for the U.S. Survey No. 4234) at
[[Page 76135]]
approximately 2,828 feet distant on a bearing of N 01[deg] 40' E from
Tri. Sta. U. S. C. and G. S. ``Barter Astro''; the boundary thence
shall run West for approximately 325'; thence South approximately 600';
thence West approximately 500'; thence South approximately 100'; thence
West approximately 4,000'; thence South approximately 3,550'; thence
East approximately 4,000'; thence in a northeasterly direction
approximately 3,225' to a point on the mean high water line of the
Kaktovik Lagoon which is approximately 2,478' distant on a bearing S
78[ordm] 53' E from Tri. Sta. U. S. C. and G. S. ``Barter Astro'';
thence northerly along the meandering mean high water line of the
Kaktovik Lagoon, around Pipsuk Point, and westerly continuing on the
meandering mean high water line to a point on the mean high water line
of the Kaktovik Lagoon which is approximately 477' distant on a bearing
of N 88[ordm] 58' E from another point which is approximately 1,503'
distant on a bearing of N 01[ordm] 24' W from the point of beginning;
thence approximately 477' in a westerly direction, a bearing of S
88[ordm]; 58' W; thence approximately 1,503' in a southerly direction
on a bearing of S 01[ordm] 24' E to the point of beginning, containing
one square mile, more or less. You can view legal descriptions and
detailed, colored maps of the exclusions in this final rule at http://
alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm.
(iv) The maps of Unit 2 (east and west), terrestrial denning
habitat, follow:
[GRAPHIC] [TIFF OMITTED] TR07DE10.002
[[Page 76136]]
[GRAPHIC] [TIFF OMITTED] TR07DE10.003
(7) Unit 3: Barrier island habitat.
(i) The critical barrier island habitat includes off-shore islands
offset from the mainland coast of Alaska starting at the United States-
Canada border westward to Barrow, southwest to Cape Lisburne, south to
Point Hope, southwest to Wales, southeast to Nome, and ending at Hooper
Bay, AK, and water, sea ice, and land habitat within 1.6 kilometers (1
mile) of the barrier islands (no-disturbance zone).
(ii) The map of Unit 3, barrier island habitat, follows:
[[Page 76137]]
[GRAPHIC] [TIFF OMITTED] TR07DE10.004
* * * * *
Dated: October 25, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-29925 Filed 12-6-10; 8:45 am]
BILLING CODE 4310-55-C