H.R. 4043 and the “No Otter Zone”

H.R. 4043 and the No Otter Zone

Dr. David A. Jessup testifies before the House Natural Resources Committee in Washington D.C. on April 19, 2012.

It’s hard not to get a bit nervous when you testify before a Congressional Committee in Washington D.C. It is, after all, the seat of government of the most powerful nation on earth at a time a great turmoil and upheaval. Even seemingly small issues, like whether sea otters will be allowed to expand their range, whether it is compatible with military preparedness, and with shellfish harvest and endangered shellfish recovery, can get some Republicans and Democrats pretty worked up. So the fact that my hand was shaking a bit when a subcommittee of the House Natural Resources Committee was called to session, and I was one of four witnesses in the dock was maybe understandable.

The hearing was about H.R. 4043 a bill named the Southern Sea Otter Military Readiness and Conservation Act. As the name implies the focus of the bill will try to assure that the sea otter population will recover, probably by expanding their mainland range southward, and are also allowed to continue to live around San Nicolas Island, an active Navy missile tracking base, and that national defense preparedness will not be compromised. With the current extremely partisan Congress we were warned we may get some tough questioning and our pedigrees carefully checked out.

H.R. 4043 was introduced by Rep. Elton Gallegly (R) of CA and, as written, is generally supported by Republicans and opposed by Democrats, not because either side is against sea otter recovery, or military preparedness, but because of the bill’s Section G, contains the requirement that a “no otter zone” south of Point Conception in the now over 2 decade old PL 99-625 would remain in place at least until USFWS could craft a plan that would “ensure the recovery of the southern sea otter, the recovery of the endangered black abalone, the endangered white abalone, and the preservation of shellfish harvests at current levels.” Trying to assure recovery of the sea otter would be difficult, but possible, “ensuring” everything in Section G is impossible times 3, or is that 4.

The first witness was Donald Schregardus, Deputy Assistant Secretary of the U.S. Navy. He made it clear that they support recovery of sea otters, that they have been cooperators for over 20 years, and that they would like clear language that allows sea otters around San Nicolas, to be managed under the Sikes Act as opposed to the Endangered Species Act or the Marine Mammal Protection Act, and that it be extended to the waters around San Clemente Island and off Camp Pendleton, should otters get there.

The second witness was Alexandra Pitts, Deputy Regional Director from the U.S. Fish & Wildlife Service (USFWS).  She explained a little about the listing of southern sea otters in 1977, the late 1980’s translocation to San Nicolas Island, made it clear that they had a good working relationship with the Navy and that their concern with the bill was the portion that would require them to do an Environmental Management Plan that would “ensure the recovery of the southern sea otter, the recovery of the ESA threatened black abalone, the threatened white abalone and also ensure continued harvest of shellfish in California at current levels.”

The third witness, Bruce Steele, a sea urchin diver and shellfish harvester spokesperson stated that USFWS was placing the recovery of two endangered abalone species in jeopardy, likely ending a multimillion dollar shellfish industry, walking away from its’ previous commitments (Public Law 99-625), and only managing for one species to the detriment of many others in the ocean.

I was the fourth witness and said that, the bill as proposed was supportive of both sea otter recovery and military preparedness, that the demise of both the black and white abalone had nothing to do with sea otters, that harvest of shellfish in California is not a Federal issue, that the proposed Environmental Management Plan was unfeasible, and that the “no otter zone” under PL 99-625 should be abandoned and otters allowed to expand naturally.

Who was telling the truth ? Why was this conflict in front of Congress ? What do sea otters have to do with military preparedness for cryin’ outloud ? That is a long story, probably more than can be covered in this blog post, but you can read about it in the text of the written testimony which are the long and more detailed versions of the oral testimonies. Most of it is in there.

Then the Congress members asked some questions…..The first question seemed to be designed to get USFWS to verbally commit to not just informing the Navy but fully consulting with them. Importantly, the Navy spokesman clearly stated that they supported natural expansion of the mainland range of the sea otter recovery. I was asked if I knew of any studies that predicted how long it might take for the otters to reach San Clemente Island or Camp Pendelton. I said, No, but that if the range expansion in the last 15 years was used as a yardstick, it could be a very long time. There has been little if any expansion of the whole population, the front of exploratory males had moved north and south over about a 30-40 mile area, but had not expanded further. The only change was that the core population of breeding females was now further south than it had been before.

When asked why I thought USFWS was now wanting to declare the sea otter translocations to San Nicolas a failure ?  I replied, they have little choice. It was clear for a long time no one was going to be happy whatever the decision, they put it off for almost 2 decades, until they were sued and the judge told them that had to make a decision. Based on the criteria set up under PL 99-625 at least two criteria for failure had been met, and none for success, although one could argue whether 50 sea otters with 10 pups produced last year is really a failure in reality, but if they are following the law, USFWS has no choice.

Lastly I was asked if we had learned anything from the failed sea otter tranlocations. I answered, yes, they won’t stay where you put them. Most wouldn’t stay on San Nicolas when brought there, and many wouldn’t stay north of Pt. Conception when relocated back there. That brought a lot of smiles and a few laughs.

It’s hard to say what will happen with H.R. 4043 now, but there seems to be a willingness to reconsider Section G. If it is removed or substantially altered the Democrats, conservationists and sea otter advocates may be willing to support it. If modified it could do what the title of the bill says it is supposed to do.

*********************  UPDATE: 5/16/2012  *********************

We have an update from today’s House Natural Resources Committee markup of HR 4043.

In Washington DC today the House Natural Resources Committee did a “markup” (accepted certain ammendments) on HR 4043 (Rep. Gallegly). As originally introduced this legislation would have prevented termination of zonal management under PL 99-625 until the development of an ecosystem management plan that ensured not only sea otter recovery, but also recovery of both black and white abalone, and sustained levels of commercial harvest for shellfish fisheries.

The original HR 4043 was amended by a second bill introduced today by Rep. Gallegly that includes most of the same provisions exempting the U.S. Navy from portions of the Endangered Species Act (ESA) with regard to sea otters around their bases at San Nicolas and San Clemente Islands and off Camp Pendelton. The new/amended bill removed the “ecosystem management plan” and fisheries provisions that were in “section g” of the original. But, it creates an exemption for incidental fisheries “take” of sea otters south of Point Conception. And, it requires that FWS coordinate sea otters recovery actions taken after the termination of zonal management with endangered shellfish (black and white abalone) recovery plans (which is a no-brainer), and “coordinate and cooperate with … the State of California to assist the State in continuing viable commercial harvest of State fisheries.”

Still known as HR 4043, the bill passed out of Committee, with all Republicans in favor, joined by Democrats Costa and Boren. Tomorrow it moves on to the House floor, where Rep. Gallegly will introduce it as an amendment to the House Defense Reauth Bill, HR 4310. The new bill is a significant improvement over the older version, in that it no longer undercuts US Fish and Wildlife Service ability/authority to terminate zonal management. It also seems to accept that natural sea otter range expansion must and will occur in southern California waters. But considerable concern has been expressed over legislated exemptions under ESA and MMPA for fisheries “take” of sea otters, and the precident this sets for other marine mammal and listed species.

Once the bill moves out of the House, it will move to the Senate for consideration where further modification may be possible. Stay tuned…


The archived hearing webcast and full witness testimony can be found here:


Related Links:

Friends of the Sea Otter Press Release on H.R. 4043

The Otter Project’s initiative, freetheotters.org

Recent Los Angeles Times editorial by sea otter expert Dr. James Estes on the importance of making science-based decisions regarding sea otter range expansion and resource conflicts.

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