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[House Report 111-175]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-175

======================================================================

 
              SOUTHERN SEA OTTER RECOVERY AND RESEARCH ACT

                                _______
                                

 June 23, 2009.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 556]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 556) to establish a program of research, recovery, 
and other activities to provide for the recovery of the 
southern sea otter, 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 ``Southern Sea Otter Recovery and 
Research Act''.

SEC. 2. SOUTHERN SEA OTTER RECOVERY AND RESEARCH PROGRAM.

  (a) In General.--The Secretary of the Interior, acting through the 
United States Fish and Wildlife Service and the United States 
Geological Survey, shall carry out a recovery and research program for 
southern sea otter populations along the coast of California, informed 
by the prioritized research recommendations of the Final Revised 
Recovery Plan for the southern sea otter (Enhydra lutris nereis) 
published by the United States Fish and Wildlife Service and dated 
February 24, 2003, the Research Plan for California Sea Otter Recovery 
issued by the United States Fish and Wildlife Service Southern Sea 
Otter Recovery Implementation Team and dated March 2, 2007, and any 
other recovery, research, or conservation plan adopted by the United 
States Fish and Wildlife Service after the date of enactment of this 
Act in accordance with otherwise applicable law. The Recovery and 
Research Program shall include the following:
          (1) Monitoring, analysis, and assessment of southern sea 
        otter population demographics, health, causes of mortality, and 
        life history parameters, including range-wide population 
        surveys.
          (2) Development and implementation of measures to reduce or 
        eliminate potential factors limiting southern sea otter 
        populations that are related to marine ecosystem health or 
        human activities.
  (b) Reappointment of Recovery Implementation Team.--Not later than 
one year after the date of enactment of this Act, the Secretary shall 
appoint persons to a southern sea otter recovery implementation team as 
authorized under section 4(f)(2) of the Endangered Species Act of 1973 
(16 U.S.C. 1533(f)(2)).
  (c) Southern Sea Otter Research and Recovery Grants.--
          (1) Grant authority.--The Secretary shall establish a peer-
        reviewed, merit-based process to award competitive grants for 
        research regarding southern sea otters and for projects 
        assisting the recovery of southern sea otter populations.
          (2) Peer review panel.--The Secretary shall establish as 
        necessary a peer review panel to provide scientific advice and 
        guidance to prioritize proposals for grants under this 
        subsection.
          (3) Research grant subjects.--Research funded with grants 
        under this subsection shall be in accordance with the research 
        recommendations of any plan referred to in subsection (a), and 
        may include the following topics:
                  (A) Causes of sea otter mortality.
                  (B) Southern sea otter demographics and natural 
                history.
                  (C) Effects and sources of pollutants, nutrients, and 
                toxicants on southern sea otters and sequestration of 
                contaminants.
                  (D) Effects and sources of infectious diseases and 
                parasites affecting southern sea otters.
                  (E) Limitations on the availability of food resources 
                for southern sea otters and the impacts of food 
                limitation on southern sea otter carrying capacity.
                  (F) Interactions between southern sea otters and 
                coastal fisheries and other human activities in the 
                marine environment.
                  (G) Assessment of the keystone ecological role of sea 
                otters in southern and central California's coastal 
                marine ecosystems, including both the direct and 
                indirect effects of sea otter predation, especially as 
                these effects influence human welfare, resource 
                utilization, and ecosystem services.
                  (H) Assessment of the adequacy of emergency response 
                and contingency plans.
          (4) Recovery project subjects.--Recovery projects funded with 
        grants under this subsection shall be conducted in accordance 
        with recovery recommendations of any plan referred to in 
        subsection (a), and may include projects to--
                  (A) protect and recover southern sea otters;
                  (B) reduce, mitigate, or eliminate potential factors 
                limiting southern sea otter populations that are 
                related to human activities, including projects to--
                          (i) reduce, mitigate, or eliminate factors 
                        contributing to mortality, adversely affecting 
                        health, or restricting distribution and 
                        abundance; and
                          (ii) reduce, mitigate, or eliminate factors 
                        that harm or reduce the quality of southern sea 
                        otter habitat or the health of coastal marine 
                        ecosystems; and
                  (C) implement emergency response and contingency 
                plans.
  (d) Report.--The Secretary shall--
          (1) within 12 months after the date of enactment of this Act, 
        report to Congress on--
                  (A) the status of southern sea otter populations;
                  (B) implementation of the Recovery and Research 
                Program and the grant program; and
                  (C) any relevant formal consultations conducted under 
                section 7 of the Endangered Species Act of 1973 (16 
                U.S.C. 1536) with respect to the southern sea otter; 
                and
          (2) within 24 months after the date of enactment of this Act 
        and every 5 years thereafter, and in consultation with a 
        southern sea otter recovery implementation team (if any) that 
        is otherwise being utilized by the Secretary under section 4(f) 
        of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)), 
        report to Congress and the public on--
                  (A) an evaluation of southern sea otter health, 
                causes of southern sea otter mortality, and the 
                interactions of southern sea otters with California's 
                coastal marine ecosystems;
                  (B) an evaluation of actions taken to improve 
                southern sea otter health, reduce southern sea otter 
                mortality, and improve southern sea otter habitat;
                  (C) recommendation for actions, pursuant to current 
                law, to improve southern sea otter health, reduce the 
                occurrence of human-related mortality, and improve the 
                health of such coastal marine ecosystems; and
                  (D) recommendations for funding to carry out this 
                Act.

SEC. 3. DEFINITIONS.

  In this Act:
          (1) Recovery and research program.--The term ``Recovery and 
        Research Program'' means the recovery and research program 
        under section 2(a).
          (2) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior, acting through the United States Fish and 
        Wildlife Service and the United States Geological Survey.

SEC. 4. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--There is authorized to be appropriated to the 
Secretary to carry out this Act $5,000,000 for each of fiscal years 
2010 through 2015 of which--
          (1) no less than 30 percent shall be for research grants 
        under section 2(c)(3); and
          (2) no less than 30 percent shall be for recovery projects 
        under section 2(c)(4).
  (b) Administrative Expenses.--Of amounts available each fiscal year 
to carry out this Act, the Secretary may expend not more than 7 percent 
to pay the administrative expenses necessary to carry out this Act.

SEC. 5. TERMINATION.

  This Act shall have no force or effect on and after the date the 
Secretary (as that term is used in section 4(c)(2) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(c)(2)) publishes a determination 
that the southern sea otter should be removed from the lists published 
under section 4(c) of the Endangered Species Act of 1973 (16 U.S.C. 
1533(c)).

                          PURPOSE OF THE BILL

    The purpose of H.R. 556, the Southern Sea Otter Recovery 
and Research Act, is to establish a program of research, 
recovery, and other activities to provide for the recovery of 
the southern sea otter.

                  BACKGROUND AND NEED FOR LEGISLATION

    Historically, the range of sea otters extended across the 
North Pacific rim from the northern Japanese islands and Russia 
through the Aleutian Islands and down the coast of North 
America to Baja California, Mexico. The habitat of the southern 
subspecies, known as the southern or California sea otter 
(Enhydra lutris nereis), ranges from the coastal areas of San 
Mateo County to Santa Barbara County in California. A small 
translocated population of sea otters exists outside this 
range, at San Nicolas Island in Ventura County.
    The carrying capacity of the California coast is estimated 
at 16,000 animals,\1\ but the current population size, based on 
the most recent 3-year running average (for 2006-2008) is only 
2,826 animals, less than 20% of its potential size. Through the 
years, southern sea otter distribution and abundance have been 
inextricably linked with the direct and indirect effects of 
human actions. Given California's inevitably increasing human 
population and mounting evidence of associated impacts on its 
coastal environment and ecosystems, the future of this 
population is uncertain.
---------------------------------------------------------------------------
    \1\Laidre, K.L. (2001). ``An Estimation of Carrying Capacity for 
Sea Otters along the California Coast.'' Marine Mammal Science 
17(2):294-309.
---------------------------------------------------------------------------
    In 1977, the southern sea otter was listed as threatened 
under the Endangered Species Act (ESA) and therefore is 
recognized as ``depleted'' under the Marine Mammal Protection 
Act. It was listed because of its small population size and 
limited distribution and because of the potential threat to the 
remaining habitat and population in the event of an oil spill. 
The U.S. Fish and Wildlife Service (FWS) formed a Southern Sea 
Otter Recovery Implementation Team which finalized a recovery 
plan in 1982. The plan was reviewed and redrafted in 1991, 
1996, 2000, and 2003. Over this time, the population has seen 
periods of growth and decline.
    In 1986, Congress authorized the translocation and 
management of southern sea otters to San Nicolas Island 
offshore of southern California (P.L. 99-625). The intent of 
the translocation program, undertaken by FWS, was to create a 
second population of southern sea otters that could serve as a 
source population for future translocations should some portion 
of the mainland range become decimated by a large-scale 
catastrophe such as an oil spill.\2\ The translocation plan 
designated a translocation zone within which sea otters would 
be released and protected, and a management zone surrounding 
the translocation zone, from which sea otters would be excluded 
to reduce resource conflicts between fishers and the 
translocated population. Sea otters found within the management 
zone were to be non-lethally captured and returned to San 
Nicolas Island or to the range of the parent population. By 
1990, 140 sea otters had been translocated to San Nicolas 
Island, but most left the island shortly after they were 
released. Over the years a small group of animals has persisted 
at the island, and as of 2008, approximately 40 animals were 
counted there.
---------------------------------------------------------------------------
    \2\Sea otter fur is sensitive to soiling from oil or other 
contaminants, and soiling by oil generally results in death.
---------------------------------------------------------------------------
    In 2000, FWS issued a biological opinion finding that 
complying with the containment requirements of the 
translocation program would likely jeopardize the continued 
existence of southern sea otters. In 2005, FWS issued a draft 
supplemental environmental impact statement as part of the 
process to determine whether to declare the translocation 
program a failure. A final supplemental environmental impact 
statement has not yet been released.
    Even during periods of population growth, southern sea 
otters have never increased at more than a fraction of the 
species' maximum potential of 17% to 20% per year, typical of 
recovery of the northern subspecies.\3\ The slow rate of 
recovery of southern sea otters has been attributed to elevated 
mortality rather than to a reduced birth rate or emigration. 
Southern sea otters die from myriad causes, including 
abandonment (as dependent pups), shark attacks, malnutrition, 
incidental entanglement in fishing gear, oiling, boat strikes, 
shooting, and intoxications caused by extreme proliferations of 
harmful algae. Infectious diseases comprise a particularly 
large proportion of sea otter deaths, a pattern that has been 
attributed to immune deficiencies, elevated parasite loads, and 
pathogen exposure, as well as to increasingly scarce food 
resources. Persistent organic pollutants and low genetic 
diversity may be contributing to suppressed immune function. 
Oil spills and range restriction (due to potential enforcement 
of a ``management'' or ``no-otter'' zone) are not responsible 
for the current high rates of mortality, but the possibility of 
a catastrophic oil spill or range restriction remain important 
threats that could negatively affect southern sea otter 
recovery.
---------------------------------------------------------------------------
    \3\Estes, J.A. (1990). ``Growth and Equilibrium in Sea Otter 
Populations''. Journal of Animal Ecology 59:385-401.
---------------------------------------------------------------------------
    Sea otters apparently lack immunity to many land-based 
diseases and parasites. From 1998 to 2006, infectious diseases 
were identified as the primary cause of death in over 40% of 
the fresh-dead sea otter carcasses examined at the California 
Department of Fish and Game Marine Wildlife Veterinary Care and 
Research Center in Santa Cruz, California. In addition, two 
potentially deadly parasites that cause systemic brain 
infections, Toxoplasma gondii and Sarcocystis neurona, were 
identified only within the last 10-15 years. The primary route 
of T. gondii to the sea is believed to be runoff containing 
feces from felids (domestic cats, feral cats, mountain lions, 
bobcats) carrying the parasite's eggs. Identifying specific 
routes of infection has not yet been possible. The parasite S. 
neurona, which is shed in the feces of opossums, probably 
reaches sea otters by a similar route of runoff and 
concentration in marine invertebrate prey, but as with T. 
gondii infections, the specific pathways are unknown.
    Infections with thorny-headed worms (Profilicollis spp.) 
killed about 15% of the fresh-dead sea otters examined from 
1998-2006 and are a significant cause of death, particularly in 
the Monterey Bay region. Persistent organic pollutants in the 
blood of southern sea otters are present at 50 to 100 times the 
levels seen in Alaskan sea otters. Associations between 
significantly higher levels of a number of persistent organic 
pollutants in tissues and death due to disease have been 
identified in a number of studies on deceased sea otters. Toxic 
algal blooms, some of which appear to be associated with 
nutrient loading of near shore waters from terrestrial sources, 
have caused mortality events in sea otters.
    Another issue impacting sea otter recovery is food 
limitation. As sea otter populations and densities in a 
particular area increase, competition for food or prey can 
affect the body condition, health, and survival of some otters. 
Limited food resources may be affecting southern sea otter 
recovery in certain parts of their existing range. For example, 
sea otters at San Nicolas Island are larger and spend less time 
foraging than those in the central part of the range; their 
diet is dominated by a few energy-rich species, and food 
availability is much greater (1-2 orders of magnitude higher) 
than in central California. The dietary diversification that 
has occurred in response to food limitation in central 
California exposes sea otters to new parasites and disease 
pathogens, so that food limitation and disease may be acting 
synergistically to increase mortality. Together, these data 
suggest that food limitation is potentially an obstacle to the 
recovery of sea otters in central California and that sea 
otters in central California may be at or near the 
environmental carrying capacity.
    In order for population growth to occur, sea otters must be 
able to expand their range into areas with more abundant prey 
resources. Range expansion may result in conflicts with fishers 
over resource allocation and gear restrictions and will require 
coordination with recovery efforts for the endangered white 
abalone (Haliotis sorenseni) and black abalone (H. 
cracherodii).
    Despite the number of continuing threats to the southern 
sea otter and the population's modest growth rate, it is 
conceivable that the FWS could delist the southern sea otter in 
the future. In order for southern sea otters to be considered 
for delisting under the ESA, the 3-year running average must 
exceed a threshold of 3,090 animals for three continuous years. 
Even after delisting under the ESA, the southern sea otter will 
continue to receive protection under the Marine Mammal 
Protection Act. At that time, FWS will make a formal 
determination of the southern sea otter's ``depleted'' status 
in relation to its optimal sustainable population (OSP) size, 
which is estimated to be approximately 8,400 individuals. 
Recovery and attainment of the OSP level for southern sea 
otters will depend on a better understanding of the relative 
importance of, and interaction between, various causes of 
mortality and the means to mitigate them.
    H.R. 556 directs FWS to implement a program assessing 
important aspects of southern sea otter population 
demographics, health, mortality and life history parameters; to 
develop measures to reduce or eliminate factors related to 
marine ecosystem health or human activities that limit sea 
otter populations; and to do so in accordance with consensus 
recommendations made by the Service's published Southern Sea 
Otter Recovery Plan.
    The bill is necessary to provide a stable and reliable 
source of funding for critically needed research, monitoring, 
and implementation of recovery actions. Past funding by FWS has 
been inadequate to meet these needs. The benefits of the 
research, monitoring, and recovery actions funded by the bill 
will apply to sea otters, but because sea otters are a keystone 
and a sentinel species, the benefits will also translate to the 
California coastal ecosystem as a whole.

                            COMMITTEE ACTION

    H.R. 556 was introduced by Representative Sam Farr (D-CA) 
on January 15, 2009. The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Insular Affairs, Oceans and Wildlife.
    On May 5, 2009, the Subcommittee held a hearing on the 
bill. On June 10, 2009, the Subcommittee was discharged from 
further consideration of H.R. 556 and the full Natural 
Resources Committee met to consider the bill. Subcommittee 
Chairwoman Madeleine Z. Bordallo (D-GU) offered an amendment in 
the nature of a substitute to eliminate the Sea Otter 
Scientific Advisory Committee and direct FWS to utilize its 
existing authorities under the ESA to reappoint a Southern Sea 
Otter Recovery Implementation Team, and to utilize peer review 
panels, as necessary, to provide scientific advice and guidance 
in prioritizing grant proposals. The substitute also requires 
the Secretary of the Interior, within two years and every five 
years thereafter, and in consultation with the Recovery 
Implementation Team, to recommend funding for further 
activities to implement the Act.
    Representative Don Young (R-AK) offered an amendment to the 
amendment in the nature of a substitute, which was modified by 
unanimous consent, to terminate the Act upon the delisting of 
the southern sea otter under the ESA. The modified amendment to 
the amendment in the nature of a substitute was adopted by 
voice vote. The amendment in the nature of a substitute, as 
amended, was then adopted by voice vote. The bill, as amended, 
was then ordered favorably reported to the House of 
Representatives by voice vote.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    This section provides that this Act may be cited as the 
``Southern Sea Otter Recovery and Research Act.''

Section 2. Southern Sea Otter Recovery and Research Program

    This section requires the Secretary to carry out a recovery 
and research program for southern sea otter populations along 
the coast of California informed by the prioritized research 
recommendations of the Final Revised Recovery Plan for the 
southern sea otter (Enhydra lutris nereis) published by FWS and 
dated February 24, 2003, the Research Plan for California Sea 
Otter Recovery issued by the FWS Southern Sea Otter Recovery 
Implementation Team and dated March 2, 2007, and any other 
recovery or research plan adopted by FWS. The Committee 
recognizes that these documents contain numerous research and 
recovery recommendations that should provide the foundation of 
recovery and research program. The Committee also recognizes 
that the Revised Recovery Plan is now seven years old and the 
recovery and research recommendations therein may require 
updating and reprioritization to accommodate new scientific 
information and state ocean policy initiatives. It is the 
Committee's intent that the Secretary has the flexibility to 
use these documents, subsequent revisions, and other scientific 
literature to effectively implement its Recovery and Research 
Program.
    This section also directs the Recovery and Research Program 
to monitor and analyze southern sea otter population 
demographics, health, causes of mortality, and life history 
parameters, including range-wide population surveys. The 
Recovery and Research Program will also develop and implement 
measures to reduce or eliminate potential factors limiting the 
southern sea otter population that are related to marine 
ecosystem health or human activities.
    Subsection (b) directs the Secretary to reappoint a 
Southern Sea Otter Recovery Implementation Team authorized 
under section 4(f)(2) of the ESA not later than one year after 
the date of enactment of this Act.
    Subsection (c) establishes a peer-reviewed, merit-based 
process to award competitive grants for southern sea otter 
research and for projects assisting the recovery of southern 
sea otter populations. This subsection also directs the 
Secretary to establish, as necessary, a peer review panel to 
provide scientific advice and guidance to prioritize proposals 
for grants.
    This subsection provides that research grant subjects may 
include eight listed topics. This list is not exhaustive, but 
rather illustrative, and as time goes by the Committee expects 
that research priorities will change based on the accumulation 
of scientific information and the emergence of new threats.
    This subsection also directs the Secretary to provide 
grants for a number of different types of recovery projects.
    Subsection (d) directs the Secretary to report, within 12 
months after enactment, on the status of southern sea otter 
populations; implementation of the Recovery and Research 
Program and the grant program; and any relevant formal 
consultations conducted under section 7 of the ESA with respect 
to southern sea otters.
    This subsection also requires the Secretary, within 24 
months of enactment and every five years thereafter, and in 
consultation with the Southern Sea Otter Recovery 
Implementation Team, to report on the health of southern sea 
otters; the causes of southern sea otter mortality; and 
interactions of southern sea otters with California's coastal 
marine ecosystems. The report will also evaluate the 
effectiveness of actions taken to improve southern sea otter 
health, reduce southern sea otter mortality, and improve 
southern sea otter habitat. Based on that evaluation the report 
will recommend actions to improve southern sea otter health, 
reduce human-related mortality, and improve the health of 
coastal marine ecosystems. Finally, the report will also 
include recommendations regarding funding to carry out the Act.

Sec. 3. Definitions

    Section 3 defines key terms included within the text of the 
proposed legislation, including ``Recovery and Research 
Program'' and ``Secretary'' where they appear in the bill.

Section 4. Authorization of Appropriations

    This section authorizes $5,000,000 for each of fiscal years 
2010 through 2015 and caps the administrative expenses at 7 
percent. The authorization is further allocated with 30 percent 
of the authorization for research, 30 percent for recovery 
activities, and the remainder provided to the Secretary of the 
Interior for additional grants for either research or recovery 
projects.

Section 5. Termination

    This section terminates the Act on or after the date the 
Secretary publishes a determination that the southern sea otter 
should be removed from the lists published under section 4(c) 
of the ESA.

            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.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) 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)(3)(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.
    2. 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.
    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 is to is to 
establish a program of research, recovery, and other activities 
to provide for the recovery of the southern sea otter.
    4. Congressional Budget Office Cost Estimate. 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. 556--Southern Sea Otter Recovery and Research Act

    Summary: H.R. 556 would authorize the appropriation of $5 
million annually over the 2010-2015 period for the Fish and 
Wildlife Service and the United States Geological Survey to 
carry out a recovery and research program affecting the 
southern sea otters along the coast of California. The program 
would include awarding competitive grants for research 
regarding the otters and for projects to assist in the recovery 
of the otter population. Assuming appropriation of the 
authorized amounts, CBO estimates that carrying out those 
activities would cost $20 million over the next five years. 
Enacting the bill would not affect direct spending or revenues.
    H.R. 556 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 556 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2010     2011     2012     2013     2014   2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level.....................................        5        5        5        5        5        25
Estimated Outlays.......................................        2        3        5        5        5        20
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
556 will be enacted near the end of fiscal year 2009 and that 
the authorized amounts will be appropriated for each year. 
Estimated outlays are based on historical spending patterns for 
similar programs.
    Estimated intergovernmental and private-sector impact: H.R. 
556 contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Susanne S. Mehlman; 
Impact on State, Local, and Tribal Governments: Melissa 
Merrell; Impact on the Private Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                           EARMARK STATEMENT

    H.R. 556 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            ADDITIONAL VIEWS

    We are concerned that this bill will force the U.S. Fish 
and Wildlife Service to take actions and use funds for the 
Southern sea otter that the Service would otherwise classify as 
a lower priority when allocating species recovery funds under 
the Endangered Species Act (ESA). The Service testified at our 
Subcommittee hearing that ``the bill could divert funds from 
other high priority recovery actions for threatened and 
endangered species in California.''
    The Service is the agency with management authority over 
the Southern sea otter and a number of other animals listed 
under the ESA. The Service should be afforded the opportunity 
to make its own determinations on how to best use the funds 
given to the agency for ESA recovery actions.
    The original intent of the ESA was to protect and preserve 
species that have been identified as threatened or endangered. 
Over the past 36 years nearly 2600 species have been listed for 
protection. Although the ESA was intended to recover species, 
subspecies and distinct population segments of animals and 
plants threatened or endangered with extinction, 1 percent of 
the total number of U.S. species listed have been recovered 
and/or removed from the endangered list. Today, of the 2531 
listed species on the ESA list, 1,959 are US domestic species 
and 572 are foreign species.
    Under the ESA, at the time a species is listed, the 
government is required to designate critical habitat. Critical 
habitat is designated to alert the public and other 
governmental units to the habitat needs of the species. The 
only exception to this rule is where the Secretary of the 
Interior finds that it is not prudent to do so. The Service has 
designed critical habitat for 543 species or 27 percent of all 
listed species.
    For many years, due to a high demand on its stretched 
resources, the Service has been unable to comply with certain 
deadlines imposed by the ESA for completing critical habitat 
designations. In response, private litigants have repeatedly 
sued the Service because it has failed to meet these statutory 
deadlines. These lawsuits have subjected the Service to an 
ever-increasing series of court orders and court-approved 
settlement agreements. For example, the Bush Administration 
faced 369 listing related suits, or 185 more than were filed 
during the Clinton Administration. As a result, compliance with 
these court actions now consumes nearly the entire listing 
program budget. This leaves the Service with little ability to 
prioritize its activities or to direct scarce listing resources 
to program actions most urgently needed to conserve species. In 
fact, the former Director of the Service has testified that the 
Service had not listed a single species on its own initiative 
since 1994 because of ongoing court litigation.
    Although recovery is the primary goal of the program, 
evidence suggests that recovery efforts have produced limited 
results, implementing recovery actions plans are often low 
priority, and that recovery actions are not properly monitored. 
As a result, although the recovery program receives the highest 
percentage of funding among ESA programs, accomplishments are 
largely unknown and the agency is unaccountable for the 
effectiveness of the recovery efforts. As of May 30, 2009, the 
Service had developed 559 final recovery plans covering 1,084 
species.
    As stated above, only about 1 percent of the total number 
of species listed have been recovered and removed from the 
endangered list. In the more than three decades since the ESA's 
passage only a handful of species have ``recovered'' and been 
removed from the endangered list. In fact, fewer species have 
been delisted because of recovery than because the data used to 
justify their endangered listing was wrong.
    Of the 49 domestic and foreign species delisted, nine were 
removed due to extinction and 17 were removed as data errors. 
The remaining 23 species have been claimed as ``recovered.'' 
The primary factor in the recovery of several of these species 
was the ban on DDT, which was unrelated to and predated the 
Endangered Species Act. However, in at least six of these 
``success'' cases, analysis of the Service data indicates that 
the threat to the species was overestimated.
    Problems with the recovery program include the low priority 
given to developing and implementing plans. For example, since 
recovery plan activities are not regulatory requirements, they 
often receive lower priority than other actions, such as 
critical habitat designations and consultations, which are 
required by regulation and, increasingly, subject to 
litigation. In addition, because the Service does not have a 
centralized system to track and monitor recovery activities, 
the information on species' status may be questionable and 
because the Service lacks good criteria for downlisting or 
delisting a species, the ability to measure recovery progress 
is inconsistent.
    Congress intended for this law to be used to recover 
species and to increase the number of those in need before 
triggering federal regulation (and its attendant restrictions 
on property rights). To merely prevent the extinction of a 
species is not a long-term measurable success. Congress never 
dreamed that it would turn into a tool used by vocal and well-
funded special interest groups seeking to impose court ordered 
federal land and water use controls on the majority of 
Americans.
    We should take the time to have oversight hearings to 
review the agency's funding decisions. We should also look at 
the ESA as a whole to see what changes, modifications or 
reforms are necessary to the Act and not pass new legislation 
for a single listed species.
    While the Amendment in the Nature of a Substitute adopted 
in Committee addressed some of our concerns and made this 
legislation better, we remain concerned about the precedent 
H.R. 556 will have with regard to listed species under the 
Endangered Species Act. It is particularly interesting that 
this legislation singles out a species that while 
``threatened'' is far more likely to survive in the future then 
a number of highly endangered species which desperately need 
recovery funding, which may now be diverted by Congressional 
fiat to ``recover'' the merely threatened Southern sea otter.
                                   Doc Hastings.
                                   Don Young.

                                  
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