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Notice of Policy Regarding Capture and Removal of Southern Sea Otters in a Designated Management Zone
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 22, 2001 (Volume 66, Number 14)]
[Notices]
[Page 6649-6652]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja01-155]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Notice of Policy Regarding Capture and Removal of Southern Sea
Otters in a Designated Management Zone
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Statement of policy.
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SUMMARY: This notice advises the public that we, the U.S. Fish and
Wildlife Service (Service), have determined that we will not capture
and remove southern sea otters from the southern California sea otter
management zone pending completion of our ongoing reevaluation of the
southern sea otter translocation program including the preparation of a
supplemental environmental impact statement (EIS) and release of a
final evaluation of the translocation program.
On July 19, 2000, we finalized a biological opinion in accordance
with section 7(a)(2) of the Endangered Species Act of 1973, as amended
(ESA), evaluating containment of southern sea otters, including the
capture and removal of otters from a designated management zone. That
biological opinion is based on substantial new information on the
population status, behavior, and ecology of the southern sea otter, and
concludes that continued containment of southern sea otters will likely
jeopardize the continued existence of the southern sea otter. On July
27, 2000 (65 FR 46172), we published a notice of intent to prepare a
supplemental EIS on the southern sea otter translocation plan.
We have determined, based on our recent biological opinion, that
containment of southern sea otters, at present, is not consistent with
the requirement under the Act to avoid jeopardy to the species. We are
in the process of reevaluating the translocation program and expect to
complete a supplemental EIS and finalize our evaluation of the
translocation program, including evaluation of the failure criteria
developed for the program, by December 2002. We have provided and will
continue to provide for public participation during that process. Upon
completion of these documents, we will determine whether the southern
sea otter translocation plan needs to be modified (including under what
circumstances containment of southern sea otters can resume) or
terminated to make it consistent with the survival and recovery needs
of the species.
FOR FURTHER INFORMATION CONTACT: Mr. Greg Sanders, U.S. Fish and
Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road,
Suite B, Ventura, California, 93003-7726, (telephone: 805/644-1766;
facsimile: 805/644-3958).
SUPPLEMENTARY INFORMATION:
Background
On January 14, 1977 (42 FR 2968), we listed the southern sea otter
(Enhydra lutris nereis) as a threatened species under the ESA on the
basis of its small population size, greatly reduced range, and the
potential risk from oil spills. We established a recovery team for the
species in 1980 and approved a recovery plan on February 3, 1982. In
the recovery plan, we identified the translocation of southern sea
otters to a remote location in order to establish a second colony of
otters as an effective and reasonable recovery action, although we
acknowledged that a translocated southern sea otter population could
impact shellfish fisheries that had developed in areas formerly
occupied by southern sea otters. Goals cited in the recovery plan
included: minimizing risk from potential oil spills; establishing at
least one additional breeding colony outside the then-current southern
sea otter range; and compiling and evaluating information on historical
distribution and abundance, available but unoccupied habitat, and
potential fishery conflicts.
The purpose of the translocation program was to establish southern
sea otters in one or more areas outside the otters' then-current range
to minimize the possibility of a single natural or human-caused
catastrophe, such as an oil spill, adversely affecting a significant
portion of the population. Ultimately, it was anticipated that
translocation would result in a larger population size and a more
continuous distribution of animals throughout the southern sea otter's
former historical range. We viewed translocation as important to
achieve recovery and to identify the optimum sustainable population
(OSP) level for the southern sea otter as required under the Marine
Mammal Protection Act (MMPA).
Translocation of a listed species to establish experimental
populations is specifically authorized under section 10(j) of the ESA.
However, the southern sea otter is protected under both the ESA and the
MMPA, and the MMPA contains no similar translocation provisions. For
southern sea otters, this dilemma was resolved by the passage of Public
Law (P.L.) 99-625 (Fish and Wildlife Programs: Improvement; Section 1.
Translocation of California Sea Otters) on November 7, 1986, which
specifically authorized development of a translocation plan for
southern sea otters administered in cooperation with the affected
State.
If the Secretary of the Interior chose to develop a translocation
plan under P.L. 99-625, the plan was to include: the number, age, and
sex of sea otters proposed to be relocated; the manner in which sea
otters were to be captured, translocated, released, monitored, and
protected; specification of a zone into which the experimental
population would be introduced (translocation zone); specification of a
zone surrounding the translocation zone that did not include range of
the parent population or adjacent range necessary for the recovery of
the species (management zone); measures, including an adequate funding
mechanism, to isolate and contain the experimental population; and a
description of the relationship of the implementation of the plan to
the status of the species under the ESA and determinations under
section 7 of the ESA. The purposes of the management zone were to
facilitate the management of southern sea otters and containment of the
experimental population within the translocation zone and to prevent,
to the maximum extent feasible, conflicts between the experimental
population and other fishery resources within the management zone. Any
sea otter found within the management zone was to be treated as a
member of the experimental population. The Service was required to use
all feasible non-lethal means to capture sea otters in the management
zone and return them to the translocation zone or to the range of the
parent population.
On March 6, 1987, we completed an intra-Service biological opinion
that evaluated translocation of southern sea otters to San Nicolas
Island, our preferred translocation site. That biological opinion
analyzed effects on the parent population caused by removal of southern
sea otters from the population for translocation and the effects on the
species of containment (removal) of otters from the management zone.
The proposed translocation plan was found to be a well-designed
recovery action that maximized the
[[Page 6650]]
opportunity for success while minimizing negative impacts on the parent
population. We concluded that the southern sea otter translocation plan
would not likely jeopardize the continued existence of the species.
In May 1987, we finalized an EIS which analyzed the impacts of
establishing a program to translocate southern sea otters from their
then-current range along the central coast of California to areas of
northern California, southern Oregon, or San Nicolas Island off the
coast of southern California. San Nicolas Island was identified as our
preferred alternative. A detailed translocation plan meeting the
requirements of Pub. L. 99-625 was included as an appendix to the final
EIS.
Regulations to implement Pub L. 99-625 were finalized August 11,
1987 and are found at 50 CFR 17.84(d). They provide details of the
translocation plan, including criteria for determining whether the
translocation program would be considered a failure. Waters surrounding
San Nicolas Island were designated as the translocation zone, and all
waters south of Point Conception, California, with the exception of
waters surrounding San Nicolas Island, were designated as the
management zone.
On August 19, 1987, as part of our cooperative actions with the
State of California, we signed a Memorandum of Understanding with the
California Department of Fish and Game (CDFG) providing for cooperative
research and management efforts to promote recovery of the southern sea
otter population in California. The agreement also included provisions
to minimize conflicts between southern sea otters, existing shellfish
fisheries, and other users of marine resources through containment of
sea otters that might enter the management zone.
We implemented the translocation plan and began moving groups of
southern sea otters from the coast of central California to San Nicolas
Island starting on August 24, 1987. In December 1987, in coordination
with the CDFG, we began capturing and moving sea otters that entered
the designated management zone in an effort to minimize conflicts
between sea otters and fisheries within the management zone and to
facilitate the management of sea otters at San Nicolas Island.
We released 140 southern sea otters at San Nicolas Island between
August 1987 and March 1990. As of March 1991, approximately 14 sea
otters (10 percent) were thought to remain at the island. Some sea
otters died as a result of translocation; many swam back to the parent
population, some moved into the management zone; and the fate of more
than half the sea otters taken to San Nicolas is unknown. In 1991, we
stopped translocating sea otters to San Nicolas Island, due to low
retention and survival. However, we continued monitoring the sea otters
remaining in the translocation zone. Sea otter surveys at San Nicolas
Island are now conducted by the Biological Resources Division of the
U.S. Geological Survey on a bimonthly basis.
Sea otters were captured and removed from the management zone until
February 1993. At that time, two sea otters that had been recently
captured in the management zone were found dead shortly after their
release in the range of the parent population. A total of four sea
otters were known or suspected to have died within 2 weeks of being
moved from the management zone. We suspended all sea otter capture
activities in the management zone to evaluate sea otter capture and
transport methods. Results of the evaluation were inconclusive, but we
remained concerned that capture and transport of sea otters found in
the management zone could result in the death of some animals. Between
December 1987 and February 1993, 24 sea otters were captured and
removed from the management zone and returned to the parent range. Of
these, 2 sea otters were captured twice in the management zone after
being moved to the northern end of the parent range, suggesting that
capture and relocation were ineffective. We discontinued containment
efforts after 1993 in response, in part, to our concerns about the
unexpected mortalities of otters experienced during or shortly
following their removal from the management zone. We also recognized
that techniques at the time, which proved to be less effective than
originally predicted and were labor intensive, were not a feasible
means of containing otters. In 1997, CDFG announced that they also
would no longer be able to assist with sea otter captures in the
management zone.
A group of approximately 100 southern sea otters moved from the
parent range into the northern end of the management zone in 1998. At
the same time, range-wide counts of the southern sea otter population
indicated a decline of approximately 10 percent since 1995. Given the
decline in the southern sea otter population, we asked the Southern Sea
Otter Recovery Team, a team of biologists with special expertise in sea
otter ecology, for a recommendation regarding the capture and removal
of sea otters in the management zone. The recovery team recommended
that we not move sea otters from the management zone to the parent
population because moving large groups of sea otters and releasing them
within the parent range would be disruptive to the social structure of
the parent population.
In August 1998, we held two public meetings to provide information
on the status of the translocation program, identify actions we
intended to initiate, and solicit general comments and recommendations.
At these meetings, we announced that we would reinitiate consultation
under section 7 of the ESA for the containment program and begin the
process of evaluating failure criteria established for the
translocation plan. The technical consultant group for the Southern Sea
Otter Recovery Team, composed of representatives from the fishery and
environmental communities as well as State and Federal agencies, was
also expanded to assist with evaluating the translocation program. We
provided updates on the translocation program and status of the
southern sea otter population to the California Coastal Commission,
Marine Mammal Commission, and California Fish and Game Commission in
1998 and 1999.
In March 1999, we distributed our draft evaluation of the
translocation program to interested parties. The draft document
included the recommendation that we declare the translocation program a
failure because fewer than 25 sea otters remained in the translocation
zone and reasons for the translocated otters' emigration or mortality
could not be identified and/or remedied. We received substantive
comments from agencies and the public following release of the draft
for review.
We prepared a draft biological opinion evaluating southern sea
otter containment and distributed it to interested parties for comment
on March 19, 1999. We completed a final opinion on July 19, 2000. Our
reinitiation of consultation was prompted by the receipt of substantial
new information on the population status, behavior, and ecology of the
southern sea otter that revealed effects of containment that were not
previously considered. Specifically, the biological opinion noted that
in 1998 and 1999 southern sea otters moved into the management zone in
much greater numbers than had occurred in prior years; analysis of
carcasses indicated that southern sea otters were being exposed to
environmental contaminants and diseases which could be affecting the
health of the population; range-wide counts of southern sea otters
found
[[Page 6651]]
numbers were declining; recent information, in particular the
implications of the effects of the Exxon Valdez oil spill, indicated
that sea otters at San Nicolas Island would not be isolated from the
potential effects of a single large oil spill; and the capture and
release of large groups of sea otters was likely to result in
substantial adverse effects on the parent population. The Service
concluded that reversal of the southern sea otter population decline
and expansion of the southern sea otter's population distribution are
essential to its survival and recovery. The Service further concluded
that continuation of the containment program, while restricting the
southern sea otter to the area north of Point Conception, will likely
exacerbate recent sea otter population declines and increase
vulnerability to a catastrophic oil spill or other man-made or natural
stochastic events, and, therefore, likely jeopardize the continued
existence of the species.
On February 8, 2000, a draft revised recovery plan for the southern
sea otter was released for public review and comment (65 FR 6221).
Based on the observed decline in abundance and shift in distribution of
the southern sea otter population, the recovery team recommended in the
draft revised recovery plan that it would be in the best interest of
the southern sea otter to declare the experimental translocation of
southern sea otters to San Nicolas Island a failure and discontinue
maintenance of the management zone. The recovery team's recommendation
will be fully evaluated through our ongoing NEPA process on the
translocation action.
Current Status
In 4 of the past 5 years, population counts have shown a decline in
southern sea otters. Survey data collected in spring 2000 were
encouraging, with the number of southern sea otters counted approaching
the highest recorded count for the population. However, more survey
data are needed to determine whether the spring 2000 count was an
anomaly or the beginning of a positive trend in southern sea otter
population growth. In spite of more than 140 sea otters having been
translocated and evidence of reproduction, the population of sea otters
at San Nicolas Island currently comprises only approximately 20 adults.
To date, the southern sea otter translocation program has not met
the primary goal of establishing a viable population of southern sea
otters at San Nicolas Island. In the translocation plan we determined
that a self-sustaining colony size of 150 southern sea otters would be
necessary to consider the population at San Nicolas Island viable.
Based on trends since the translocation program began and current
circumstances, the best scientific information indicates that a
population of this size may not be attainable.
On July 27, 2000 (65 FR 46172), we published in the Federal
Register a notice of intent to prepare a supplemental EIS on the
southern sea otter translocation program. The need for a supplemental
EIS is based on changed circumstances and new information since the
original EIS on translocation of southern sea otters was prepared in
1987. Public scoping meetings were held on August 15 and 17, 2000, with
the purpose of soliciting information to be used in defining the
overall scope of the supplemental EIS, identifying significant issues
to be addressed, and identifying alternatives to be considered. The
technical consultants to the Southern Sea Otter Recovery Team met to
discuss the supplemental EIS on September 26, 2000. We expect a draft
supplemental EIS to be completed and released for public comment by
September 2001 and a final document to be completed approximately a
year later. The draft evaluation of the translocation program released
in March 1999 will be finalized following further opportunity for
public participation in the decision-making process and completion of
the EIS.
Public Law 99-625 and the ESA
Section 7 of the ESA mandates that no Federal agency--including the
U.S. Fish and Wildlife Service--may take any action that is likely to
jeopardize the continued existence of a listed species. The
translocation plan we developed in 1987 pursuant to the discretionary
authority vested in the Secretary of the Interior was a Federal action
for which consultation was required. Therefore, prior to implementing
the translocation program, we conducted an internal consultation under
section 7. That internal consultation resulted in a biological opinion
dated March 6, 1987, in which we concluded that implementation of the
translocation plan as proposed was not likely to jeopardize the
southern sea otter. Specifically we concluded that implementing zonal
management of sea otters by establishing a translocation zone
surrounding San Nicolas Island to which otters would be moved,
establishing a surrounding ``otter free'' management zone south of
Point Conception from which otters would be removed, demarcating the
southward limit of the parent range at Point Conception to allow for
range expansion by the parent population, removal and translocation of
up to 250 sea otters from the parent population to San Nicolas Island,
and containment of otters by non-lethal means and their return to the
parent population or San Nicolas Island would not likely jeopardize the
continued existence of the species. Had we concluded in our 1987
biological opinion that implementation of the translocation plan, or
any of its components, would result in jeopardy to the sea otter, the
program could not have legally proceeded as implementation would have
violated the ESA.
Our implementing regulations at 50 CFR 402.16(b) require any
Federal agency to reinitiate consultation if new information reveals
that an action may affect a listed species in a manner or to an extent
not previously considered. Significant new information that has come to
light since inception of the translocation plan has included evidence
of: (1) Recent annual declines in the parent population; (2) exposure
of otters to contaminants; (3) movement of significant numbers of
otters from the parent range into the management zone; (4) potential
effects of a single, large oil spill on the entire sea otter
population, including San Nicolas Island; and (5) substantial adverse
impacts to the parent population likely to result from reintroduction
of large numbers of contained otters. Pursuant to our section 7
responsibilities, we reinitiated consultation in 1999 on the
containment component of the translocation plan to consider the
significant new information about the potential effects of containment
on the parent population of southern sea otters. In our July 2000
biological opinion we concluded that containment of sea otters from the
management zone and reintroduction back into the parent population
would likely jeopardize the continued existence of the species. In
light of the determination from our July 2000 biological opinion, we
may not proceed with containment until the factors that may cause
jeopardy to the southern sea otter are addressed.
Our determination is consistent with both the structure and intent
of Pub. L. 99-625. The statute as written recognizes the applicability
of the ESA generally--and section 7 in particular--to the translocation
plan throughout its various subsections (e.g., sections 1(b)(6), 1(c),
1(d), 1(e), and 1(f)). Further, the intent of Pub. L. 99-625 was to
allow the Secretary to implement what was then identified as a critical
recovery action under the 1982 recovery plan ,
[[Page 6652]]
and any implementation contrary to this recovery goal would contradict
the purpose of the statute. Indeed, we have determined that containment
under the present circumstances could lead to extinction of the
species. Finally, apart from the specific references to section 7
throughout Pub. L. 99-625, the statute's discretionary grant of
authority to the Secretary to develop and implement a translocation
plan in the first instance brings the Secretary's affirmative decision
to develop--and to continue to implement--the plan squarely within the
universe of federal actions to which section 7 of the ESA applies.
Having concluded under section 7 that implementation of the containment
component of the plan would likely jeopardize the sea otters' continued
existence, we may not proceed with that aspect of the translocation
plan.
Without the legal protection afforded by section 7, actions
undertaken by the Service, an authorized State agency, or an authorized
agent of either the Service or such agency to effect containment are
not insulated from liability under section 9 of the ESA and
implementing regulations, which prohibit take of listed species unless
otherwise authorized or exempt. Section 1(f) of Pub. L. 99-625 declares
that no act by the Service or authorized State agency personnel to
effect the translocation or management of a sea otter under the
translocation plan may be treated as a violation of the ESA or the
Marine Mammal Protection Act. However, the protective shield provided
by this section no longer applies where the Service has determined that
a component of the underlying plan itself--containment--is likely to
jeopardize the continued existence of the sea otter. Under the present
circumstances, any act by Service or authorized State agency personnel
to remove otters from the management zone and relocate them to the
parent population that results in take of an otter in either the
management zone or the parent population would be in violation of
section 9 of the ESA and subject to appropriate enforcement action.
Service's Position
Our mission is to work with others to conserve, protect, and
enhance fish, wildlife, and plants and their habitats for the
continuing benefit of the American people. The southern sea otter is
threatened with extinction. The southern sea otter translocation plan
was developed to help this species recover by establishing an
experimental population. We have yet to establish an experimental
population, the southern sea otter continues to be threatened with
extinction, and we have concluded that implementing the containment
provisions of the southern sea otter translocation plan under the
current circumstances will likely jeopardize the continued existence of
the species.
We are preparing a supplemental EIS to evaluate new information
regarding the translocation program and the status of the sea otter and
to consider whether modifications to the southern sea otter
translocation program as presently structured, or termination of the
program, would be appropriate. We will also finalize our evaluation of
the translocation program, including analysis of the failure criteria
established for the program. Containment of southern sea otters under
the current circumstances would violate our duty under the Endangered
Species Act to avoid any action that would likely jeopardize the
continued existence of the species. Therefore, we will not capture and
remove sea otters from the management zone until we complete our
reevaluation of the translocation program unless, during this interim
period, new information or changed circumstances indicate that
containment no longer poses likely jeopardy to the species. We will
continue to solicit public input and comments regarding the
translocation plan as part of our NEPA review and any rulemaking
process.
Dated: January 16, 2001.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 01-1799 Filed 1-17-01; 3:23 pm]
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