**WRITTEN TESTIMONY OF**

**D. ROBERT LOHN**

**REGIONAL ADMINISTRATOR, NORTHWEST REGION**

**NATIONAL MARINE FISHERIES SERVICE**

**NATIONAL OCEANIC AND ATMOSPHERIC**

**ADMINISTRATION**

**U.S. DEPARTMENT OF COMMERCE**

**LEGISLATIVE HEARING ON H.R. 1769**

**BEFORE THE**

**COMMITTEE ON NATURAL RESOURCES**

**SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS**

**UNITED STATES HOUSE OF REPRESENTATIVES**

**AUGUST 2, 2007**

**Introduction**

Good morning, Madam Chair and members of the Subcommittee. Thank you for
the opportunity to present views on California sea lion predation on
at-risk, threatened, and endangered salmon and steelhead and H.R. 1769,
which was introduced by Representative Baird for himself, and
Representatives Hastings, Dicks, and Walden. This bill would establish a
temporary expedited procedure for removing California sea lions to
protect salmonids in the Columbia River.

I am Bob Lohn, Regional Administrator of the Northwest Region in NOAA's
National Marine Fisheries Service (NMFS). I am a long-time resident of
the Pacific Northwest and have been in my present position since 2001. I
am very familiar with the range of issues related to increasing
populations of California sea lions along the West Coast of the United
States and with the many efforts to promote the recovery of Pacific
salmonids (salmon and steelhead).

NOAA is responsible for protecting many marine mammal populations along
the West Coast under the Marine Mammal Protection Act (MMPA) and for
promoting the recovery of many fish, marine mammals, sea turtles, and
other species listed as threatened or endangered under the Endangered
Species Act. This bill is important to NOAA since it affects sea lion
and salmonid conservation and our mission goal to protect, restore, and
manage the use of coastal and ocean resources through an ecosystem
approach.

NOAA agrees that lethal take of certain pinnipeds may be warranted to
promote the conservation and recovery of certain stocks of salmonids or
other fish. We also agree that this should be achieved though a
well-considered process to determine which pinnipeds would have to be
removed to provide appropriate protection for the at-risk fish stocks.
We note that the existing MMPA section 120 contains a process for this
purpose; however, as we have indicated in a prior report to Congress,
this process as currently written has been difficult to implement
effectively and could be improved. We recognize that H.R. 1769 was
introduced to address these kinds of concerns, but the bill, as
currently drafted, would neither fully realize the goals of the MMPA,
nor meet the objectives expressed in the bill. We believe changes can be
made to the existing section 120 process consistent with the intent of
this legislation that could, when combined with sound principles of
wildlife management, achieve the goals and objectives of the MMPA. We
look forward to working with the Committee on this issue.

NOAA is committed to working with our partners to find a process that
address all concerns, but we have not yet come to consensus on specific
text to make the necessary changes to the MMPA to address conflict with
pinnipeds, especially California sea lions; however, the following
principles should be considered: (1) The process should provide NMFS
with sufficient flexibility to allow the agency to respond quickly to
pinniped predation on listed fish stocks or those approaching threatened
or endangered status; (2) NMFS should act carefully and thoughtfully so
any efforts to reduce pinniped predation do not result in unforeseen
problems; (3) Any removal of pinnipeds should be included in a
comprehensive plan to promote recovery of the affected fish stocks; and
(4) Only the minimum number of pinnipeds should be removed to effect
adequate protection of fish.

In my remarks today, I will describe the ecological and management
context of pinniped predation on salmonids, discuss NOAA's previous
experience in addressing conflicts with increasing populations of
pinnipeds under existing authorities, and provide views on H.R. 1769.

**Ecological and Management Context**

I am pleased to report that the MMPA has been a highly successful tool
in the recovery of most stocks of seals and sea lions along the West
Coast. California sea lions have increased from a few thousand in the
1920s to more than 230,000 today. An analysis of pup counts in
California through 2005 suggests the population likely achieved its
optimum sustainable population level in 1997 and may currently be at or
near its carrying capacity. Populations of harbor seals and elephant
seals are healthy and in the Pacific Northwest we have seen steady
improvements in the eastern stock of Steller sea lions, which are listed
as threatened under the Endangered Species Act.

After breeding in southern California rookeries, male sea lions migrate
north in search of food. Some of these animals will be content feeding
along the California coast, while others will disperse as far north as
Alaska. During winter and spring, more than 1,000 California sea lions
may be found in the lower Columbia River. Some of these animals make
their way up the Columbia River to Bonneville Dam (nearly 150 miles
up-river) to feed on spring smelt and salmonid runs.

In contrast to robust West Coast seal and sea lion populations, many
West Coast salmonid populations are doing poorly. Of 52 population
groups of salmonids recognized as spawning in California, Oregon, Idaho,
and Washington, 27 are listed as threatened or endangered under the
Endangered Species Act, and 13 of these groups migrate through the
Columbia River.

Many dams and locks on the West Coast have facilities to pass fish up
and down stream.  Upstream migrating fish generally congregate below
these facilities while they locate the entrance to fish ladders.  This
creates predation opportunities that do not exist in free flowing
portions of rivers.

With passage of the MMPA amendments of 1994, Congress recognized the
limits of non-lethal deterrence of pinnipeds as a means to protect
at-risk, threatened, and endangered salmonids along the West Coast.
These amendments included MMPA section 120, which allows states to apply
for authority to lethally remove California sea lions or Pacific harbor
seals to protect salmonids. These amendments also required NMFS to
prepare a report to Congress addressing the impacts of pinniped
predation on the recovery of threatened and endangered salmonid fishery
stocks and on broader impacts to coastal ecosystems of Washington,
Oregon, and California. NMFS completed the requisite scientific
investigation for this report in March 1997 and submitted its report to
Congress in February 1999 (copies of this report are provided for the
record).

The report to Congress described the potential for pinniped impacts on
the decline or recovery of at-risk fish stocks in Washington, Oregon,
Idaho, and California, and the expanding pinniped conflict with human
economic and recreational activity in the affected areas. As a result of
these findings, NMFS recommended that Congress amend the MMPA to include
a site-specific management regime including the use of lethal and
non-lethal removal of California sea lions and harbor seals. The report
also recommended that Congress consider a selective re-instatement of
the intentional lethal removal of California sea lions and Pacific
harbor seals that are caught incidentally by commercial fishing
operations, and suggested further investigation of non-lethal deterrence
methods and the collection of information needed to allow more informed
decision-making for appropriate conservation of pinnipeds and other
living marine resources.

NMFS has testified before this Subcommittee twice in support of the
recommendations of the 1999 report. Joe Scordino (retired, Deputy
Regional Administrator, NMFS Northwest Region) represented NMFS at a
hearing in Washington, D.C., in October 2001, and Jim Lecky (Director,
Office of Protected Resources) represented NMFS at a field hearing in
San Diego, California, in August 2003.

**Reducing Sea Lion Predation on Salmonids**

Besides the 1994 addition of section 120, which permits states to apply
for lethal removal authority, the MMPA includes two potential
alternatives for authorizing lethal taking of marine mammals in response
to marine resource management challenges such as those I have described.
Section 101 provides authority for the Secretary to waive the moratorium
on taking marine mammals and adopt suitable regulations that permit
taking by lethal methods, and section 109 provides Secretarial authority
to transfer management authority for marine mammals to a state. Prior to
transferring management authority, the Secretary must find that the
state has developed and will implement a conservation and management
program (which could include lethal taking of marine mammals) for a
particular species. Each of these alternatives, however, is a lengthy
process and likely unsuitable for use in response to emergent
situations.

NMFS has received two section 120 applications from states to lethally
remove California sea lions to protect salmonids. In 1994, the State of
Washington requested authority to remove selected sea lions to protect
winter run Lake Washington steelhead at Ballard Locks in Seattle. During
a years-long effort, NMFS, the State of Washington, and the
Pinniped--Fishery Interaction Task Force employed a number of non-lethal
deterrence actions such as acoustic barriers, flow modification, trap
and hold, and trap and haul before NMFS approved the state's request for
lethal removal of five specific animals in March 1996. None of those
animals were lethally removed but three were relocated to Sea World of
Orlando for permanent captivity and public display. California sea lion
predation events on steelhead returning to Lake Washington subsided
following the 1996 steelhead return due to (1) the removal of the
worst-offending animals, (2) continued implementation of a non-lethal
deterrence strategy, and (3) the lack of returning steelhead available
for predation.

In November 2006, the States of Oregon, Washington, and Idaho applied to
NMFS for authority to lethally remove California sea lions at Bonneville
Dam to protect threatened or endangered salmonids in the Columbia River.
The States' application noted that sea lion predation on salmonids at
the dam is a relatively recent phenomenon with only occasional sightings
of sea lions at or near the dam prior to 2000. In 2000, predation events
began to increase and have been documented since 2002, when 31 animals
were identified feeding at the dam. More recently, the number of sea
lions at the dam has increased to around 100 animals per year. It is
estimated that in 2007, California sea lions consumed about 4 percent of
returning adult spring Chinook salmon immediately below the dam. This
level of predation is based on documented predation events in the
vicinity of Bonneville Dam. At this location, predation events are
particularly intense due to the constriction of migrating adult salmon
and steelhead passage can be observed from the dam structure. It is
important to note, however, that the mortality rate at the dam does not
represent the full level of sea lion predation on salmonids in the
Columbia River.

Although NMFS, the U.S. Army Corps of Engineers (which operates
Bonneville Dam), the States, and the Columbia River Intertribal
Fisheries Commission and their member tribes are aggressively employing
non-lethal deterrence methods to protect salmonids near the dam, these
extensive efforts have achieved only limited success.

In addition to reviewing the conflicts between pinnipeds and salmon, the
States' application also describes many other efforts, for which
hundreds of millions of dollars have been spent, to provide a
comprehensive recovery strategy for salmonids in the Columbia River
basin. These efforts include harvest reduction, hydroelectric system
modification and mitigation, habitat improvement, and hatchery reform.

NMFS is continuing to evaluate the States' application under the MMPA
and other applicable laws (e.g., National Environmental Policy Act and
the Endangered Species Act). NMFS could not complete the process prior
to the 2007 spring salmonid run to the Columbia River due to the date
NMFS received the States' application and the time it takes to make a
decision. NMFS' goal is to complete this process before the start of the
2008 spring Chinook salmon run. NMFS believes it would be useful to gain
experience from this ongoing process and use that experience to
recommend improvements to the MMPA, if necessary.

In accordance with the MMPA, NMFS solicited public comments on the
application. The application, public comments, and other relevant
background information will be provided to the Pinniped--Fishery
Interaction Task Force when it is convened on September 4, 2007. Members
of the Task Force have been identified, queried regarding their
availability and willingness to serve on the Task Force, and invited to
participate. NMFS has procured the services of a professional
facilitator to promote productive, focused discussions and deliberations
by the Task Force so that its recommendations are submitted to NMFS
within 60 days, as required by the MMPA. Based on the Task Force's
recommendations, public comments, and relevant scientific information,
by March 2008 NMFS intends to approve or deny the States' application,
after analyzing the impacts of a reasonable range of alternatives as
required by NEPA and evaluating the proposed action under the Endangered
Species Act.

**H.R. 1769**

Representative Baird and his colleagues introduced H.R. 1769 in March
2007. This bill is a modified version of a bill introduced to the
109^th^ Congress in September 2006 (H.R. 6241). Several aspects of H.R.
1769 are consistent with our 1999 Report to Congress. The bill
identifies and aims to address the complicated and controversial
wildlife management conflict we face on the Columbia River today. It
recognizes the importance of including Columbia River Intertribal Fish
Commission and their member tribes in addressing this conflict; the
limitations of non-lethal methods to protect salmonids from sea lion
predation; and the enormous investment made by many agencies,
organizations, and the public to conserve and recover at-risk salmon and
steelhead populations in the Columbia River basin.

However, H.R. 1769 has some provisions that we would like to work with
the Committee to refine. Although the bill sets out to streamline
procedures necessary to take action towards addressing lethal removal of
California sea lions or Pacific harbor seals to protect salmonids, it
still contains a number of difficult and time consuming requirements.
For example, the bill would require a permit holder to identify the
individual predatory California sea lion before it could be lethally
removed, and demonstrate that non-lethal measures have in general been
ineffective for "such sea lion." While we agree with the principle of
only removing the minimum number of individuals necessary to provide
adequate protection of at-risk fish populations, these could be
challenging, particularly due to conditions on the Columbia River and
the fact that many marked and unmarked sea lions occupy the Columbia
River from its mouth to Bonneville Dam.

Moreover, the bill would require NMFS to make a determination that
non-lethal measures are ineffective (following a public review and
comment period) and then requires each permit holder to duplicate that
determination for each sea lion prior to removal. It is not clear why
the permit holder determination is necessary when NMFS would have
already made such a determination.

Next, the bill would require NMFS to prepare a report to Congress on the
need for additional legislation. NMFS prepared such a report in 1999 and
little has changed since the report was completed, making another report
unnecessary.

Finally, coordinating the activities of permit holders could be
difficult because multiple permits may be issued to six different
"eligible entities" but each entity may use only one permit during any
2-week period. Tracking such a system could be daunting.

NMFS and other agencies would welcome an opportunity to work with the
Committee to develop solutions that will accomplish the goals of H.R.
1769 and the MMPA.

**Conclusions**

This bill or any other effort to streamline the process for using lethal
removal of pinnipeds will be highly controversial. The MMPA has provided
strong protections for all marine mammals, regardless of their
population status, for more than 30 years. Any attempt to modify it to
allow removal of pinnipeds, even for essential resource management
purposes, will be perceived as reducing protections for marine mammals
and thereby weakening the Act. We believe changes can be made to the
section 120 process that could, when combined with sound principles of
wildlife management, achieve the goals and objectives of the MMPA.

Because the bill would not address the full scope of issues related to
pinniped conflict in the United States, it is correctly described as a
stop-gap measure. If the intent of the bill is to eliminate or greatly
reduce the level of predation by California sea lions throughout the
entire Columbia River basin, it is unclear whether this goal will be
achieved; the conflict in the Columbia River basin covers nearly 150
miles in a river that at times is more than a mile wide and 100 feet
deep.

In 1999, NMFS recommended to Congress that the MMPA be amended to, among
other things; allow lethal removal of pinnipeds to protect threatened or
endangered fish and fish that are species of concern in the affected
states and to resolve human--pinniped conflicts other than predation.
These recommendations are still valid, and the Subcommittee should
consider a comprehensive approach to the use of lethal measures to
manage pinnipeds when Congress takes up the reauthorization of the MMPA.
Lethal removal is used for many high-profile species of terrestrial
animals to control wildlife damage to other species or to property and
resources valued by people. We would be happy to work with the
Subcommittee to recommend statutory changes that would provide resource
managers with greater flexibility to adequately address interactions
involving pinnipeds along the West Coast, while ensuring that the goals
and objectives of the MMPA are achieved.