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Providing coverage of Alaska and northern Canada's oil and gas industry
April 2009

Vol. 14, No. 17 Week of April 26, 2009

NOAA asks for Cook Inlet beluga info

Inlet population declared endangered last year; agency now seeking information in making its determination of critical habitat

Kristen Nelson

Petroleum News

NOAA Fisheries has published an advanced notice concerning critical habitat for Cook Inlet beluga whales, the National Oceanic and Atmospheric Administration’s Alaska regional office said April 14.

“We aren’t yet proposing a rule on critical habitat for the Cook Inlet beluga whales, but we will,” Doug Mecum, acting administrator for the Alaska region of NOAA Fisheries said in a statement.

Mecum said the advanced notice “is an effort to get as much information as possible early in the process.”

Comments and information are due May 14.

The Cook Inlet beluga whale was listed as an endangered species Oct. 22, 2008.

NOAA is required under the Endangered Species Act to designate critical habitat for threatened and endangered species. NOAA said the secretary of Commerce has discretion to exclude any area from critical habitat if the benefits of such exclusion outweigh the benefits of inclusion, but he may not exclude areas that will result in extinction of the species.

Critical habitat significance

NOAA said in its April 14 Federal Register notice that once critical habitat is designated, ESA requires federal agencies “to ensure they do not fund, authorize or carry out any actions that will destroy or adversely modify that habitat,” in addition to ensuring that their actions “do not jeopardize the continued existence of listed species.”

In designating critical habitat the agency considers:

• Areas occupied by the species at the time of listing;

• Physical and biological features essential to species’ conservation;

• Special management considerations or protection needed;

• Areas outside those currently occupied that are essential for conservation;

• Benefits to species of critical habitat designation;

• Economic and other relevant impacts of a critical habitat designation;

• Appropriate geographic scale for weighing benefits of exclusion and benefits of designation; and

• Whether failure to designate any particular areas as critical habitat would result in extinction of species.

Cook Inlet belugas

Cook Inlet beluga whales are one of five distinct stocks recognized in Alaska, with the other stocks occurring in the Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea and Bristol Bay.

Cook Inlet belugas reside in the inlet year round, concentrating in the upper inlet at rivers and bays in the summer and fall and dispersing into deeper waters in mid-inlet locations in the winter.

NOAA said traditional ecological knowledge of Alaska Natives and systematic aerial survey data document a contraction of the summer range of Cook Inlet belugas: Once abundant in the lower inlet during the summer they are now primarily concentrated in the upper inlet.

“This constriction is likely a function of a reduced population seeking the highest quality habitat that offers the most abundant prey, most favorable feeding topography, the best calving areas, and the best protection from predation,” NOAA said.

Cook Inlet belugas are “opportunistic feeders,” the agency said, focusing on seasonally abundant prey — eulachon (hooligan or candlefish) in the early spring, salmon in the summer and in the fall species found in nearshore bays and estuaries such as cod and flatfishes.

NOAA said available information suggests belugas move throughout much of the inlet in the winter months, concentrating in deeper waters in the mid-inlet past Kalgin Island. The agency said ice cover does not appear to limit beluga movements in the winter and their winter distribution does not appear to be associated with river mouths as it is during summer months.

“The spatial dispersal and diversity of winter prey likely influence the wider beluga winter range,” the agency said.

State suing

The State of Alaska gave notice in January that it intended to sue over the listing of the Cook Inlet beluga whale as endangered, citing violations of the Endangered Species Act and the Administrative Procedure Act.

The state said the Department of Commerce and NOAA were seeking improperly to list a distinct population segment of the beluga whale in Cook Inlet as in danger of extinction throughout its range. The state said that in using the term distinct population segment it did not necessarily agree with the finding of the National Marine Fisheries Service that beluga whales in Cook Inlet are a distinct population segment.

The state said the final rule failed to properly consider substantial regulation by the state and its political subdivisions “of beluga habitat and food supply covering nearly every aspect of the environment affecting beluga whales in Cook Inlet, including water quality, oil and gas development, coastal and upland development, prey species management, cruise ship regulation and port development, among many others. These laws, when considered together with existing federal regulations, ensure that beluga whales in Cook Inlet are well protected.”

The state said NMFS found “existing conservation efforts do not provide sufficient certainty of effectiveness to substantially ameliorate the level of assessed extinction risk for Cook Inlet beluga whales,” but said the agency did not document that it “adequately considered” laws and regulations in Alaska. “Because NMFS did not document for the final rule that such conservation efforts were adequately considered, the final rule should be withdrawn,” the state said.

The state also said NMFS did not meet federal regulatory requirements that it adequately inform state agencies of the basis for actions not in agreement with the recommendations of those agencies.

DPS an issue

ESA does not define the term “distinct population segment,” the state said, and NMFS and the U.S. Fish and Wildlife Service have jointly adopted a policy statement guiding that evaluation considering two factors: discreteness of the population segment in relation to the remainder of the species to which it belongs and significance of the population segment to the species to which it belongs.

The state said NMFS relied on two of four non-exclusive factors in finding the Cook Inlet population to be discrete, but did not adequately document the determinations in the final rule. NMFS said the ecological setting is unique and the loss of the discrete population segment would result in a significant gap in the range of the species.

These determinations are inadequately documented in the final rule, the state said.

The court in a 2007 decision in Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service said that uniqueness of the habitat should be tied to some feature of importance for the species.

“Here, NMFS essentially asserts that Cook Inlet is important because it contains the southernmost beluga population, is an incised glacial fjord, and experiences large tidal exchanges in a true estuary. But NMFS does not explain how the geological setting interacts either with important characteristics of the beluga whale or is significant for the survival and recovery of the beluga whale,” the state said.

The state also said NMFS does not explain why the loss of the Cook Inlet population might create a significant gap in the species’ range, noting that “significant” in this contest has the commonly understood meaning of “important.” While the Cook Inlet beluga whale population is “an isolated, peripheral population at the southern portion of the subspecies’ range that alone may not mean that its loss creates a significant gap in the range of the species,” the state said.






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