Frequent Questions: Humpback Whale Critical Habitat

Once a species is listed under the Endangered Species Act, NOAA Fisheries is required to designate critical habitat for that species to the maximum extent prudent and determinable. The final rule, published on DATE, designates critical habitat for three distinct population segments (DPS) of humpback whales that were listed in 2016—the Western North Pacific DPS, the Central America DPS, and the Mexico DPS.

What is critical habitat?

Critical habitat is defined in section 3 of the Endangered Species Act and is only designated for species listed as threatened or endangered under the Act. Critical habitat is a regulatory tool for managing federal activities and is used to help conserve listed species. Critical habitats are specific areas used by the species during any stage of its life that contain habitat features essential to the conservation of that species. Critical habitat can also be areas that are not currently used by the species but that are essential for its conservation. Critical habitat is not a sanctuary, preserve, or closed area.

What kind of habitat features are considered when determining critical habitat?

Critical habitat is identified based on physical or biological features that occur in specific areas and that are essential to supporting the life-history needs of the species and that may require special management considerations or protection.

These habitat features may include, for example water characteristics, soil type, geological features, sites, prey, vegetation, and symbiotic species. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics.

How does NOAA Fisheries designate critical habitat?

When designating critical habitat, we are required to use the best scientific data available, in an open public process, and within specific timeframes. We must also consider economic impacts, impacts on national security, and other relevant impacts of the designation. We may exclude any particular area from the critical habitat if we determine that the benefits of that exclusion outweigh the benefits of specifying the particular area as part of the critical habitat. However, we cannot exclude a particular area if, based on the best scientific and commercial information available, we determine that failure to designate that area as critical habitat will result in the extinction of the species concerned.

What is the effect of a critical habitat designation?

When critical habitat is designated, it triggers a regulatory requirement under section 7(a)(2) of the ESA:  federal agencies must ensure that any actions they authorize, fund, or undertake are not likely to destroy or adversely modify the value of the critical habitat as a whole for the conservation of the particular listed species. This is the only direct regulatory effect of critical habitat.

Federal agencies are required to consult with NOAA Fisheries whenever their project or action may affect a listed species or designated critical habitat. If a proposed federal action is likely to have an adverse effect on critical habitat and/or listed species, we work with the agency to identify actions to minimize those adverse effects. These section 7 consultation requirements only apply to activities that involve federal funding, permitting, or authorization.

Will the humpback whale critical habitat designations affect subsistence harvest of fish or tribal fisheries?

The final critical habitat designations do not include any restrictions on subsistence harvest of fishes or tribal fisheries. Although we cannot prejudge the outcome of any potential future section 7 consultation on these activities, based on the relatively low harvest volumes of humpback whale prey species in any federally-managed subsistence or tribal fishery, we do not currently foresee any management changes being triggered as a result of this rule.

Will the humpback whale critical habitat designations affect federal fisheries?

Any change to the management of federal fisheries as a result of humpback whale critical habitat would be determined through a formal section 7 consultation process and in coordination with the relevant federal Fishery Management Council. The humpback whale critical habitat rule itself does not include any restrictions on commercial fishing activities. While we are not anticipating any changes to federal fisheries that target humpback whale prey, we cannot prejudge the outcome of future section 7 consultations, which must be based on the best available scientific information. Some listed species, such as Steller sea lions, have needed additional regulatory measures to protect them from commercial fishing activities. These activities may reduce prey availability or cause disturbance near rookeries. We are not considering any similar restrictions for humpback whales.

Will the humpback whale critical habitat designations affect state fisheries?        

This rule has no direct effect on state fisheries. Critical habitat protections only apply to federal actions. Activities that are not funded, authorized, or carried out by a federal agency are not subject to these protections.

Where are the humpback whale critical habitats located?

The critical habitats are located on portions of the continental shelf off the coasts of Alaska, Washington, Oregon, and California.