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My boating excursion in the Pacific Northwest to see endangered orcas was as ...
From Sheryl Eisenberg
76673
Federal Register
/Vol. 69, No. 245/Wednesday, December 22, 2004/Proposed Rules
DEPARTMENT OF COMMERCENational Oceanic and AtmosphericAdministration50 CFR Part 223
[Docket No. 041213348
–
4348
–
01; I.D.110904E]RIN 0648
–
AS95
Endangered and Threatened Wildlifeand Plants: Proposed ThreatenedStatus for Southern Resident KillerWhales
AGENCY
:
National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.
ACTION
:
Proposed rule; request forcomments.
SUMMARY
:
We, the NMFS, havecompleted an update on the statusreview of Southern Resident killerwhales (
Orcinus orca
) under theEndangered Species Act (ESA). Basedon the review of the best availablescientific and commercial information,including new data, published papers,and workshop reports available sincethe review in 2002, we are proposing tolist the Southern Resident killer whalesas threatened because these killerwhales constitute a distinct populationsegment (DPS) under the ESA and arelikely to become endangered in theforeseeable future throughout all or asignificant portion of their range. We arenot proposing to designate criticalhabitat at this time, but are requestingpublic comments on the issuespertaining to this proposed rule.
DATES
:
Comments must be received byMarch 22, 2005. Requests for publichearings must be made in writing byFebruary 7, 2005. We have alreadyscheduled public hearings on thisproposed rule as follows:Thursday, February 17, 2005, from1:30
–
4:30 pm and 6:30
–
9 pm at theSeattle Aquarium, 1483 Alaskan Way, inSeattle, WA 98101;Monday, February 28, 2005, from 1:30
–
4:30 pm and 6:30 - 9 pm at the FridayHarbor Labs, 620 University Road,Friday Harbor, WA 98250.The 1:30
–
4:30 pm afternoon sessionswill be provided for local practitionersand stakeholder parties, and the 6:30
–
9:30 pm evening
‘‘
open house
’’
sessionsare designed for broader publicparticipation. Additional informationregarding the meetings is available viathe Internet at
http://www.nwr.noaa.gov
.
ADDRESSES
:
Comments should besubmitted to Chief, Protected ResourcesDivision, 525 NE Oregon Street, Suite500, Portland, OR, 97232
–
2737.Comments may also be submittedelectronically via the Federal e-Rulemaking Portal at
http:// www.regulations.gov
or by sending an e-mail message to
SRKWstatus.nwr@noaa.gov
.
FOR FURTHER INFORMATION CONTACT
:
Mr.Garth Griffin, Northwest RegionalOffice, Portland, OR (503) 231
–
2005, orMs. Marta Nammack, Office of ProtectedResources, Silver Spring, MD (301) 713
–
1401, ext. 180.
SUPPLEMENTARY INFORMATION
:
Electronic Access
A list of references cited in this noticeis available via the Internet at
http:// www.nwr.noaa.gov
. Additionalinformation, including agency reportsand written comments, is also availableat this Internet address.
Background
On May 2, 2001, we received apetition from the Center for BiologicalDiversity and 11 co-petitioners (CBD,2001) to list Southern Resident killerwhales as threatened or endangeredunder the ESA. On August 13, 2001, weprovided notice of our determinationthat the petition presented substantialinformation that a listing may bewarranted and requested information toassist with a status review to determineif Southern Resident killer whaleswarranted listing under the ESA (66 FR42499). To assist in the status review,we formed a Biological Review Team(BRT) of scientists from our Alaska,Northwest, and Southwest FisheriesScience Centers. We convened ameeting on September 26, 2001, togather technical information from co-managers, scientists, and individualshaving research or managementexpertise pertaining to killer whalestocks in the North Pacific Ocean.Additionally, the BRT discussed itspreliminary scientific findings withTribal, State and Canadian co-managerson March 25, 2002. The BRT consideredinformation from the petition, theSeptember and March meetings, andcomments submitted in response to ourinformation request to prepare a finalscientific document on SouthernResident killer whales (NMFS, 2002).After conducting the status review,we determined that listing SouthernResident killer whales as a threatened orendangered species was not warranted because Southern Resident killer whalesdid not constitute a species as defined by the ESA. The population wasconsidered in the context of the globaltaxon (i.e., all killer whales worldwide)and we found that Southern Residentkiller whales did not meet thesignificance criteria for consideration asa DPS. The finding, along withsupporting documentation, waspublished on July 1, 2002 (67 FR44133). The 2002 status review andother documents supporting the
‘‘
notwarranted
’’
finding are available on theInternet (see Electronic Access). Becauseof the uncertainties regarding killerwhale taxonomy (i.e., whether the killerwhale should be considered as onespecies or as multiple species and/orsubspecies), we announced that itwould reconsider the taxonomy of killerwhales within 4 years.The scientific information evaluatedduring the ESA status review indicatedthat Southern Resident killer whalesmay be depleted under the MarineMammal Protection Act (MMPA). Weinitiated consultation with the MarineMammal Commission (Commission) ina letter dated June 25, 2002, andpublished an advance notice of proposed rulemaking (ANPR) on July 1,2002 (67 FR 44132), to request pertinentinformation regarding the status of thestock and potential conservationmeasures that may benefit these whales.After considering comments received inresponse to the ANPR and from theCommission, we published a proposedrule to designate the Southern Residentstock of killer whales as depleted (68 FR4747; January 30, 2003) and solicitedcomments on the proposal. Based on the best scientific information available,consultation with the Commission, andconsideration of public comment, wedetermined that the Southern Residentstock of killer whales was depletedunder the MMPA (68 FR 31980; May 29,2003) and announced our intention toprepare a Conservation Plan.On December 18, 2002, the Center forBiological Diversity (and otherplaintiffs) challenged our
‘‘
notwarranted
’’
finding under the ESA inU.S. District Court. The U.S. DistrictCourt for the Western District of Washington issued an order onDecember 17, 2003, which set aside our
‘‘
not warranted
’’
finding and remandedthe matter to us for redetermination of whether the Southern Resident killerwhales should be listed under the ESA(
Center for Biological Diversity, et al.,
v.
Robert Lohn, et al.
, 296 F. Supp. 2d.1223 W.D. Wash. 2003). The court orderheld that
‘‘
[w]hen the best availablescience indicates that the
’
standardtaxonomic distinctions
’
are wrong . . .NMFS must rely on the best availablescience.
’’
Although we announced in 2002 thatthe status of killer whales would berevisited in 4 years, the schedule forreevaluating Southern Resident killer
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Federal Register
/Vol. 69, No. 245/Wednesday, December 22, 2004/Proposed Rules
whales was expedited as a result of thecourt
’
s order. We reconvened a BRT in2004 to consider new scientific andcommercial data available since 2002and update the status review forSouthern Residents in accordance withthat order. We announced the statusreview update and requested thatinterested parties submit pertinentinformation to assist us with the update(69 FR 9809, March 2, 2004). Inaddition, we co-sponsored a CetaceanTaxonomy workshop in 2004, whichincluded a special session on killerwhales. The papers and reports from theworkshop were made available to theBRT.In August 2004, we met withWashington State and Tribal co-managers to provide information on thestatus review update and receivecomments. These comments wereevaluated by the BRT, who thenprepared a final status review documentfor Southern Resident killer whales(NMFS, 2004).
Biological Background
Killer whales are one of the moststrikingly pigmented of all cetaceans,making field identification easy. Killerwhales are black dorsally and whiteventrally, with a conspicuous whiteoval patch located slightly above and behind the eye. A highly variable grayor white saddle is usually present behind the dorsal fin. Saddle shapevaries among individuals, pods, andfrom one side to the other on a singleanimal. Sexual dimorphism occurs in body size, flipper size, and height of thedorsal fin. More detailed informationregarding this species
’
distribution, behavior, genetics, morphology, andphysiology are contained in the BRT
’
sstatus review documents (NMFS, 2002,2004) and the Washington State StatusReport for the Killer Whale (Wiles,2004).Killer whales are classified as toppredators in the food chain and theworld
’
s most widely distributed marinemammal (Leatherwood and Dahlheim,1978; Heyning and Dahlheim, 1988).Although observed in tropical watersand the open sea, they are mostabundant in coastal habitats and highlatitudes. In the northeastern PacificOcean, killer whales occur in theeastern Bering Sea (Braham andDahlheim, 1982) and are frequentlyobserved near the Aleutian Islands(Scammon, 1874; Murie, 1959; Waite
et al.
, 2001). They reportedly occur year-round in the waters of southeasternAlaska (Scheffer, 1967) and theintercoastal waterways of BritishColumbia and Washington State(Balcomb and Goebel, 1976; Bigg
et al.
,1987; Osborne
et al.
, 1988). There areoccasional reports of killer whales alongthe coasts of Washington, Oregon, andCalifornia (Norris and Prescott, 1961;Fiscus and Niggol, 1965; Rice, 1968;Gilmore, 1976; Black et al., 1997; NMFS,2004), both coasts of Baja California(Dahlheim
et al.
, 1982), the offshoretropical Pacific (Dahlheim
et al.
, 1982),the Gulf of Panama, and the GalapagosIslands. In the western North Pacific,killer whales occur frequently along theSoviet coast in the Bering Sea, the Seaof Okhotsk, the Sea of Japan, and alongthe eastern side of Sakhalin and theKuril Islands (Tomilin, 1957). There arenumerous accounts of their occurrenceoff China (Wang, 1985) and Japan(Nishiwaki and Handa, 1958; Kasuya,1971; Ohsumi, 1975). Data from thecentral Pacific are scarce. They have been reported off Hawaii, but do notappear to be abundant in these waters(Tomich, 1986; Caretta
et al.
, 2001).The killer whale is the largest specieswithin the family Delphinidae. Variousscientific names have been assigned tothe killer whale (Hershkovitz, 1966;Heyning and Dahlheim, 1988). Thesevarious names can be explained bysexual and age differences in the size of the dorsal fin, individual variations incolor patterns, and the cosmopolitandistribution of the animals. The genus
Orcinus
is currently consideredmonotypic with geographical variationnoted in size and pigmentation patterns.Two proposed Antarctic species,
O.nanus
(Mikhalev
et al.
, 1981) and
O.glacialis
(Berzin and Vladimirov, 1982;Berzin and Vladimirov, 1983), bothappear to refer to the same type of smaller individuals. However, becauseof significant uncertainties regarding thelimited specimen data, these new taxahave not been widely accepted by thescientific community. New observationsof color pattern, size, habitat andfeeding ecology have led to theconclusion that there are three types of killer whales in Antarctica (Pitman andEnsor, 2003). Recent geneticinvestigations note marked differences between some forms of killer whale(Hoelzel and Dover, 1991; Hoelzel
et al.
,1998; Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001). Killer whaletaxonomy was reviewed as part of the
‘‘
Workshop on Shortcomings of Cetacean Taxonomy in Relation toNeeds of Conservation andManagement
’’
held on April 30 - May 2,2004 in La Jolla, California, and theresults were published in a report(Reeves
et. al.
, 2004).
Ecotypes of Killer Whales
Killer whales in the Eastern NorthPacific region (which includes thepetitioned whale pods) have beenclassified into three forms, or ecotypes,termed residents, transients, andoffshore whales. Significant geneticdifferences occur among resident,transient, and offshore killer whales(Stevens
et al.
, 1989; Hoelzel and Dover,1991; Hoelzel
et al.
, 1998; Barrett-Lennard, 2000; Barrett-Lennard andEllis, 2001; Hoelzel
et al.
, 2002). Thethree forms also vary in morphology,ecology, and behavior. All of thesecharacteristics play an important role indetermining whether the monotypicspecies
O. orca
can be subdivided underthe ESA.Resident Killer WhalesResident killer whales in the EasternNorth Pacific are noticeably differentfrom both the transient and offshoreforms. The dorsal fin of resident whalesis rounded at the tip and falcate (curvedand tapering). Resident whales have avariety of saddle patch pigmentationswith five different patterns recognized(Baird and Stacey, 1988). Residentwhales occur in large, stable pods withmembership ranging from 10 toapproximately 60 whales. Theirpresence has been noted in the watersfrom California to Alaska. The primaryprey of resident whales is fish. A recentsummary of the differences betweenresident and transient forms is found inBaird (2000).Resident killer whales in the NorthPacific consist of the following groups:Southern, Northern, Southern Alaska(includes Southeast Alaska and PrinceWilliam Sound whales), western Alaska,and western North Pacific Residents.
Southern Residents:
The SouthernResident killer whale assemblagecontains three pods-- J pod, K pod, andL pod--and is considered a stock underthe MMPA. Their range during thespring, summer, and fall includes theinland waterways of Puget Sound, Straitof Juan de Fuca, and Southern GeorgiaStrait. Their occurrence in the coastalwaters off Oregon, Washington,Vancouver Island, and more recently off the coast of central California in thesouth and off the Queen CharlotteIslands to the north has beendocumented. Little is known about thewinter movements and range of theSouthern Resident stock. SouthernResidents have not been seen toassociate with other resident whales,and mitochondrial and nuclear geneticdata suggest that Southern Residentsinterbreed with other killer whalepopulations rarely if at all (Hoelzel
et al.
, 1998; Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001).
Northern Residents:
The NorthernResident killer whale assemblage
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Federal Register
/Vol. 69, No. 245/Wednesday, December 22, 2004/Proposed Rules
contains approximately 16 pods. Theyrange from Georgia Strait (BritishColumbia) to Southeast Alaska (Ford
et al.
, 2000; Dahlheim, 1997). On occasionthey have been known to occur in HaroStrait (west of San Juan Island,Washington). Although some overlap inrange occurs between the Northern andSouthern Residents, no intermixing of pods has been noted. However, inSoutheast Alaska, Northern Residentwhales are seen in close proximity toSouthern Alaska Residents (Dahlheim
et al.
, 1997), and there may be limited geneflow between the two populations(Hoelzel
et al.
, 1998; Barrett-Lennard,2000; Barrett-Lennard and Ellis, 2001).
Alaska Residents:
There are twogroups of Alaska Resident animals,Southern Alaska Residents and WesternAlaska Residents. The resident whalesof Southeast Alaska and Prince WilliamSound comprise the Southern AlaskaResident killer whale assemblage. Atleast 15 pods have been identified inthese two regions. Resident killerwhales photographed in SoutheastAlaska travel frequently to PrinceWilliam Sound and intermix with allresident groups from this area(Dahlheim
et al.
, 1997; Matkin andSaulitis, 1997). Prince William SoundResident whales have not been seen inSoutheast Alaska, but have been notedoff Kodiak Island intermixing withother, yet unnamed, resident pods(Dahlheim, 1997; NMFS, 2004). Vesselsurveys in the southeastern Bering Seahave provided preliminary estimates of approximately 400 killer whales (Waite
et al.
, 2001) and preliminary counts, based on photo-identification, suggest aminimum of 800 individual residentwhales inhabiting this region (NMFS,2004).
Western North Pacific Residents:
Thepresence of resident killer whales has been documented along the coastline of Russia (NMFS, 2004). It is likely thatresident killer whales also occur alongthe coastline of Japan, but additionalinformation is required to confirm thishypothesis.Transient Killer WhalesTransient whales occur throughoutthe Eastern North Pacific with apreference towards coastal waters. Theirgeographical range overlaps that of theresident and offshore whales. Individualtransient killer whales have beendocumented to move great distancesreflecting a large home range (Goley andStraley, 1994). There are severaldifferences between transient andresident killer whales; these have mostrecently been summarized by Baird(2000). The dorsal fin of transientwhales tends to be more erect (i.e.,straighter at the tip) than those of resident and offshore whales. Saddlepatch pigmentation of Transient killerwhales is restricted to three patterns(Baird and Stacey, 1988). Pod structureis small (e.g., fewer than 10 whales) anddynamic in nature. The primary prey of transient killer whales is other marinemammals. Transient whales are notknown to intermix with resident oroffshore whales. Recent geneticinvestigations indicate that up to threegenetically different groups of transientkiller whales exist in the eastern NorthPacific (the
‘‘
west coast
’’
Transients, the
‘‘
Gulf of Alaska Transients
’’
and theAT1 pod) (Barrett-Lennard, 2000;Barrett-Lennard and Ellis, 2001).Offshore Killer WhalesOffshore killer whales are similar toresident whales, but can bedistinguished (i.e., their fins appear to be more rounded at the tip withmultiple nicks on the trailing edge,smaller overall size, less sexualdimorphism), but these characteristicsneed to be further quantified. Offshorewhales have been seen in considerablylarger groups (up to 200 whales) thanresidents or transients have. They areknown to range from central coastalMexico to Alaska and occur in bothcoastal and offshore waters (300 milesoff Washington State). While foraging, itis assumed that the main target is fish, but observations of feeding events areextremely limited. Offshore whales arenot known to intermingle with residentor transient whales. Genetic analysissuggests that offshore whales aresubstantially reproductively isolatedfrom other killer whale populations(Barrett-Lennard, 2000; Hoelzel
et al.
,2004).
Consideration as a
‘‘
Species
’’
under theESA
The ESA defines a species to include
‘‘
any subspecies of fish or wildlife orplants, and any distinct populationsegment of any species of vertebrate fishor wildlife which interbreeds whenmature.
’’
Guidance on what constitutesa DPS is provided by the joint NMFS-U.S. Fish and Wildlife Service (FWS)interagency policy on vertebratepopulations (61 FR 4722; February 7,1996). To be considered a DPS, apopulation, or group of populations,must be
‘‘
discrete
’’
from otherpopulations and
‘‘
significant
’’
to thetaxon (species or subspecies) to whichit belongs. A population segment of avertebrate species may be considereddiscrete if:(1) It is markedly separated from otherpopulations of the same taxon as aconsequence of physical, physiological,ecological or behavioral factors.Quantitative measures of genetic ormorphological discontinuity may alsoprovide evidence of this separation; or(2) It is delimited by internationalgovernmental boundaries within whichdifferences in control of exploitation,management of habitat, conservationstatus, or regulatory mechanisms existthat are significant in light of section4(a)(1)(D) of the ESA.If a population segment is considereddiscrete, we must then consider whetherthe discrete segment is
‘‘
significant
’’
tothe taxon to which it belongs. Criteriathat can be used to determine whetherthe discrete segment is significantinclude:(1) Persistence of the discretepopulation segment in an ecologicalsetting unusual or unique for the taxon;(2) Evidence that loss of the discretepopulation segment would result in asignificant gap in the range of the taxon;(3) Evidence that the discretepopulation segment represents the onlysurviving natural occurrence of a taxonthat may be more abundant elsewhere asan introduced population outside itshistoric range; and(4) Evidence that the discretepopulation segment differs markedlyfrom other populations of the species inits genetic characteristics.A population segment needs to satisfyonly one of these criteria to beconsidered significant. Furthermore, thelist of criteria is not exhaustive; othercriteria may be used, as appropriate.
Killer Whale Taxonomy
Correctly identifying the killer whaletaxon is critical because the criteriaused to evaluate
‘‘
significance
’’
of a DPSare defined relative to the larger taxonto which it belongs. Uncertainty aboutthe taxonomic status of killer whalesposed a problem for the 2002 BRT. Inparticular, it noted that the currentdesignation of one global species forkiller whales was likely inaccurate because there was increasing evidenceto suggest that additional species orsubspecies of killer whales probablyexist. The previous prevailing conceptof a single species has recently evolvedinto a diversity of views that include thepossibility of multiple species. Recentnew observations and data onmorphology and genetics of both theAntarctic and North Pacific killerwhales have re-opened the question,and two divergent bodies of expertopinion have emerged. At the 2004Cetacean Taxonomy workshop, expertsprepared cases for two taxonomicscenarios. Under one line of reasoning,killer whales are a single highly variablespecies, with locally differentiated
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