Sens. Cruz, Manchin Lead Senators in Urging NOAA to Withdraw Proposal Threatening Domestic Energy Production

Letter

Dear Dr. Spinrad and Mr. Bernhart:

We write to provide comments and request the National Marine Fisheries Service (NMFS)
withdraw the proposed rule1 for designation of critical habitat for the Rice's whale. The
proposed rule as written fails to comply with important elements of the Endangered Species Act
(ESA) and would jeopardize domestic energy production, national security, and other important
interests.

The ESA's purpose is to provide adequate protections for the nation's iconic wildlife while
balancing the many uses of federal lands and waters. The ESA allows NMFS to designate an
area as a "critical habitat"--a specific geographic area that is essential to conservation of an
endangered or threatened species. 2 Designation of a critical habitat may lead to severe
restrictions of area activities, including those conducted by federal agencies, requiring a federal
permit or license, or that are federally funded. In designating any particular area as a critical
habitat, NMFS is required to use the best available science to consider the economic impact, the
impact on national security, and any other relevant impact.3 Unfortunately, NMFS failed to do
so in this case, vastly underestimating the proposed rule's economic and national security
impacts. Moreover, the proposed rule denies the public the opportunity to comment on the
studies used in the proposed rule's analysis.

1 Endangered and Threatened Species; Designation of Critical Habitat for the Rice's Whale, 88 Fed. Reg. 47453 (proposed July 24, 2023) (to be codified at 50 C.F.R. pts. 224 and 226).
2 16 U.S.C. § 1533(a)(3)(A)(i)
3 16 U.S.C. § 1533(b)(2)

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For one, the proposed rule claims, without adequate evidence, "that at the time of listing Rice's
whales occupied the Gulf of Mexico."4 NFMS claims this based on only a single sighting of a
Rice's whale off the central Texas coast in 2017 and de minimis possible acoustic detections in
the western and northern Gulf of Mexico.5 The reality is decades of surveys of the Gulf have
made very few observations of Rice's whales and only in limited geographic areas.6 This is both
legally and scientifically insufficient to demonstrate the Rice's whales occupied the habitat. The
proposed designation also fails to meet the ESA's requirement that a critical habitat be "specific
areas within"7 the broader geographical area occupied by the species. Instead, the rule would
designate more than 28,270 square miles of the Gulf of Mexico as a critical habitat, an area
larger than West Virginia.

The proposed rule also cites unreliable and incomplete sources for its conclusions. NMFS
inappropriately cites an unpublished, still in peer-review study for the modeling that serves as the
basis for including vast suitable areas of habitat of the Rice's whale outside of the smaller core
distribution area.8 Recently, NMFS was obligated to engage in a corrective rulemaking on a
separate issue due to miscalculations in the supporting analysis--something that would have
been made clear to NMFS earlier had it allowed public comment on the supporting analysis.9
That same risk is present with this proposed rule. NFMS cannot be sure of the accuracy and
integrity of the data it used to define this vast critical habitat area before the study and its peer
review are complete. If NMFS chooses to rely on this study, it should wait until the study is
complete and has been peer reviewed then allow public comment on a proposed rule that is based
upon completed work, so the public can verify its use and accuracy.

NMFS's economic analysis in the proposed rule similarly falls short. It vastly underestimates
costs for consultations under the ESA and fails to account for potentially significant project
delays, modifications, and other economic costs resulting from the critical habitat designation.
Further, the economic impact analysis completely dismisses the potential for modifications to
federally permitted activities and their associated economic costs. The proposed critical habitat
area stretches across many important oil and gas leases, shipping channels for major U.S. ports,
and commercial and recreational fishing grounds--all activities that are likely to be dramatically
curtailed if this rule is finalized. Yet the proposed rule completely disregards the potential
impact on these industries. NMFS estimates designating the Gulf of Mexico's entire 28,270.65

4 88 Fed. Reg. at 47460.
5 Id.
6 Soldevilla, M. (2022) Rice's Whales in the Northwestern Gulf of Mexico: Call Variation and Occurrence Beyond the Known Core Habitat. Endangered Species Research. Vol. 48: 155--174. https://www.intres.com/articles/esr2022/48/n048p155.pdf
7 16 U.S.C. § 1532(5)(A)(i) (emphasis added).
8 Garrison, L. (2023) Gulf of Mexico Marine Assessment Program for Protected Species (Gommapps): Marine Mammals, Volume 2, Appendix C: Gulf of Mexico Marine Mammal Spatial Density Models. https://www.govinfo.gov/app/details/GOVPUB-I-0224db7668cf91ca1725a05f82a22661
9 National Marine Fisheries Service, National Oceanic and Atmospheric Administration. (2022, February 15). Update 2.15.22. https://media.fisheries.noaa.gov/2022-02/GOM_RevisedRuleStatement_OPR1_0.pdf

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square miles as a critical habitat will have "incremental administrative costs" of $240,000 over
ten years--an absurdly low assessment.10

The Central and Western Gulf of Mexico serves as an energy hub for the nation. Federal
offshore oil production accounts for 15 percent of total U.S. crude oil production.11 Together,
there are over 345,00012 workers servicing the offshore energy industry at any single moment in
time. These businesses operate on a continuous 24 hour, 7 days a week rotation. To illustrate
the potential costs of a critical habitat designation, on April 7, 2023, NMFS published a "Petition
to Establish a Vessel Speed Restriction and Other Vessel-Related Measures to Protect Rice's
Whales."13 On July 21, 2023, in litigation between NMFS and the Sierra Club and others,
attorneys representing NMFS filed a stipulated agreement for Rice's whale protections through
the not-yet determined Rice's whale critical habitat area. These stipulations included removing
significant acreage from offshore oil and gas Lease Sale 261, placing a mandatory 10-knot speed
limit for oil and gas related vessels, and forbidding travel through the area at night or in other
low visibility conditions. Yet the proposed rule for designation of critical habitat estimates
consultations under the ESA will only cost the oil and gas industry $8,100 per year.14

The proposed rule may also jeopardize the nation's military readiness and national security by
imposing additional restrictions on training activities at the Eglin Gulf Test and Training Range
("Eglin Gulf Range"). The U.S. Air Force uses the Eglin Gulf Range to train fighter pilots,
maintain operational readiness, and test other military capabilities. NMFS's proposed critical
habitat area significantly overlaps with the test range of the Eglin Gulf Range, potentially placing
restrictions on the Air Force's use of the area for that purpose and hurting military readiness.
Again, NMFS largely disregards this potential impact, estimating a cost to the military of $5,500
per year.15

Furthermore, the Gulf of Mexico lands one-third of the nation's seafood, contributing over $9
billion in commercial fishing activity.16 The waters of the Gulf of Mexico also attract millions of
recreational anglers who contribute over $3 billion directly to the economy every year.17 For
decades, these mariners have been safely and efficiently balancing their role in domestic food
production with protecting a diverse array of marine life. If the area is designated, potential
limitations such as vessel speed and time of day restrictions would be unnecessary and possibly
even dangerous, jeopardizing not only the economic vitality of this region, but also the safety of

10 88 Fed. Reg. 47465.
11 U.S. Energy Information Administration. Gulf of Mexico Fact Sheet. Retrieved September 28, 2023, from https://www.eia.gov/special/gulf_of_mexico
12 National Ocean Industries Association. The Economic Impacts of the Gulf of Mexico Oil and Natural Gas Industry. Retrieved September 28, 2023, from https://www.noia.org/gulfimpact2020
13 Endangered and Threatened Species; Petition To Establish a Vessel Speed Restriction and Other Vessel-Related Measures To Protect Rice's Whales, 88 Fed. Reg. at 20846 (proposed Apr. 7, 2023) (to be codified at 50 C.F.R. pt. 224).
14 88 Fed. Reg. 47465.
15 Id.
16 National Marine Fisheries Service, National Oceanic and Atmospheric Administration. (2020). Fisheries Economics of the United States. https://media.fisheries.noaa.gov/2023-09/FEUS-2020-final2-web-0.pdf
17 Id.

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mariners and anglers. Given the recent lawsuits and petitions against fishing activities filed by
environmental groups on every coast, it is reasonable to be concerned that additional restrictions
would also follow this critical habitat designation.

For these reasons, we request NMFS withdraw its proposed rule. If the service insists on moving
forward with a critical habitat designation, then that proposed rule must comply with the ESA, be
based on the best available science, designate a reduced critical habitat area within the total
occupied area, and contain proper analysis of the economic costs and national security
implications.

Respectfully,
___________________

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