Endangered Species Law & Policy

On February 24, 2015, the National Marine Fisheries Service (NMFS) announced a 12-month finding (pdf) on the Center for Biological Diversity’s (CBD) petition to revise the critical habitat designation for the Southern Resident killer whale (Orcinus orca) Distinct Population Segment (DPS) under the Endangered Species Act (ESA).  The 12-month finding describes how NMFS intends to proceed with the revision: completing data collection and analysis, identifying areas that meet the definition of critical habitat, balancing the benefits of any designation against the benefits of exclusion, and developing a proposed rule for the revised critical habitat for public comment.

NMFS issued a final rule (pdf) designating approximately 2,560 square miles of critical habitat for the Southern Resident killer whale in November 2006.  The final critical habitat designation identified three specific areas: (1) the Summer Core Area in Haro Strait; (2) Puget Sound; and (3) the Strait of Juan de Fuca.  At the time of the designation, however, NMFS noted that there was insufficient data on the species’ distribution throughout and use of the coastal and offshore areas in the Pacific Ocean.  Although NMFS recognized that the whales occupied Pacific Ocean waters for a portion for the year and considered them part of the area occupied by the species, NMFS declined to designate the waters as critical habitat because the data informing whale distribution, behavior, and habitat use were insufficient to define specific areas as required by the ESA.

On January 21, 2014, CBD petitioned NMFS for a revision to the critical habitat designation, proposing that the designation be expanded to include the Pacific Ocean region between Cape Flattery, WA, and Point Reyes, CA, extending approximately 47 miles offshore.  The petition also requested that NMFS adopt as a primary constituent element, for both currently designated critical habitat and the proposed revised critical habitat, protective in-water sound levels.

CBD’s petition listed recent sources of information on the Southern Resident killer whales’ habitat use along the West Coast of the United States, particularly data from NFMS’ Northwest Fisheries Science Center programs, including satellite tagging conducted in 2012 and 2013.  NMFS engaged in research activities to fill data gaps about coastal habitat use following the 2006 critical habitat designation.  In 2011, NMFS completed a 5-year review of the Southern Resident DPS, recommending that NMFS increase knowledge about the coastal distribution, habitat use, and prey consumption of the species to inform its critical habitat designation.