RDC Comment Letter:
Cook Inlet Beluga Whale ESA Listing Comments

August 3, 2007

Ms. Kaja Brix

National Marine Fisheries Service

Protected Resources Division

709 W. 9th Street

PO Box 21668

Juneau, Alaska 99802-1668

Attn: Ellen Sebastian

Re: Proposed Endangered Status Listing of the Cook Inlet Beluga Whale

Dear Ms. Brix:

Thank you for the opportunity to submit comments on the proposed Endangered status listing of the Cook Inlet Beluga Whale under the Endangered Species Act (ESA).

RDC is a statewide business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism, and fisheries industries.  RDC’s membership includes Alaska Native corporations, local communities, organized labor, and industry support firms.  RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

RDC members who live, recreate, and work in and around Cook Inlet are committed to the recovery of the beluga whale.  Over the years, we have worked closely with our members and the National Marine Fisheries Service (NMFS) on a number of initiatives to assist in the recovery of the stock. In addition, we intervened, on behalf of NMFS in a lawsuit only 7 years ago when the agency determined the Cook Inlet belugas should be listed as depleted under the Marine Mammal Protection Act (MMPA).  Together with NMFS, we prevailed in that case.  Attached, for the record, is the Honorable Judge James Robertson’s ruling from that case (Civil Action NO. 00-1017).

We do not feel sufficient time has passed, nor that anything has changed for the worse for belugas since this ruling, to warrant a listing at this time.

NMFS acknowledged the sole cause for the decline of the Cook Inlet Beluga Whale was the subsistence harvest and a co-management agreement was developed to limit the subsistence take of belugas to one or two animals per year.  Following the court decision, RDC participated in the comment process for the beluga conservation plan and have been awaiting its release.  As we indicated in our comments of June 27, 2005 and May 30, 2006, we continue to believe that given the beluga’s life history, low reproductive rate, gestation period, parental investment, age to sexual maturity, and the establishment of the comanagement agreement, it is inappropriate for NMFS to so quickly abandon the conservation measures already in place under the MMPA. We therefore oppose listing the stock of Cook Inlet beluga whales as endangered under the ESA.

Such a listing, so soon after NMFS’ original designation under MMPA and subsequent court decision upholding that designation, will only lead to additional burden on economic and community development activities in and around Cook Inlet with no clear, corresponding benefit to the stock.  More time should be given, a responsible conservation plan as required by the Marine Mammal Protection Act developed and implemented, and research dollars provided before resorting to the ESA.

As requested by the agency, following are comments addressing the five main issues: 1. The current population status of the Cook Inlet beluga whale; 2. Biological or other information regarding the threats to this species; 3. Information on the effectiveness of ongoing and planned conservation efforts by states or local entities; 4. Information related to the identification of critical habitat and essential physical or biological features for this species; and 5. Economic or other relevant impacts of designation of critical habitat.

1. The current population status of the Cook Inlet beluga whale

NMFS stated in its Subsistence Harvest Management Plan For Cook Inlet Beluga Whales

(www.nmfs.noaa.gov/pr/pdfs/sars/ak03belugawhalecookinlet.pdf ) that, “A minimum of 8-10 years of abundance estimates are required to distinguish among an increasing, stable, or decreasing growth trend at a 95 percent level of significance.”  The 12 years of data that are known for the Cook Inlet Beluga whales, as determined by aerial surveys conducted each year in June and July, do not show any trends with a 95 percent level of significance.  This is disturbing given it is known over 300 animals were taken during the subsistence hunts of the mid-to-late 90s in addition to an unknown number of dependent young that may have perished as a result.  Clearly, the methodology of these surveys and the subsequent results with such large standard deviations, must be questioned.  Further, NMFS has stated in this proposed rule that an average rate of decline of 4.1% has been observed since 1999.  Again, this is not true within the 95% confidence interval, and is therefore not able to be used to show an increasing, stable, or decreasing growth trend.

The methodologies used in conducting the annual aerial survey are suspect. In addition, NMFS has indicated “an obvious relationship between size and color with small and medium whales comprising most of the dark and light gray whales, and large and very large whales comprising most of the off-white and white whales.” (http://www.fakr.noaa.gov/protectedresources/whales/beluga/reports/grpcount_waite_hobbs.pdf).  Therefore, it is obvious that juvenile belugas, which match perfectly with the color of Cook Inlet waters, are difficult if not impossible to see and count from an airplane.  These animals will turn white and will be easier to count when they reach 5-8 years old.  At that point, they will also be closer to the age of sexual maturity and subsequently be able to help grow the population.  Further, it is highly possible aerial counts may miss significant numbers of diving individuals. A typical dive usually lasts three to five minutes, but belugas can stay submerged for as long as 15 minutes (Nowak, 1991; Ridgway and Harrison, 1981). In addition, they are capable of diving to great depths, upwards of 1,000 meters (http://www.dfo-mpo.gc.ca/zone/underwater_sousmarin/ beluga/beluga_e.htm). In addition, the methodology for converting the raw aerial counts and the accompanying video footage of the whales to the final population estimate are derived in part from methodologies used in Bristol Bay, where there is significantly higher clarity to the water column. Clearly, the counting methodologies and subsequent conversions need to be revised.

In addition, the methodology of the 1979 study, which determined an estimate of 1,293 animals, has repeatedly been questioned.  The survey’s methodology is completely different than what is currently used.  This number should be discarded. Sadly, this one estimate has been used to set the carrying capacity for the entire Inlet and subsequent recovery objectives as well as the population viability analysis. Indeed, NMFS stated in the May 31, 2000 Federal Register, “The true K (carrying capacity), which is the basis for OSP determinations, for this stock is unknown. Furthermore, reliable historical abundance estimates, which may be used as a substitute for K, are not available.” Yet, for some reason, 1,300 continues to be used.

In reality, the carrying capacity of the Cook Inlet for beluga whales has likely declined.  A potential cause for this decline in carrying capacity may be the constant release of fine silts from glaciers, filling the Inlet up at a steady rate.  This is documented by the increased frequency of dredging that occurs.  Thus, it is likely the Cook Inlet is able to support fewer animals than may have historically been found in the Inlet.  A much more realistic number should have been used.  The associated abundance estimate by the agency of 653 animals in 1994, before the unsustainable harvest of the mid-90s occurred, appears to be a much more realistic number.

Therefore, the models referenced in the proposed rule indicating a 26% chance for extinction over the next 100 years are non-defensible.  Insufficient and questionable data will lead to poor results from modeling.

We encourage the Agency to follow the wording of the ESA to use “the best scientific and commercial data available” in making this decision and not unilaterally discount these studies.  (Emphasis added) Hence, by attachment, we request NMFS incorporate the draft study or data found therein, conducted by LGL, and funded by Chevron, on the photo identification of Cook Inlet belugas.  This study was conducted by professional biologists, and the data collected are valid.  Over 50,000 individual photos were taken of individual whales’ flukes during 99 surveys over the course of 15 months.  The data from this study clearly shows 330 unique individuals exist in one geographic area of Cook Inlet.  This number is nearly 10% higher than the recent abundance estimates provided by NMFS for the entire Cook Inlet.  This data also shows a subadult population of greater than 40%, indicative of a growing population.  If this study, or data found therein, is not used in making this decision, we request the Agency provide a detailed explanation as to why it will not be used.  By incorporation, we reference each of these 50,000 photos for the record, and request if this study is not used in the determination, if necessary, each be analyzed by NMFS itself.  Comparing photos taken at eyelevel has a lesser chance for error as opposed to videos and photos taken hundreds of feet in the air, whereupon many individuals are missed, either due to the speed of the aircraft, lack of covering the entire Inlet, whale diving, or the extreme difficulty in counting juvenile whales as their color matches that of the Inlet.

As defined in the ESA, the term ‘‘endangered species’’ means any species in danger of extinction throughout all or a significant portion of its range.  Unilaterally stating in the Federal Register that “this group is a distinct population segment and thus, a separate species as defined by the ESA” is wrong.  Beluga whales exist throughout Alaskan Coastal waters and by no means are they in danger of extinction throughout all or a significant portion of their range as defined by the ESA.  In fact, questions exist to this day as to whether this stock is indeed a distinct population segment (DPS.) There is little to no evidence showing where these animals reside in the winter, and hence members from this stock may even intermix with Bristol Bay beluga whales.  If indeed they are a DPS, it is important to remind the agency that the ESA states, “The term ‘‘species’’ includes any subspecies of fish or wild-life or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature.” If these animals are shown to interbreed with the Bristol Bay population, then this population should not be listed as a DPS.

Traditional Ecological Knowledge is also very important in determining the current status of the belugas.  Indeed a NMFS report from the August 2005 aerial survey reports, “Several Natives approached belugas near Big and Little Susitna Rivers where whales were later observed by the aerial crew; unusually high numbers of juveniles and calves were present with the white adult belugas.”

Finally, the agency has proposed modifying the present description of the Cook Inlet beluga whale DPS by removing those beluga whales occurring near Yakutat or outside Cook Inlet waters.  NMFS must subsequently modify its historic population counts if it is choosing to remove the Yakutat population of whales from the count.  Though their number (12) is small, it accounts for 4% of the 302 whales in the population.  Public perception of such removal would assuredly view this as a decrease.

2.  Biological or other information regarding the threats to this species.

There is no scientific evidence that human factors other than subsistence harvesting have impacted the population.  In fact, contaminant levels for the Cook Inlet belugas are lower than those found in similar populations elsewhere.

The peak population of beluga whales in the 1970s, as identified by NMFS, is one that grew with all of the current activities in the Inlet: oil and gas exploration and development, municipal discharge, vessel traffic, sport and commercial fishing.  In its proposed listing NMFS states: “No information exists that beluga habitat has been modified or curtailed to an extent that it is likely to have caused the population declines observed within Cook Inlet.”

As mentioned in the Draft Conservation Plan, Cook Inlet belugas have much lower concentrations of PCBs and DDT than other stocks found in Alaska, Greenland, Arctic Canada and the Saint Lawrence estuary in eastern Canada.  In fact, Becker et al.  (2000) compared tissue levels of total PCBs, total DDT, chlordane compounds, hexachlorobenzene, dieldrin, mirex, toxaphene, and hexachlorocyclohexene and found the Cook Inlet beluga whales had the lowest concentrations of all.  In addition, hepatic concentrations of cadmium and mercury were lower in the Cook Inlet population as compared to the Arctic Alaska populations.  Unfortunately, the draft conservation plan discounts these extremely positive trends in environmental contamination by stating “the effects of lower concentrations of PCBs and chlorinated pesticides on animal health may be of less significance for the Cook Inlet animals than for other beluga whale populations.” Using contaminant levels as indicators of health when convenient is not sound science.

In addition, commercial, sports, and subsistence fisheries have long taken salmon and eulachon from Cook Inlet and contaminant levels for these species have never been an issue.  In fact, wild Alaskan salmon is considered the best in the world, a fact RDC members are proud of and intend to maintain.

3.  Information on the effectiveness of ongoing and planned conservation efforts by states or local entities. 

RDC remains disappointed at the level of research dollars that have been requested by NMFS to study the Cook Inlet beluga whales since their listing under the MMPA.  On more than one occasion, RDC and our members have offered to assist the agency in securing additional federal and corporate funds to conduct such studies.  Unfortunately, the only government-funded research being done on the Cook Inlet belugas is an annual survey in June along with a single August survey.  This lack of due diligence is troubling.  RDC has queried NMFS as to why additional satellite tracking has not been done since listing under the MMPA.  The responses have been unacceptable, including lack of funding, staff time, and concern for the well-being of the animals.  While such concerns are understandable, satellite tracking of cetaceans is a scientifically acceptable, unobtrusive, relatively inexpensive and not incredibly time intensive method to provide a better understanding of the range, demographic movements, and trends in foraging habits.  We encourage NMFS to aggressively move forward with such research.

Currently, companies operating in the Inlet are working to protect belugas.  Many projects have biologists or employ whaling captains to serve as observers for belugas.  If one is spotted, the operations are stopped.  These actions are already in place and switching to an ESA listing will provide no added benefits to the recovery of the whales.  In addition, companies are currently spending upwards of $10 million to do research on beluga movement, habitat, and life history.  Much of this funding may come to a halt if a listing occurs and critical habitat is designated, as companies may choose to invest their time and money elsewhere.

The depleted status under the MMPA provides the authority to protect the Cook Inlet beluga whales.  Unfortunately, NMFS has not finalized its conservation plan as is required by the MMPA.  In the absence of a finalized federal conservation plan, RDC and its members commit to working with the State of Alaska in the development of a conservation plan.  Together with the state, we recommend the creation of a committee of affected stakeholders to identify and prioritize research needs.  This committee would be comprised of:

1. Municipality of Anchorage
2. Matanuska-Susitna Borough
3. Kenai Peninsula Borough
4. Resource Development Council (RDC)
5. Alaska Oil and Gas Association (AOGA)
6. Subsistence Hunting
7. Commercial Fishery
8. Recreational Fishery
9. Military
10. Transportation
11. Environmental Organization
12. University of Alaska
13. Alaska Department of Fish & Game

By working with the State, we will ensure the proper science is conducted to determine 1. The current population status of the Cook Inlet beluga whale; 2. Biological, ecological, or other information regarding this species; 3. Information related to the identification of essential physical or biological features for this species; and 4. Economic or other relevant impacts.

4.  Information related to the identification of critical habitat and essential physical or biological features for this species. 

Very little work has been done to identify primary constituent elements (PCE) for the Cook Inlet beluga whales.  We urge NMFS to immediately begin the research necessary to identify PCEs for Cook Inlet belugas, and to take the time needed to do it properly.  Rather than designate scientifically questionable critical habitat (CH), RDC encourages NMFS to pursue additional studies to accurately identify critical habitat in the future.  RDC recognizes funding may be a challenge for NMFS in light of its workload in Alaska.  RDC would welcome an opportunity to discuss this issue with NMFS and the Department of Commerce in the hope of making more resources available to the agency.

In addition, federal regulations governing CH designations mandate that, “…an area lacking a PCE may not be designated in the hope it will acquire one or more PCEs in the future.” Specific CH designation must be scientifically confirmed and deemed truly essential to the conservation of the species and not just presumed to be.

5.  Economic or other relevant impacts of designation of critical habitat. 

CH designation, though not proposed under this rule, will be forthcoming if this listing continues.  Ultimately, economic activities that are not impacting the recovery of the beluga whale will be negatively affected, litigated, or even stopped entirely, with no added benefit to the species.  In addition, NMFS staff will be forced to deal with this litigation and Section 7 consultations rather than focus its efforts on recovery plans and additional scientific studies. 

The ESA requires the consideration of the economic impact of critical habitat designation.  If indeed the Agency does determine listing is necessary, the Secretary has the authority to exclude areas 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 and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”  We encourage the exclusion of the entire Cook Inlet as it is clear with the mitigation and regulatory measures already in place under the MMPA, the extinction of the species will not likely occur.

As part of our comments, we reference the May 24, 2006 Federal Register decision not to list the California spotted owl under the ESA.  In its decision, the agency stated, “We found that the petitioned action was not warranted because the overall magnitude of the threats to the species did not rise to the level requiring protection under the Act.” The record of decision states the “best-available data do not show statistically significant declines.” According to NMFS, the Cook Inlet population of beluga whales has not shown statistically significant declines either.  The spotted owl decision concludes, “Impacts…from activities are not at a scale, magnitude, or intensity that warrants listing and that the overall magnitude of threats…does not rise to the level that requires the protections of the Act.” We encourage NMFS to consider this logic when making its decision.

Specific economic highlights and potential impacts of a listing follow for a number of Cook Inlet activities:

Energy Exploration and Development

Cook Inlet has current oil production of 17,000 BPD (total 7 million barrels in 2005).  Property taxes paid in 2006 to the Kenai Peninsula Borough (KPB) totaled $10 million and the producers Tesoro, and Agrium made up 9 of top 10 taxpayers.  In 2005, 340 jobs or 7.4% of KPB employment was involved in oil and gas development accounting for 18.7% of total borough payroll.  Marathon and ConocoPhillips have LNG export operations and Agrium currently has a fertilizer plant which utilizes natural gas.  Future uses by Agrium may employ coal from the Usibelli Coal Mine delivered from Port MacKenzie.  The Tesoro refinery processes all of the crude oil produced in Cook Inlet, producing jet fuel, diesel fuel, heating oil, as well as gasoline.  A 40,000- barrels-per-day pipeline links the refinery with the Anchorage International Airport, the top ranked air cargo facility in North America.  The refinery also supplies gasoline and diesel to Alaskans through more than 100 Tesoro-branded retail outlets.  Other companies including XTO, Pioneer, CIRI, and Enstar Natural Gas are engaged in Cook Inlet communities.

An ESA listing could lead to decreased exploration, the potential inability to conduct seismic operations, thereby decreasing the success of exploration activities, decreased development, decreased revenue to the state and boroughs, fewer jobs, and higher utility bills, as well as lower Permanent Fund Dividends for all Alaskans as 25% of all royalties are paid to the Permanent Fund.  Unfortunately, the proposed rule omitted consideration of Executive Order 13211 (May 18, 2001) which requires agencies to prepare “Statements of Energy Effects” if an agency action will affect energy supplies, distribution, or use.  We believe that an ESA listing of beluga whales in Cook Inlet will be a significant energy action.  An ESA listing, and subsequent critical habitat designation, will likely be accompanied by restrictions on oil and gas exploration and development as well as coal and shipping.

Chuitna Coal

The Chuitna Coal project is completing environmental and other studies as part of its NEPA analysis.  When constructed, the mine could create 350 new jobs, account for property taxes to Kenai Peninsula Borough of $100 million over 25 years, pay royalties to state of $300 million over 25 years, and a Mining License Tax of $120 million over 25 years.

An ESA listing could derail the project, impact vessel traffic, and at best has already increased costs.

Pebble

The Pebble Project is potentially one of the world’s largest copper/gold deposits.  Partners Northern Dynasty and Anglo American could employ thousands of rural Alaskans and bring economic diversification to an area of Alaska that desperately needs it.  Millions of dollars in state royalties will be paid over the life of the mine.

An ESA listing’s impact to Pebble is unknown as a mine plan has not yet been proposed.  However, power transmission, vessel transportation, and other factors could be impacted. 

Port of Anchorage Expansion Project

Annually, the Port of Anchorage handles 5 million tons of cargo and generates more than $750 million for the State’s economy.  Jet fuel is delivered through pipelines to military bases and the port stages 100% of the refined petroleum products from the state’s largest refinery.  In addition, it handles delivery of 80% of all fuel for the Ted Stevens International Airport, the busiest cargo airfield in the U.S.  Currently, it is in the third year of a Port Intermodal Expansion Project to accommodate larger ships, support increased military deployments, and keep pace with the steadily increasing movement of goods into and out of Alaska.

An ESA listing could stall continued expansion or increase the associated costs through potential mitigation measures.  The Port has a history of working closely with NMFS to choose construction techniques that reduce noise; monitor the Inlet for the presence of belugas and when belugas are present, stop in-water activities until the whales move to a safe distance; and conducting an underwater noise study from in-water work associated with the pile driving activities induced by the type of vibratory hammers the Port expects to use in the expansion project.

AWWU Discharges

AWWU handles the wastewater for Anchorage, particularly from the John M.  Asplund Wastewater Treatment Facility at Point Woronzof.  Studies have shown that their discharge is not impacting the marine environment or Cook Inlet beluga whales and fish.  EPA and NMFS scientists have concurred with these studies.

An ESA listing could require the expenditure of $400-$600 million dollars to upgrade AWWU’s facilities.

Knik Arm Bridge

The Knik Arm Bridge (KABATA) could provide a quick transportation link between the growing communities of the Mat-su and Anchorage.  This link could significantly reduce carbon emissions due to less travel time for commuters.  To date, KABATA has spent $2.5 million on beluga studies.

An ESA listing may impact investment from consortia and may lead to additional construction seasons.  Mitigation could include construction only when whales are not present in the Upper Inlet which could significantly increase the cost of the project. 

Commercial Fishing

Commercial fishing in upper Cook Inlet accounts for 5% of Alaska’s ex-vessel salmon values.  A mid-90s estimate of commercial salmon fishing supported an estimated 500 average annual jobs in harvesting, processing, and indirect employment producing $15 million in income (Source: ISER Report).

An ESA listing could threaten the entire Cook Inlet commercial fishery as the beluga’s primary food source is fish.  The draft conservation plan specifically states, “Whether the escapement into these rivers, having passed the gauntlet of the commercial fisheries, is sufficient for the well being of the CI beluga whales is unknown.  The amount of fish required to sustain this population is unknown.”

Sport Fishing

Sport fishing generated $415 million in total expenditures in Southcentral Alaska in 2003.  A total payroll of $171 million and 6,100 jobs resulted (State of Alaska).  685 licensed guide businesses existed in communities around Cook Inlet in 2006.

An ESA listing could threaten the entire Cook Inlet sport fishery as the beluga’s primary food source is fish.  In addition, the draft Conservation Plan indicates boating may have a minimal impact on the whales due to their high frequency noise which is more detectable to beluga whales.

Military

Alaska is home to both Elmendorf Air Force Base and the Army’s Fort Richardson.

An ESA listing could impact flight patterns, military operations, and ultimately threaten national security.

Community Development

Cook Inlet has a number of new and ongoing community development projects on the horizon.  These include but are not limited to expansion of the Anchorage International Airport, railroad expansion and maintenance, Chugach Electric’s electric distribution and submarine cable maintenance, the proposed Fire Island Wind Project, as well as tidal energy studies.  In addition to Anchorage, other Cook Inlet communities also discharge their wastewater into the Inlet.

An ESA listing could derail or increase the costs for any potential community development project.

Vessel Traffic

Nearly all of Alaska’s goods are brought into Anchorage on commercial vessels.  An ESA listing could increase costs by requiring observers on board, decrease efficiency by setting speed limits, and ultimately raise the cost of all goods, and subsequent services, paid for by Alaskans.

Tourism

Tourism is a growing industry in Southcentral Alaska.  Hotels, rental cars, other goods and services are consumed by visitors.

An ESA listing could result in decreased visitors to Southcentral Alaska as limitations are placed on sport fishing, sightseeing cruises, and other operations.  Local communities will be significantly impacted through decreased bed and rental taxes.

The impacts to whales from economic activities in the Cook Inlet are minimal.  In fact, according to the October 19, 1999 Federal Register, NMFS reviewed “existing information on fish runs, oil and gas activities, sewage problems, and other sources of contaminants”…and found … “the existing information suggests that beluga are not stressed by anthropogenic factors in Cook Inlet.” NMFS has no documented reason to believe this situation does not remain true today.

Interestingly, if indeed the population of Cook Inlet belugas was nearly 1,300 animals in 1979, given the life history of a beluga, most of these whales would have lived most if not all of their lives with oil and gas activity, NPDES discharges, commercial fishing, vessel traffic, coastal development, etc.  The whales have coexisted with all of these activities without significant impact for nearly half a century, and it wasn’t until pressure from the subsistence harvest that their numbers dramatically declined.

To that end, there are many activities planned for Cook Inlet.  Each of these may have a small impact on some beluga habitat.  However, like all animals, belugas have and will continue to adapt and as they have shown, will ultimately not be adversely impacted by these activities.  It is important to note these development activities will not occur in a regulatory vacuum, as they are strictly regulated under numerous state and federal environmental laws.  Belugas have been and will continue to be an important part of state, federal, and local oversight and the associated public process.

In conclusion, at the present time, we emphatically oppose listing the stock of Cook Inlet beluga whales as endangered under the ESA.  Such a listing, so soon after NMFS’ original designation under MMPA will only lead to additional burdens on economic and community development activities in and around Cook Inlet with no clear, corresponding benefit to the stock.  We strongly encourage NMFS to maintain the listing under the MMPA.  We request a responsible conservation plan, as required by the Marine Mammal Protection Act, be enacted or authority be granted the State of Alaska to do so, and we encourage additional research be done on the beluga’s primary constituent elements.

Thank you for the opportunity to comment.

Sincerely,

Resource Development Council for Alaska, Inc.