There will be a public hearing held by NOAA concerning the Humpback Whale critical habitat designation in Petersburg from 4pm-7pm January 6th, in the Petersburg Borough Assembly Chambers.
The meeting will begin with a brief presentation by NOAA Fisheries giving an overview of critical habitat under the Endangered Species Act and an opportunity for the public to provide oral comments on the record regarding the proposed designation.
We strongly encourage you to attend the meeting and provide comments. If you are uncomfortable with public speaking, please attend the public hearing and submit written comments here.
To date, NOAA has heard strong support for the critical habitat designation from NGOs. It is important they hear from commercial fishermen who may be affected by this designation. There are strong arguments below to exclude Southeast Alaska from the designation.
NMFS is seeking comments and data regarding the following that may relate to the fishing industry:
- Information regarding current or planned activities in the areas proposed as critical habitat that may be impacted by the proposed critical habitat designation;
- Any foreseeable economic impact resulting from the proposed designations, including costs arising from project delays due to section 7 consultations;
- Whether any data used in the economic analysis need to be updated;
- Additional costs arising specifically from humpback whale critical habitat that have not been identified in the Draft Economic Analysis or improved costs estimates for activities that are included in the Draft Economic Analysis;
- Additional information regarding impacts on small businesses and Federally recognized tribes that were not identified in the Draft Economic Analysis.
See Appendix I and II for background information and maps of proposed critical habitat.
Issue #1: Increased regulatory burdens; impacts to i fisheries and development projects unclear
NMFS stated in the proposed rule that they believe it is unlikely that critical habitat will impact fisheries. It is unclear to what degree this will affect state managed fisheries, hatcheries, and mariculture. It is also unclear to what degree this will affect development projects in the affected area (e.g., dock and harbor upgrades).
The proposed critical habitat includes Southeast Alaska and is likely to result in increased regulatory burdens as direct and indirect costs to fishermen. This has been proven from other critical habitat designations., For example, the NMFS designation of stellar sea lion critical habitat (Final Rule, 58 FR 45269, 08/27/1993) stated that no additional regulatory actions were anticipated, but in hind sight that seems grossly naïve as there have been significant effects of the designation on federal fisheries, including the pollock fishery being shut down and even a recent Cod fishery closure. Summer seasonal use in the Alaskan Bering Sea/Aleutian Islands (BSAI) region by the ESA-listed Humpback whale population groups is significant. 95% of the Western North Pacific population group and 65% of the Mexico population group use the BSAI as their primary feeding area. Considering recent closures for the cod fishery, specifically on grounds of a food resource for a marine mammal (sea lions), the potential for management actions such as reduced fishing opportunity in the form of time and area closures are possible in the foreseeable future.
In the short-term, the impact may be minimal. However, over the long-term the concern is that mitigation measures will be required resulting in lost fishing opportunity such as gear modifications and time and area fishing restrictions. Legal engagement may be needed to sustain current fishing practices in the future.
Action: Request that NMFS provide realistic clarification on which fisheries will be affected by the proposed critical habitat designation now and in the foreseeable future. This includes: (1) state managed fisheries, hatcheries, and mariculture, and (2) federally managed groundfish fisheries.
Action: Request that NMFS provide realistic clarification on the type and scope of development projects that will be affected by the proposed critical habitat designation now and in the foreseeable future.
Issue #2: The Draft Economic Report deems the impact to fisheries negligible.
The Draft Economic Report deems the impact to fisheries negligible, however, little work has been done to estimate the economic impact of protected areas on fishing activities. The analysis of economic impacts substantially underestimates costs of the proposed critical habitat designation which is misleading to the public. Most activities within the proposed critical habitat area would trigger a NMFS Section 7 consultation, which will require time and money and likely mitigation measures (e.g., gear, fishing area, and fishing time modifications). At a minimum, Section 7 consultations will be triggered by any regulatory changes to existing fisheries (e.g., any fishery management plan amendments in federally managed fisheries
Action: Request that NMFS conduct a thorough economic analysis that includes: (1) the cost to fisheries (i.e., changes to gear, time, and area) due to habitat restrictions now or in the foreseeable future and (2) costs associated with participation in the Section 7 consultation process.
Issue #3: The proposed critical habitat for humpback whales in Alaska waters covers more than the biologically important areas, impacting fishermen needlessly.
The expansive critical habitat designation encompasses areas that are not critical feeding areas for humpback whales. For humpback whale critical habitat in Alaska alone, NMFS is proposing an area larger than the size of California for the Mexico population, and an area the size of Colorado for the Western North Pacific population. Designating vast areas as critical habitat provides little to no conservation benefit to listed species. Establishing regulatory burdens and costs without conservation benefits just serves to add complexity and costs to existing fisheries and erodes support for the ESA.
Action: Limit critical habitat to areas already designated by NMFS as biologically important areas.
Issue #4 The costs of designating critical habitat for Mexico population group (DPS) in Southeast Alaska far outweigh the conservation benefits.
The only ESA listed population that uses SEAK is the Mexico population group (DPS); the vast majority of the whales are non-ESA listed Hawaii population group. Only an estimated 2% of the Mexico population group uses the region from northern Vancouver Island to Yakutat Bay, which means it is likely that fewer than 2% of the Mexico DPS whales use SEAK (based on Wade 2017). Therefore, SEAK should be considered peripheral Mexico DPS humpback whale habitat.
The NMFS Critical Habitat Review Team estimated the conservation value of the SE AK unit as “medium”. This is likely due to the high proportion of the region that is identified as a Biologically Important Area for Hawaii population group (DPS) humpback feeding. The Hawaii DPS whales make up approximately 96% of the whales in the region, whereas the Mexico group only makes up about 4%. Therefore, the NMFS Critical Habitat Review Team estimate of a medium conservation value is likely an exaggeration of the true value of the region for the Mexico DPS.
The largest predicted economic impacts in NMFS’s analysis for the proposed critical habitat designation are for SEAK, and NMFS’s approach to considering economic impacts almost certainly underestimates the true economic impact of the proposed designation, because it is focused solely on the added cost for NMFS to consider impacts to critical habitat. An appropriate reanalysis of economic impacts would demonstrate that the costs of designating critical habitat in SEAK outweighs the benefits, and therefore SE AK should not be included in the final designation of critical habitat for the Mexico DPS.
ACTION: Request that NMFS redo their analysis [referred to as a 4(b)(2) analysis] recognizing that the economic impacts for SEAK are underestimated, while the conservation value is overly exaggerated. An appropriate reanalysis would demonstrate that the costs of designating critical habitat in SEAK outweighs the conservation benefits.
ACTION: Request that NMFS removes SEAK from the proposed critical habitat designation for Mexican population group (DPS) humpback whales.
Issue #5: Lack of transparency in application of “best available data”
NMFS is using conflicting data as their guidance for Section 7 consultations than what they are using to designate critical habitat. The data used for Section 7 (Wade et al 2016) indicates that the Mexico population and Western North Pacific population are peripheral to Alaska. The proposed critical habitat designation relies on Wade et al (2017) which reverses the defined summer seasonal use such that both population groups use the Alaska BSAI as the primary feeding ground. This is a fundamental conflict with agency management that escalated confusion and lack of transparency in the process.
Action: Consistent use of best available data.
ADF&G: Alaska Department of Fish and Game
BSAI: Bering Sea/Aleutian Island region
DPS: Distinct Population Segments
ESA: Endangered Species Act
NMFS: National Marine Fisheries Service
Appendix I: Background Information
1973: Humpback whale listed as endangered worldwide (no requirement in Endangered Species Act (ESA) for critical habitat designation).
2016: National Marine Fisheries Service (NMFS) delineated populations by Distinct Population Segments (DPS) base on breeding areas.
2016: Mexico DPS listed as Threatened, Western North Pacific DPS listed as endangered, Hawaii DPS deemed as recovered and removed from ESA list.
March 15, 2018: Center for Biological Diversity (CBD) sued NMFS to designate CH to conserve Mexico and Western North Pacific DPS.
Oct 9, 2019: NMFS announced proposed rule to designate critical habitat for the Mexico and Western North Pacific DPS (Figure 1). Public hearings announced (Juneau, Anchorage, Santa Cruz, Newport, Seattle)
Nov 7, 2019: Alaska Department of Fish and Game Commissioner presented comments at Juneau public hearing.
Nov 27, 2019: CH comment period extended to Jan 31, 2020 and public hearing planned in Petersburg January 6, 2020.
Dec 4, 2019: ADF&G met with NMFS to discuss communication issues on CH process
Humpback whales were listed as Endangered world-wide in 1973, with no further refinement of the global population structure or listing status until 2016, when NMFS began delineating populations by DPS, based on where they are known to breed. Three DPSs use Alaskan waters for feeding. The main population of humpback whales that uses Alaska waters is the Hawaii DPS, which breeds in Hawaii and summers in Alaska. Additionally, 95% of the Western North Pacific DPS is estimated to use the Bering Sea/Aleutian Island region (BSAI) during the summer feeding season. Finally, the Mexico DPS breeds in Mexico and 55% of the population is believed to feed in the BSAI. In 2016, the Mexico DPS was listed as Threatened, the Western North Pacific DPS was listed as Endangered, and the Hawaii DPS was deemed to have recovered and removed from the ESA list.
When the humpback whale was first listed in 1973, there was no requirement in the ESA to designate critical habitat. The current critical habitat proposal resulted from a suit brought by the Center for Biological Diversity, seeking to compel NMFS to timely designate critical habitat for listed humpback whale. The purpose of the proposed critical habitat would be to conserve the listed Mexico and Western North Pacific populations. Designating critical habitat under the ESA does not set aside the area, but any activities and developments requiring Federal permits or funding that are proposed within critical habitat must then undergo ESA “Section 7” consultation with the federal agencies. Consultation is likely to result in costs to project applicants and could cause project delays, as well as required changes to the initial project plans to avoid destruction or adverse modification of important biological or physical features found within the designated critical habitat.
Appendix II: Proposed critical habitat for humpback whales. Left figure shows critical habitat for the Mexico Distinct Population segment. The right figure displays the proposed critical habitat for the Western North Pacific Distinct Population segment.