Comment on FR Doc # E9-13314

VIA Regulations.gov July 8, 2009 Public Comments Processing Attn: FWS–R7–ES–2008–0105 Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, Suite 222 Arlington, VA 22203 Re: Comments on the Designation of Critical Habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter (Enhydra lutris kenyoni), notice of availability of draft economic analysis and amended required determinations (74 Fed. Reg. 27271) Thank you for the opportunity to submit comments on the U.S. Fish and Wildlife Service’s (“the Service”) Proposed Designation of Critical Habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter (Enhydra lutris kenyoni) draft economic analysis and amended required determinations (74 Fed. Reg. 27271). These comments are submitted on behalf of the Center for Biological Diversity (“the Center”). The Center is a non-profit organization with more than 40,000 members in Alaska and across the nation, dedicated to protecting endangered species and wild places through science, policy, education, and environmental law. On February 17, 2009, the Center submitted comments on the proposed designation of critical habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter. The Center’s comments focused on the lack of adequate habitat proposed for the species. We incorporate those comments by reference here and submit the following additional comments regarding the draft economic analysis, proposed critical habitat, and areas considered for exclusion. The Draft Economic Analysis Does Not Properly Account for Benefits of Designation The Endangered Species Act (ESA) requires the Service to consider the “economic impact” of proposed critical habitat designations. 16 U.S.C. § 1533(b)(2). “Economic impact,” as it is generally understood, includes both costs and benefits of a proposed action. See Sierra Club v. Sigler, 695 F.2d 957, 976 (5th Cir. 1983) (invalidating an EIS under NEPA because an agency quantified the benefits of a project but, when it came to discussing costs, “pleaded a lack of data” and provided “only cursory and conclusory discussion”); see also OMB Guidelines 2003 at 5517 (“You must measure total benefits and costs against the same baseline”). The draft economic analysis, however, rejects any meaningful consideration or accounting of the benefits of critical habitat designation. For example, designation may result in increased protection of nearshore habitat essential to the conservation of the sea otter. This protection can produce ancillary economic benefits, such as protecting ecosystem services, increasing recreational and wildlife visitation opportunities and tourism, and concurrent conservation of other species. Ancillary economic benefits assist the persistence of local economies, and buffer the long-term, adverse effects of boom-bust economics associated with industrial development. There are accepted methods for monetizing these benefits, yet the draft economic analysis dismisses any notion of attempting to quantify the ancillary benefits of critical habitat designation. Draft Economic Analysis at 18:28-29 (“Ancillary benefits that affect markets are not anticipated in this case and therefore are not quantified.”) There is no basis for excluding all such benefits from the scope of the analysis. On the contrary, some ancillary benefits are reasonably foreseeable, and methods for quantifying them are readily available. Even if it is difficult to monetize some benefits, that difficulty does not absolve the Service of the obligation to include these benefits in the analysis where they are quantifiable. See OMB Guidelines 2003 at 5518 (agencies should monetize costs and benefits wherever possible; where impossible, agency should “explain why and present all available quantitative information.”) Proposed Critical Habitat for the Sea Otter is Inadequate As we stated in our February 17 comment letter, the proposed critical habitat is inadequate because the primary constituent elements (PCEs) are too narrowly defined, which leads to the exclusion of essential conservation areas beyond 100 m from shore and deeper than 20 m. Studies cited in our comment letter, as well as the February 17 comments of the Marine Mammal Commission, show that otters regularly use the areas beyond 100 m from shore and deeper than 20 m. Furthermore, the Service failed to properly consider climate change in its designation of critical habitat. Climate change will cause a variety of impacts to sea otters, including loss of prey foods due to ocean acidification and increased predation by killer whales, which are losing their traditional food sources. See Comments of the Defenders of Wildlife, Friends of the Sea Otter, Oceans Public Trust Initiative, and World Wildlife Fund (Feb. 17, 2009), incorporated here by reference. The Service Should Reject All Proposed Exclusions The Service lists a number of areas it is considering for exclusion based on the recommendations of the Department of the Navy, the State of Alaska, the Resource Development Council, and the Alaska Sea Otter and Stellar Sea Lion Commission. 73 Fed. Reg. at 27273. The Service should reject these exclusions. The Service’s draft economic analysis shows that there will not be a significant economic impact from the critical habitat designation of these areas. Furthermore, as noted above and in our February 17 comment letter, the current proposed habitat is already too narrow to provide for the conservation and recovery of the sea otter. Conclusion For the foregoing reasons, the Service should: (1) revise its economic analysis to include benefits of habitat designation; (2) expand critical habitat past 100 m from shore and 20 m deep; and (3) reject all proposed exclusions. Thank you for consideration of these comments. Sincerely, Rebecca Noblin Staff Attorney Center for Biological Diversity Anchorage, AK