[House Report 112-606]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-606
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
MILITARY READINESS AND SOUTHERN SEA OTTER CONSERVATION ACT
_______
July 17, 2012.--Ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4043]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4043) to amend title 10, United States Code, to
direct the Secretary of Defense to establish Southern Sea Otter
Military Readiness Areas for national defense purposes, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Military Readiness and Southern Sea
Otter Conservation Act''.
SEC. 2. SOUTHERN SEA OTTER MILITARY READINESS AREAS.
(a) Establishment of the Southern Sea Otter Military Readiness
Areas.--Chapter 136 of title 10, United States Code, is amended by
adding at the end the following new section:
``Sec. 2283. Establishment of the Southern Sea Otter Military Readiness
Areas
``(a) Establishment.--The Secretary of Defense shall establish
Southern Sea Otter Military Readiness Areas for national defense
purposes, consisting of--
``(1) the area that includes Naval Base Ventura County San
Nicolas Island and Begg Rock, and the adjacent and surrounding
waters within the following coordinates:
``N. Latitude/W. Longitude
``3327.8,/11934.3,
``3320.5,/11915.5,
``3313.5,/11911.8,
``3306.5,/11915.3,
``3302.8,/11926.8,
``3308.8,/11946.3,
``3317.2,/11956.9,
``3330.9,/11954.2,;
``(2) that area that includes Naval Base Coronado San
Clemente Island and the adjacent and surrounding waters running
parallel to shore to 3 nautical miles from the high tide line
designated by 33 C.F.R. part 165 on May 20, 2010, as the San
Clemente Island 3NM Safety Zone; and
``(3) that area that includes Marine Corps Base Camp
Pendleton and the adjacent waters within the following
coordinates:
``Latitude/W. Longitude
``3326.6,/11738.9,
``3321.3,/11745.8,
``3356.2,/11739.7,
``336.5,/11728.5,
``3310.2,/11723.7,
``3311.8,/11723.2,
``3326.6,/11738.9,.
``(b) Activities Within the Southern Sea Otter Military Readiness
Areas.--
``(1) Incidental takings under endangered species act of
1973.--Sections 4 and 9 of the Endangered Species Act of 1973
(16 U.S.C. 1533, 1538) shall not apply with respect to the
incidental taking of any southern sea otter in the Southern Sea
Otter Military Readiness Areas in the course of conducting a
military readiness activity.
``(2) Incidental takings under marine mammal protection act
of 1972.--Sections 101 and 102 of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1371, 1372) shall not apply with respect
to the incidental taking of any southern sea otter in the
Southern Sea Otter Military Readiness Areas in the course of
conducting military readiness activities.
``(3) Treatment as species proposed to be listed.--For
purposes of any military readiness activity, any southern sea
otter while within the Southern Sea Otter Military Readiness
Areas shall be treated for the purposes of section 7 of the
Endangered Species Act of 1973 (16 U.S.C. 1536) as a member of
a species that is proposed to be listed as an endangered
species or a threatened species under section 4 of the
Endangered Species Act of 1973 (16 U.S.C. 1533).
``(c) Removal.--Nothing in this section or any other Federal law
shall be construed to require that any southern sea otter located
within the Southern Sea Otter Military Readiness Areas as of the
effective date of this section or thereafter be removed from the Areas.
``(d) Revision or Termination of Exceptions.--The Secretary of the
Interior may revise or terminate the application of subsection (b) if
the Secretary, in consultation with, and with the concurrence of, the
Secretary of the Navy, determines that military activities occurring in
the Southern Sea Otter Military Readiness Areas are substantially
impeding southern sea otter conservation or the return of southern sea
otters to optimum sustainable population levels.
``(e) Monitoring.--
``(1) In general.--The Secretary of the Navy, in consultation
and in cooperation with the Secretary of the Interior, shall
monitor the Southern Sea Otter Military Readiness Areas not
less than every year to evaluate the status of the southern sea
otter population.
``(2) Reports.--Within 18 months after the effective date of
this section and every three years thereafter, the Secretaries
of the Navy and the Interior shall jointly report to Congress
and the public on monitoring undertaken pursuant to paragraph
(1).
``(f) Relationship to Other Federal Law.--Except as provided in
subsections (a) and (b), nothing in this section shall be construed as
repealing, superseding, or modifying any provision of Federal law.
``(g) Definitions.--In this section:
``(1) Incidental taking.--The term `incidental taking' means
any take of a southern sea otter that is incidental to, and not
the purpose of, the carrying out of an otherwise lawful
activity.
``(2) Optimum sustainable population.--The term `optimum
sustainable population' means, with respect to any population
stock, the number of animals that will result in the maximum
productivity of the population or the species, keeping in mind
the carrying capacity of the habitat and the health of the
ecosystem of which they form a constituent element.
``(3) Southern sea otter.--The term `southern sea otter'
means any member of the subspecies Enhydra lutris nereis.
``(4) Take.--The term `take'--
``(A) when used in reference to activities subject to
regulation by the Endangered Species Act of 1973 (16
U.S.C. 1531-1544) shall have the meaning given such
term in that statute; and
``(B) when used in reference to activities subject to
regulation by the Marine Mammal Protection Act of 1972
(16 U.S.C. 1361-1423h), shall have the meaning given
such term in that statute.
``(5) Military readiness activity.--The term `military
readiness activity' has the meaning given that term in section
315(f) of the Bob Stump National Defense Authorization Act for
Fiscal Year 2003 (Public Law 107-314; 116 Stat. 2509; 16 U.S.C.
703 note), and includes all training and operations of the
Armed Forces that relate to combat, and the adequate and
realistic testing of military equipment, vehicles, weapons, and
sensors for proper operation and suitability for combat use.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following:
``2283. Establishment of the Southern Sea Otter Military Readiness
Areas.''.
(c) Conservation and Management Actions.--Section 1 of Public Law 99-
625 (16 U.S.C. 1536 note) is amended by adding at the end the
following:
``(g) Conservation and Management Actions.--If the Secretary issues a
final rule ending the management plan authorized under subsection (b)
through the termination of the regulations implementing such plan--
``(1) the Secretary, in planning and implementing recovery
and conservation measures under the Act to allow for the
expansion of the range of the population of the sea otter,
shall coordinate and cooperate with--
``(A) the Secretary of the Navy;
``(B) the Secretary of Commerce regarding recovery
efforts for species listed under the Act; and
``(C) the State of California to assist the State in
continuing viable commercial harvest of State
fisheries; and
``(2) interaction with sea otters in the course of engaging
in fishing in any State fishery south of Point Conception,
California, under an authorization issued by the State of
California, shall not be treated as a violation of section 9 of
the Act for incidental take or of the Marine Mammal Protection
Act of 1972.''.
Purpose of the Bill
The purpose of H.R. 4043, as ordered reported, is to amend
title 10, United States Code, to direct the Secretary of
Defense to establish Southern Sea Otter Military Readiness
Areas for national defense purposes.
Background and Need for Legislation
The California or Southern sea otter was listed as
threatened under the Endangered Species Act (ESA) in 1977. The
threatened listing made the sea otter a depleted species under
the Marine Mammal Protection Act (MMPA). At the time of the
listing, the sea otter population was located north of Point
Conception along the central portion of the California coast.
Concerns were raised that the concentrated population could be
at risk of extinction from a catastrophic event, such as an oil
spill. To assist the sea otter in its recovery, the sea otter
recovery team recommended the creation of an experimental
population and the establishment of translocation and
management zones in its 1982 recovery plan. The recommendation
would allow for the expansion of the experimental population
and the continuance of commercial fishing and military
activities. The recovery plan had the support of the Navy and
fishing interests, since their activities would be protected
under the plan. Legislation was needed to implement the
recovery plan actions since the MMPA did not allow for the
creation of an experimental population.
Public Law 99-625, enacted in 1986, allowed the Secretary
of the Interior to develop and implement, through regulations,
a plan for the relocation of an experimental population of
California sea otters and the creation of translocation and
management zones. The Act provided that if the translocation
plan was established, sea otters in each zone would be treated
as candidate species. Military activities in the translocation
zone would not be in violation of the incidental take
provisions of the ESA and fishing activities in the management
zone would not be in violation of the incidental take
provisions of the ESA and the MMPA. In addition, the U.S. Fish
and Wildlife Service (FWS) was required to move sea otters in
the management zone back to the translocation area to protect
existing commercial fisheries.
Beginning in 1987, FWS captured and relocated 140 southern
sea otters from the parent population to the translocation zone
located around San Nicolas Island. In 1991, translocation
efforts were halted due to issues with the translocated animals
either swimming back to the parent population or not surviving
the transfer. Between 1987 and 1993, 24 sea otters were removed
from the management zone, located south of Point Conception,
and returned to the parent population. In 1993, removals of sea
otters from the management zone were also halted. In 2010, 46
independent southern sea otters were counted at San Nicolas
Island.
On April 3, 2003, FWS issued a Final Revised Recovery Plan
for the southern sea otter which updated the 1982 recovery
plan. The 2003 recovery plan reflected recovery team
recommendations that the translocation program was not the best
way to accomplish the objective to increase the range and sea
otter population numbers. The plan recommended FWS declare the
translocation program a failure and instead allow for the
natural expansion of the population.
In October 2005, FWS issued a draft Supplemental
Environmental Impact Statement (SEIS) on the translocation
program. The preferred alternative of the draft SEIS is to
terminate the southern sea otter translocation and management
zones and allow the sea otters in those areas to remain. In
2009, FWS was sued by two environmental organizations under the
Administrative Procedure Act alleging an unreasonably delayed
decision on the translocation program.
As part of a November 2010 settlement agreement of the
lawsuit, FWS issued a proposed rule and a revised draft SEIS on
August 26, 2011. The rule proposes to declare the translocation
program a failure. The rule, if finalized, would override the
regulations that establish and govern the implementation of the
translocation program and the provisions of Public Law 99-625
that allow military and fishing activities to not be in
violation of incidental take provisions of the ESA and MMPA.
H.R. 4043, the Military Readiness and Southern Sea Otter
Conservation Act, will retain the candidate species status for
military activities occurring in the translocation zone.
Specifically, the bill would create Southern Sea Otter Military
Readiness Areas in these areas: Naval Base Ventura County San
Nicolas Island and Begg Rock and specified surrounding waters
designated by certain coordinates; Naval Base Coronado San
Clemente Island and adjacent and surrounding waters running
parallel to shore to 3 nautical miles designated as the San
Clemente Island 3 NM Safety Zone; and Marine Corps Base Camp
Pendleton and adjacent waters specified by certain coordinates.
Within the military readiness areas, the California sea
otter would be treated as a candidate species under the ESA and
the requirement for permits under the incidental take sections
of the ESA (sections 4 and 9) and the MMPA (sections 101 and
102) would not apply to military activities within the
designated areas. The bill would not require the removal of sea
otters from the military readiness areas.
The Secretary of the Interior would be authorized to revise
or terminate the military readiness areas, in consultation and
with the concurrence of the Secretary of the Navy, if the
Secretary of the Interior determines the military activities
are substantially impeding southern sea otter conservation or
the population's growth to optimum sustainable population
levels.
The bill would require the Secretary of the Navy to monitor
the military readiness areas, not less than every three years,
to measure the growth or decline of the sea otter population.
Within 24 months after the effective date of the bill, and
every three years after, the Navy would report to Congress on
its monitoring activities.
FWS and the National Marine Fisheries Service, in
cooperation with the Marine Mammal Commission, would be
required to develop an ecosystem management plan for waters off
the California coast to ensure the recovery of southern sea
otters, the recovery of endangered black and white abalone, and
continue commercial harvest of shellfish fisheries at levels
approximating current harvests.
In addition, the bill would require FWS to assess the
carrying capacity of the habitat for the southern sea otters,
including impacts of water quality on the carrying capacity and
thecauses of water quality degradation. FWS would also be
required to continue implementing the relocation and management plan
for the southern sea otter as authorized in Public Law 99-625, until
the ecosystem management plans and assessments are completed.
At a Subcommittee on Fisheries, Wildlife, Oceans and
Insular Affairs hearing, the Navy and FWS testified in support
of the military readiness areas. FWS also testified that it
opposed a provision in the bill pertaining to the development
of the described ``Ecosystem Management Plan'' due in part to
concerns that none of the agencies can ``ensure'' the recovery
of a species as required in the introduced bill.
To address concerns raised, during Full Committee
consideration of the bill, the Committee adopted an amendment
offered by Congressman John Fleming (R-LA) to strike the
provision requiring an ecosystem management plan, carrying
capacity provisions and continued implementation of the
translocation plan. The amendment substituted language that
would be triggered only if FWS issues a final rule to end the
translocation program. The Fleming amendment would require FWS,
when planning and implementing ESA recovery and conservation
actions for the southern sea otter, to coordinate and cooperate
with the Navy, the Secretary of Commerce and the State of
California. The amendment would also retain existing exemptions
for state fisheries south of Point Conception. While the sea
otter would be allowed to naturally expand its range, state
fisheries south of Point Conception would not be in violation
of incidental take provisions in the ESA and MMPA. If state
fisheries were to take a sea otter, the State of California has
authority under state law to close them. Lastly, the amendment
would modify the monitoring section to include the Secretary of
the Interior, to require annual monitoring, and to require the
first report in 18 months of the bill's enactment.
Committee Action
H.R. 4043 was introduced on February 15, 2012, by
Congressman Elton Gallegly (R-CA). The bill was referred
primarily to the Committee on Armed Services, and in addition
to the Committee on Natural Resources. Within the Natural
Resources Committee, the bill was referred to the Subcommittee
on Fisheries, Wildlife, Oceans, and Insular Affairs. On April
19, 2012, the Subcommittee held a hearing on the bill. On May
16, 2012, the Full Natural Resources Committee met to consider
the bill. The Subcommittee on Fisheries, Wildlife, Oceans, and
Insular Affairs was discharged by unanimous consent.
Congressman John Fleming (R-LA) offered amendment designated
.001 to the bill. Congressman Gregorio Sablan (D-MP) offered
amendment designated .001 to the Fleming amendment; the Sablan
amendment was not adopted by voice vote. The amendment offered
by Congressman Fleming was adopted by a roll call vote of 19 to
12, as follows:
The bill, as amended, was then adopted and ordered
favorably reported to the House of Representatives by a
bipartisan roll call vote of 24 to 13, as follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 4043--Military Readiness and Southern Sea Otter Conservation Act
H.R. 4043 would establish three areas off the coast of
southern California to accommodate certain training needs of
the Navy and Marine Corps. Since 1987, the U.S. Fish and
Wildlife Service (FWS) has conducted an experiment to relocate
southern sea otters to those areas in an effort to increase the
otter population. That program has not succeeded and FWS plans
to terminate it. While the program was in effect, naval
operations in those areas were exempt from compliance with the
incidental takings provisions of the Endangered Species Act and
the Marine Mammal Protection Act as they applied to the
southern sea otter. (An incidental taking refers to the harming
or killing of an endangered species that results from an
otherwise lawful activity.) When the program is ended, the
Department of the Navy will have to conduct certain
environmental studies and obtain incidental takings permits for
southern sea otters before it operates in those training areas.
H.R. 4043 would exempt the department from those incidental
takings provisions, reducing administrative efforts and
compliance costs. The bill would require the Navy to annually
monitor the otter population in the established zones and to
report to the Congress every third year, the results of that
monitoring. Navy monitoring of the otter population would
supplant similar efforts currently conducted by the U.S.
Geological Survey, albeit on a less frequent basis. Based on
information from the Department of the Navy, CBO estimates that
implementing the bill would have no significant impact on the
federal budget.
Enacting H.R. 4043 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 4043 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is David Newman.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. Based on
information from the Department of the Navy, CBO estimates that
implementing the bill would have no significant impact on the
federal budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill, as ordered reported, is to amend title
10, United States Code, to direct the Secretary of Defense to
establish Southern Sea Otter Military Readiness Areas for
national defense purposes.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 10, UNITED STATES CODE
* * * * * * *
SUBTITLE A--GENERAL MILITARY LAW
* * * * * * *
PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 136--PROVISIONS RELATING TO SPECIFIC PROGRAMS
Sec.
2281. Global Positioning System.
* * * * * * *
2283. Establishment of the Southern Sea Otter Military Readiness Areas.
* * * * * * *
Sec. 2283. Establishment of the Southern Sea Otter Military Readiness
Areas
(a) Establishment.--The Secretary of Defense shall establish
Southern Sea Otter Military Readiness Areas for national
defense purposes, consisting of--
(1) the area that includes Naval Base Ventura County
San Nicolas Island and Begg Rock, and the adjacent and
surrounding waters within the following coordinates:
N. Latitude/W. Longitude
33+27.8,/119+34.3,
33+20.5,/119+15.5,
33+13.5,/119+11.8,
33+06.5,/119+15.3,
33+02.8,/119+26.8,
33+08.8,/119+46.3,
33+17.2,/119+56.9,
33+30.9,/119+54.2,;
(2) that area that includes Naval Base Coronado San
Clemente Island and the adjacent and surrounding waters
running parallel to shore to 3 nautical miles from the
high tide line designated by 33 C.F.R. part 165 on May
20, 2010, as the San Clemente Island 3NM Safety Zone;
and
(3) that area that includes Marine Corps Base Camp
Pendleton and the adjacent waters within the following
coordinates:
Latitude/W. Longitude
33+26.6,/117+38.9,
33+21.3,/117+45.8,
33+56.2,/117+39.7,
33+6.5,/117+28.5,
33+10.2,/117+23.7,
33+11.8,/117+23.2,
33+26.6,/117+38.9,.
(b) Activities Within the Southern Sea Otter Military
Readiness Areas.--
(1) Incidental takings under endangered species act
of 1973.--Sections 4 and 9 of the Endangered Species
Act of 1973 (16 U.S.C. 1533, 1538) shall not apply with
respect to the incidental taking of any southern sea
otter in the Southern Sea Otter Military Readiness
Areas in the course of conducting a military readiness
activity.
(2) Incidental takings under marine mammal protection
act of 1972.--Sections 101 and 102 of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1371, 1372) shall not
apply with respect to the incidental taking of any
southern sea otter in the Southern Sea Otter Military
Readiness Areas in the course of conducting military
readiness activities.
(3) Treatment as species proposed to be listed.--For
purposes of any military readiness activity, any
southern sea otter while within the Southern Sea Otter
Military Readiness Areas shall be treated for the
purposes of section 7 of the Endangered Species Act of
1973 (16 U.S.C. 1536) as a member of a species that is
proposed to be listed as an endangered species or a
threatened species under section 4 of the Endangered
Species Act of 1973 (16 U.S.C. 1533).
(c) Removal.--Nothing in this section or any other Federal
law shall be construed to require that any southern sea otter
located within the Southern Sea Otter Military Readiness Areas
as of the effective date of this section or thereafter be
removed from the Areas.
(d) Revision or Termination of Exceptions.--The Secretary of
the Interior may revise or terminate the application of
subsection (b) if the Secretary, in consultation with, and with
the concurrence of, the Secretary of the Navy, determines that
military activities occurring in the Southern Sea Otter
Military Readiness Areas are substantially impeding southern
sea otter conservation or the return of southern sea otters to
optimum sustainable population levels.
(e) Monitoring.--
(1) In general.--The Secretary of the Navy, in
consultation and in cooperation with the Secretary of
the Interior, shall monitor the Southern Sea Otter
Military Readiness Areas not less than every year to
evaluate the status of the southern sea otter
population.
(2) Reports.--Within 18 months after the effective
date of this section and every three years thereafter,
the Secretaries of the Navy and the Interior shall
jointly report to Congress and the public on monitoring
undertaken pursuant to paragraph (1).
(f) Relationship to Other Federal Law.--Except as provided in
subsections (a) and (b), nothing in this section shall be
construed as repealing, superseding, or modifying any provision
of Federal law.
(g) Definitions.--In this section:
(1) Incidental taking.--The term ``incidental
taking'' means any take of a southern sea otter that is
incidental to, and not the purpose of, the carrying out
of an otherwise lawful activity.
(2) Optimum sustainable population.--The term
``optimum sustainable population'' means, with respect
to any population stock, the number of animals that
will result in the maximum productivity of the
population or the species, keeping in mind the carrying
capacity of the habitat and the health of the ecosystem
of which they form a constituent element.
(3) Southern sea otter.--The term ``southern sea
otter'' means any member of the subspecies Enhydra
lutris nereis.
(4) Take.--The term ``take''--
(A) when used in reference to activities
subject to regulation by the Endangered Species
Act of 1973 (16 U.S.C. 1531-1544) shall have
the meaning given such term in that statute;
and
(B) when used in reference to activities
subject to regulation by the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361-1423h),
shall have the meaning given such term in that
statute.
(5) Military readiness activity.--The term ``military
readiness activity'' has the meaning given that term in
section 315(f) of the Bob Stump National Defense
Authorization Act for Fiscal Year 2003 (Public Law 107-
314; 116 Stat. 2509; 16 U.S.C. 703 note), and includes
all training and operations of the Armed Forces that
relate to combat, and the adequate and realistic
testing of military equipment, vehicles, weapons, and
sensors for proper operation and suitability for combat
use.
* * * * * * *
----------
SECTION 1 OF PUBLIC LAW 99-625
AN ACT To improve the operation of certain fish and wildlife programs.
SECTION 1. TRANSLOCATION OF CALIFORNIA SEA OTTERS.
(a) * * *
* * * * * * *
(g) Conservation and Management Actions.--If the Secretary
issues a final rule ending the management plan authorized under
subsection (b) through the termination of the regulations
implementing such plan--
(1) the Secretary, in planning and implementing
recovery and conservation measures under the Act to
allow for the expansion of the range of the population
of the sea otter, shall coordinate and cooperate with--
(A) the Secretary of the Navy;
(B) the Secretary of Commerce regarding
recovery efforts for species listed under the
Act; and
(C) the State of California to assist the
State in continuing viable commercial harvest
of State fisheries; and
(2) interaction with sea otters in the course of
engaging in fishing in any State fishery south of Point
Conception, California, under an authorization issued
by the State of California, shall not be treated as a
violation of section 9 of the Act for incidental take
or of the Marine Mammal Protection Act of 1972.
DISSENTING VIEWS
Southern sea otters originally ranged from Baja California,
Mexico to Northern California or Oregon. During the 1700s and
1800s they were nearly driven to extinction by the fur trade,
which was more damaging to the southern population, leaving
only a small surviving unit in Monterey California with 50
individuals in 1914.
In 1977, the southern sea otter was listed under the
Endangered Species Act primarily because of its reduced range
and small population size. The U.S. Fish and Wildlife Service
(FWS) implemented a plan to create a buffer population outside
the present range to protect the species in the event of such a
disaster. The law required the designation of a translocation
zone, where sea otters would be introduced, and a management
zone, which would surround the translocation zone and would be
maintained ``otter-free'' by means of non-lethal removals.
Incidental take restrictions pursuant to the Endangered Species
Act (ESA) and Marine Mammal Protection Act (MMPA) were not to
be applied in the management zone. The Service established the
Southern Sea Otter Translocation Plan in 1987, selecting San
Nicolas Island as the preferred reintroduction site. This
established a ``no-otter'' management zone south of Point
Conception California. Otters that swam south of San Nicolas
Island into this zone were returned to the northern location.
H.R. 4043 would continue incidental take exemptions for
southern sea otters from the ESA and MMPA for military
activities within established military readiness areas to
facilitate training. This will continue exemptions that are
currently in place under the Southern Sea Otter Translocation
Plan around San Nicolas Island and would additionally include
waters farther south where recovering sea otter populations are
expected to expand their range. The FWS has testified in
support of these exemptions.
In 1993, the FWS discontinued the capture and relocation of
otters under the Southern Sea Otter Translocation Plan because
of concerns about impacts to individual animals and the
population as a whole. A 2000 biological opinion confirmed the
translocation program to be harmful to sea otters and the FWS
formally declared that it would no longer relocate otters in
2001.
In 2005, the FWS issued a Draft Supplemental Environmental
Impact Statement (DSEIS) which included a draft evaluation of
the program indicating it was a failure and an opinion that the
program had direct and indirect adverse effects on the survival
and recovery of the southern sea otter. Alternatives studied in
the DSEIS included ending sea otter management in the
management zone and leaving the translocated individuals on San
Nicolas Island. The public widely supported this alternative.
In 2009, The Otter Project and the Environmental Defense Center
of Santa Barbara filed suit against the Service over its
failure to issue a final rule concerning sea otter management
in the ``no-otter'' zone. This case was settled in November,
2010 and required the Service to prepare a Draft Environmental
Impact Statement and failure determination. These have been
published and the FWS has issued a draft failure determination
for the program based on pre-established criteria. Under the
settlement, the Service must publish a proposed rule (which
they have done) that terminates the program, and publish a
final Environmental Impact Statement and failure determination
by December, 2012.
As amended by Chairman Fleming, this bill would give
fishermen working south of Point Conception, California
incidental take exemptions from the ESA and the MMPA
indefinitely upon the termination of the otter translocation
program. This would remove any ability of the Fish and Wildlife
Service or any other agency to address problems that may arise
with otter recovery as a result of interaction with fisheries.
Although sea otter range expansion could have effects on
commercial fisheries, otters are not currently interacting with
these fisheries and scientists predict this expansion will take
place over a period of decades.
Ranking Member Sablan offered an amendment that would
remove the misguided fisheries provisions while preserving the
exemptions that are critical to the Navy's operations. This
amendment was defeated, with the Majority voting in opposition.
H.R. 4043 would not put into place any meaningful actions
for southern sea otter conservation and, in fact, would harm
efforts to recover this species. For these reasons, we oppose
H.R. 4043 as reported.
Edward J. Markey.
Rush D. Holt.
Paul Tonko.
Grace F. Napolitano.
Madeleine Z. Bordallo.
Raul M. Grijalva.
Ben Ray Lujan.