19–006 

112TH CONGRESS REPT. 112–606 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

MILITARY READINESS AND SOUTHERN SEA OTTER 

CONSERVATION ACT 

JULY 17, 2012.—Ordered to be printed 

Mr. HASTINGS of Washington, from the Committee on Natural 

Resources, submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4043] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 4043) to amend title 10, United States Code, to direct the 

Secretary of Defense to establish Southern Sea Otter Military 

Readiness Areas for national defense purposes, and for other purposes, having considered the same, report favorably thereon with 

an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Military Readiness and Southern Sea Otter Conservation Act’’. 

SEC. 2. SOUTHERN SEA OTTER MILITARY READINESS AREAS. 

(a) ESTABLISHMENT OF THE SOUTHERN SEA OTTER MILITARY READINESS AREAS.— 

Chapter 136 of title 10, United States Code, is amended by adding at the end the 

following new section: 

‘‘§ 2283. Establishment of the Southern Sea Otter Military Readiness Areas 

‘‘(a) ESTABLISHMENT.—The Secretary of Defense shall establish Southern Sea 

Otter Military Readiness Areas for national defense purposes, consisting of— 

‘‘(1) the area that includes Naval Base Ventura County San Nicolas Island 

and Begg Rock, and the adjacent and surrounding waters within the following 

coordinates: 

‘‘N. Latitude/W. Longitude 

‘‘33°27.8′/119°34.3′ 

‘‘33°20.5′/119°15.5′ 


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‘‘33°13.5′/119°11.8′ 

‘‘33°06.5′/119°15.3′ 

‘‘33°02.8′/119°26.8′ 

‘‘33°08.8′/119°46.3′ 

‘‘33°17.2′/119°56.9′ 

‘‘33°30.9′/119°54.2′; 

‘‘(2) that area that includes Naval Base Coronado San Clemente Island and 

the adjacent and surrounding waters running parallel to shore to 3 nautical 

miles from the high tide line designated by 33 C.F.R. part 165 on May 20, 2010, 

as the San Clemente Island 3NM Safety Zone; and 

‘‘(3) that area that includes Marine Corps Base Camp Pendleton and the adjacent waters within the following coordinates: 

‘‘Latitude/W. Longitude 

‘‘33°26.6′/117°38.9′ 

‘‘33°21.3′/117°45.8′ 

‘‘33°56.2′/117°39.7′ 

‘‘33°6.5′/117°28.5′ 

‘‘33°10.2′/117°23.7′ 

‘‘33°11.8′/117°23.2′ 

‘‘33°26.6′/117°38.9′. 

‘‘(b) ACTIVITIES WITHIN THE SOUTHERN SEA OTTER MILITARY READINESS AREAS.— 

‘‘(1) INCIDENTAL TAKINGS UNDER ENDANGERED SPECIES ACT OF 1973.—Sections 

4 and 9 of the Endangered Species Act of 1973 (16 U.S.C. 1533, 1538) shall not 

apply with respect to the incidental taking of any southern sea otter in the 

Southern Sea Otter Military Readiness Areas in the course of conducting a military readiness activity. 

‘‘(2) INCIDENTAL TAKINGS UNDER MARINE MAMMAL PROTECTION ACT OF 1972.— 

Sections 101 and 102 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 

1371, 1372) shall not apply with respect to the incidental taking of any southern 

sea otter in the Southern Sea Otter Military Readiness Areas in the course of 

conducting military readiness activities. 

‘‘(3) TREATMENT AS SPECIES PROPOSED TO BE LISTED.—For purposes of any 

military readiness activity, any southern sea otter while within the Southern 

Sea Otter Military Readiness Areas shall be treated for the purposes of section 

7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) as a member of a species that is proposed to be listed as an endangered species or a threatened species under section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533). 

‘‘(c) REMOVAL.—Nothing in this section or any other Federal law shall be construed to require that any southern sea otter located within the Southern Sea Otter 

Military Readiness Areas as of the effective date of this section or thereafter be removed from the Areas. 

‘‘(d) REVISION OR TERMINATION OF EXCEPTIONS.—The Secretary of the Interior 

may revise or terminate the application of subsection (b) if the Secretary, in consultation with, and with the concurrence of, the Secretary of the Navy, determines 

that military activities occurring in the Southern Sea Otter Military Readiness 

Areas are substantially impeding southern sea otter conservation or the return of 

southern sea otters to optimum sustainable population levels. 

‘‘(e) MONITORING.— 

‘‘(1) IN GENERAL.—The Secretary of the Navy, in consultation and in cooperation with the Secretary of the Interior, shall monitor the Southern Sea Otter 

Military Readiness Areas not less than every year to evaluate the status of the 

southern sea otter population. 

‘‘(2) REPORTS.—Within 18 months after the effective date of this section and 

every three years thereafter, the Secretaries of the Navy and the Interior shall 

jointly report to Congress and the public on monitoring undertaken pursuant 

to paragraph (1). 

‘‘(f) RELATIONSHIP TO OTHER FEDERAL LAW.—Except as provided in subsections (a) 

and (b), nothing in this section shall be construed as repealing, superseding, or 

modifying any provision of Federal law. 

‘‘(g) DEFINITIONS.—In this section: 

‘‘(1) INCIDENTAL TAKING.—The term ‘incidental taking’ means any take of a 

southern sea otter that is incidental to, and not the purpose of, the carrying out 

of an otherwise lawful activity. 

‘‘(2) OPTIMUM SUSTAINABLE POPULATION.—The term ‘optimum sustainable 

population’ means, with respect to any population stock, the number of animals 

that will result in the maximum productivity of the population or the species, 

keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. 


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‘‘(3) SOUTHERN SEA OTTER.—The term ‘southern sea otter’ means any member 

of the subspecies Enhydra lutris nereis. 

‘‘(4) TAKE.—The term ‘take’— 

‘‘(A) when used in reference to activities subject to regulation by the Endangered Species Act of 1973 (16 U.S.C. 1531–1544) shall have the meaning 

given such term in that statute; and 

‘‘(B) when used in reference to activities subject to regulation by the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361–1423h), shall have the 

meaning given such term in that statute. 

‘‘(5) MILITARY READINESS ACTIVITY.—The term ‘military readiness activity’ has 

the meaning given that term in section 315(f) of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 (Public Law 107–314; 116 Stat. 

2509; 16 U.S.C. 703 note), and includes all training and operations of the 

Armed Forces that relate to combat, and the adequate and realistic testing of 

military equipment, vehicles, weapons, and sensors for proper operation and 

suitability for combat use.’’. 

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of such chapter 

is amended by adding at the end the following: 

‘‘2283. Establishment of the Southern Sea Otter Military Readiness Areas.’’. 

(c) CONSERVATION AND MANAGEMENT ACTIONS.—Section 1 of Public Law 99–625 

(16 U.S.C. 1536 note) is amended by adding at the end the following: 

‘‘(g) CONSERVATION AND MANAGEMENT ACTIONS.—If the Secretary issues a final 

rule ending the management plan authorized under subsection (b) through the termination of the regulations implementing such plan— 

‘‘(1) the Secretary, in planning and implementing recovery and conservation 

measures under the Act to allow for the expansion of the range of the population of the sea otter, shall coordinate and cooperate with— 

‘‘(A) the Secretary of the Navy; 

‘‘(B) the Secretary of Commerce regarding recovery efforts for species listed under the Act; and 

‘‘(C) the State of California to assist the State in continuing viable commercial harvest of State fisheries; and 

‘‘(2) interaction with sea otters in the course of engaging in fishing in any 

State fishery south of Point Conception, California, under an authorization 

issued by the State of California, shall not be treated as a violation of section 

9 of the Act for incidental take or of the Marine Mammal Protection Act of 

1972.’’. 

PURPOSE OF THE BILL

The purpose of H.R. 4043, as ordered reported, is to amend title 

10, United States Code, to direct the Secretary of Defense to establish Southern Sea Otter Military Readiness Areas for national defense purposes. 

BACKGROUND AND NEED FOR LEGISLATION

The California or Southern sea otter was listed as threatened 

under the Endangered Species Act (ESA) in 1977. The threatened 

listing made the sea otter a depleted species under the Marine 

Mammal Protection Act (MMPA). At the time of the listing, the sea 

otter population was located north of Point Conception along the 

central portion of the California coast. Concerns were raised that 

the concentrated population could be at risk of extinction from a 

catastrophic event, such as an oil spill. To assist the sea otter in 

its recovery, the sea otter recovery team recommended the creation 

of an experimental population and the establishment of 

translocation and management zones in its 1982 recovery plan. The 

recommendation would allow for the expansion of the experimental 

population and the continuance of commercial fishing and military 

activities. The recovery plan had the support of the Navy and fishing interests, since their activities would be protected under the 

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tions since the MMPA did not allow for the creation of an experimental population. 

Public Law 99–625, enacted in 1986, allowed the Secretary of the 

Interior to develop and implement, through regulations, a plan for 

the relocation of an experimental population of California sea otters and the creation of translocation and management zones. The 

Act provided that if the translocation plan was established, sea otters in each zone would be treated as candidate species. Military 

activities in the translocation zone would not be in violation of the 

incidental take provisions of the ESA and fishing activities in the 

management zone would not be in violation of the incidental take 

provisions of the ESA and the MMPA. In addition, the U.S. Fish 

and Wildlife Service (FWS) was required to move sea otters in the 

management zone back to the translocation area to protect existing 

commercial fisheries. 

Beginning in 1987, FWS captured and relocated 140 southern 

sea otters from the parent population to the translocation zone located around San Nicolas Island. In 1991, translocation efforts 

were halted due to issues with the translocated animals either 

swimming back to the parent population or not surviving the transfer. Between 1987 and 1993, 24 sea otters were removed from the 

management zone, located south of Point Conception, and returned 

to the parent population. In 1993, removals of sea otters from the 

management zone were also halted. In 2010, 46 independent southern sea otters were counted at San Nicolas Island. 

On April 3, 2003, FWS issued a Final Revised Recovery Plan for 

the southern sea otter which updated the 1982 recovery plan. The 

2003 recovery plan reflected recovery team recommendations that 

the translocation program was not the best way to accomplish the 

objective to increase the range and sea otter population numbers. 

The plan recommended FWS declare the translocation program a 

failure and instead allow for the natural expansion of the population. 

In October 2005, FWS issued a draft Supplemental Environmental Impact Statement (SEIS) on the translocation program. The 

preferred alternative of the draft SEIS is to terminate the southern 

sea otter translocation and management zones and allow the sea 

otters in those areas to remain. In 2009, FWS was sued by two environmental organizations under the Administrative Procedure Act 

alleging an unreasonably delayed decision on the translocation program. 

As part of a November 2010 settlement agreement of the lawsuit, 

FWS issued a proposed rule and a revised draft SEIS on August 

26, 2011. The rule proposes to declare the translocation program a 

failure. The rule, if finalized, would override the regulations that 

establish and govern the implementation of the translocation program and the provisions of Public Law 99–625 that allow military 

and fishing activities to not be in violation of incidental take provisions of the ESA and MMPA. 

H.R. 4043, the Military Readiness and Southern Sea Otter Conservation Act, will retain the candidate species status for military 

activities occurring in the translocation zone. Specifically, the bill 

would create Southern Sea Otter Military Readiness Areas in these 

areas: Naval Base Ventura County San Nicolas Island and Begg 

Rock and specified surrounding waters designated by certain coVerDate Mar 15 2010 06:56 Jul 19, 2012 Jkt 019006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR606P1.XXX HR606P1

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ordinates; Naval Base Coronado San Clemente Island and adjacent 

and surrounding waters running parallel to shore to 3 nautical 

miles designated as the San Clemente Island 3 NM Safety Zone; 

and Marine Corps Base Camp Pendleton and adjacent waters specified by certain coordinates. 

Within the military readiness areas, the California sea otter 

would be treated as a candidate species under the ESA and the requirement for permits under the incidental take sections of the 

ESA (sections 4 and 9) and the MMPA (sections 101 and 102) 

would not apply to military activities within the designated areas. 

The bill would not require the removal of sea otters from the military readiness areas. 

The Secretary of the Interior would be authorized to revise or 

terminate the military readiness areas, in consultation and with 

the concurrence of the Secretary of the Navy, if the Secretary of the 

Interior determines the military activities are substantially impeding southern sea otter conservation or the population’s growth to 

optimum sustainable population levels. 

The bill would require the Secretary of the Navy to monitor the 

military readiness areas, not less than every three years, to measure the growth or decline of the sea otter population. Within 24 

months after the effective date of the bill, and every three years 

after, the Navy would report to Congress on its monitoring activities. 

FWS and the National Marine Fisheries Service, in cooperation 

with the Marine Mammal Commission, would be required to develop an ecosystem management plan for waters off the California 

coast to ensure the recovery of southern sea otters, the recovery of 

endangered black and white abalone, and continue commercial harvest of shellfish fisheries at levels approximating current harvests. 

In addition, the bill would require FWS to assess the carrying capacity of the habitat for the southern sea otters, including impacts 

of water quality on the carrying capacity and the causes of water 

quality degradation. FWS would also be required to continue implementing the relocation and management plan for the southern sea 

otter as authorized in Public Law 99–625, until the ecosystem management plans and assessments are completed. 

At a Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs hearing, the Navy and FWS testified in support of the military readiness areas. FWS also testified that it opposed a provision 

in the bill pertaining to the development of the described ‘‘Ecosystem Management Plan’’ due in part to concerns that none of the 

agencies can ‘‘ensure’’ the recovery of a species as required in the 

introduced bill. 

To address concerns raised, during Full Committee consideration 

of the bill, the Committee adopted an amendment offered by Congressman John Fleming (R–LA) to strike the provision requiring an 

ecosystem management plan, carrying capacity provisions and continued implementation of the translocation plan. The amendment 

substituted language that would be triggered only if FWS issues a 

final rule to end the translocation program. The Fleming amendment would require FWS, when planning and implementing ESA 

recovery and conservation actions for the southern sea otter, to coordinate and cooperate with the Navy, the Secretary of Commerce 

and the State of California. The amendment would also retain exVerDate Mar 15 2010 06:56 Jul 19, 2012 Jkt 019006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR606P1.XXX HR606P1

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isting exemptions for state fisheries south of Point Conception. 

While the sea otter would be allowed to naturally expand its range, 

state fisheries south of Point Conception would not be in violation 

of incidental take provisions in the ESA and MMPA. If state fisheries were to take a sea otter, the State of California has authority 

under state law to close them. Lastly, the amendment would modify the monitoring section to include the Secretary of the Interior, 

to require annual monitoring, and to require the first report in 18 

months of the bill’s enactment. 

COMMITTEE ACTION

H.R. 4043 was introduced on February 15, 2012, by Congressman 

Elton Gallegly (R–CA). The bill was referred primarily to the Committee on Armed Services, and in addition to the Committee on 

Natural Resources. Within the Natural Resources Committee, the 

bill was referred to the Subcommittee on Fisheries, Wildlife, 

Oceans, and Insular Affairs. On April 19, 2012, the Subcommittee 

held a hearing on the bill. On May 16, 2012, the Full Natural Resources Committee met to consider the bill. The Subcommittee on 

Fisheries, Wildlife, Oceans, and Insular Affairs was discharged by 

unanimous consent. Congressman John Fleming (R–LA) offered 

amendment designated .001 to the bill. Congressman Gregorio 

Sablan (D–MP) offered amendment designated .001 to the Fleming 

amendment; the Sablan amendment was not adopted by voice vote. 

The amendment offered by Congressman Fleming was adopted by 

a roll call vote of 19 to 12, as follows: 


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The bill, as amended, was then adopted and ordered favorably 

reported to the House of Representatives by a bipartisan roll call 

vote of 24 to 13, as follows: 


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COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII 

1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(2)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 4043—Military Readiness and Southern Sea Otter Conservation Act 

H.R. 4043 would establish three areas off the coast of southern 

California to accommodate certain training needs of the Navy and 

Marine Corps. Since 1987, the U.S. Fish and Wildlife Service 

(FWS) has conducted an experiment to relocate southern sea otters 

to those areas in an effort to increase the otter population. That 

program has not succeeded and FWS plans to terminate it. While 

the program was in effect, naval operations in those areas were exempt from compliance with the incidental takings provisions of the 

Endangered Species Act and the Marine Mammal Protection Act as 

they applied to the southern sea otter. (An incidental taking refers 

to the harming or killing of an endangered species that results 

from an otherwise lawful activity.) When the program is ended, the 

Department of the Navy will have to conduct certain environmental 

studies and obtain incidental takings permits for southern sea otters before it operates in those training areas. 

H.R. 4043 would exempt the department from those incidental 

takings provisions, reducing administrative efforts and compliance 

costs. The bill would require the Navy to annually monitor the 

otter population in the established zones and to report to the Congress every third year, the results of that monitoring. Navy monitoring of the otter population would supplant similar efforts currently conducted by the U.S. Geological Survey, albeit on a less frequent basis. Based on information from the Department of the 

Navy, CBO estimates that implementing the bill would have no 

significant impact on the federal budget. 

Enacting H.R. 4043 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

H.R. 4043 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is David Newman. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 


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2. Section 308(a) of Congressional Budget Act. As required by 

clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, 

this bill does not contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or 

tax expenditures. Based on information from the Department of the 

Navy, CBO estimates that implementing the bill would have no 

significant impact on the federal budget. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill, as ordered reported, is to amend title 10, United States 

Code, to direct the Secretary of Defense to establish Southern Sea 

Otter Military Readiness Areas for national defense purposes. 

EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

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

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 10, UNITED STATES CODE 

* * * * * * * 

SUBTITLE A—GENERAL MILITARY LAW 

* * * * * * * 

PART IV—SERVICE, SUPPLY, AND 

PROCUREMENT 

* * * * * * * 

CHAPTER 136—PROVISIONS RELATING TO SPECIFIC 

PROGRAMS 


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Sec. 

2281. Global Positioning System. 

* * * * * * * 

2283. Establishment of the Southern Sea Otter Military Readiness Areas. 

* * * * * * * 

§ 2283. Establishment of the Southern Sea Otter Military 

Readiness Areas 

(a) ESTABLISHMENT.—The Secretary of Defense shall establish 

Southern Sea Otter Military Readiness Areas for national defense 

purposes, consisting of— 

(1) the area that includes Naval Base Ventura County San 

Nicolas Island and Begg Rock, and the adjacent and surrounding waters within the following coordinates: 

N. Latitude/W. Longitude 

33°27.8′/119°34.3′ 

33°20.5′/119°15.5′ 

33°13.5′/119°11.8′ 

33°06.5′/119°15.3′ 

33°02.8′/119°26.8′ 

33°08.8′/119°46.3′ 

33°17.2′/119°56.9′ 

33°30.9′/119°54.2′; 

(2) that area that includes Naval Base Coronado San 

Clemente Island and the adjacent and surrounding waters running parallel to shore to 3 nautical miles from the high tide line 

designated by 33 C.F.R. part 165 on May 20, 2010, as the San 

Clemente Island 3NM Safety Zone; and 

(3) that area that includes Marine Corps Base Camp Pendleton and the adjacent waters within the following coordinates: 

Latitude/W. Longitude 

33°26.6′/117°38.9′ 

33°21.3′/117°45.8′ 

33°56.2′/117°39.7′ 

33°6.5′/117°28.5′ 

33°10.2′/117°23.7′ 

33°11.8′/117°23.2′ 

33°26.6′/117°38.9′. 

(b) ACTIVITIES WITHIN THE SOUTHERN SEA OTTER MILITARY

READINESS AREAS.— 

(1) INCIDENTAL TAKINGS UNDER ENDANGERED SPECIES ACT OF

1973.—Sections 4 and 9 of the Endangered Species Act of 1973 

(16 U.S.C. 1533, 1538) shall not apply with respect to the incidental taking of any southern sea otter in the Southern Sea 

Otter Military Readiness Areas in the course of conducting a 

military readiness activity. 

(2) INCIDENTAL TAKINGS UNDER MARINE MAMMAL PROTECTION

ACT OF 1972.—Sections 101 and 102 of the Marine Mammal 

Protection Act of 1972 (16 U.S.C. 1371, 1372) shall not apply 

with respect to the incidental taking of any southern sea otter 

in the Southern Sea Otter Military Readiness Areas in the 

course of conducting military readiness activities. 

(3) TREATMENT AS SPECIES PROPOSED TO BE LISTED.—For 

purposes of any military readiness activity, any southern sea 


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otter while within the Southern Sea Otter Military Readiness 

Areas shall be treated for the purposes of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) as a member of 

a species that is proposed to be listed as an endangered species 

or a threatened species under section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533). 

(c) REMOVAL.—Nothing in this section or any other Federal law 

shall be construed to require that any southern sea otter located 

within the Southern Sea Otter Military Readiness Areas as of the 

effective date of this section or thereafter be removed from the Areas. 

(d) REVISION OR TERMINATION OF EXCEPTIONS.—The Secretary of 

the Interior may revise or terminate the application of subsection (b) 

if the Secretary, in consultation with, and with the concurrence of, 

the Secretary of the Navy, determines that military activities occurring in the Southern Sea Otter Military Readiness Areas are substantially impeding southern sea otter conservation or the return of 

southern sea otters to optimum sustainable population levels. 

(e) MONITORING.— (1) IN GENERAL.—The Secretary of the Navy, in consultation 

and in cooperation with the Secretary of the Interior, shall monitor the Southern Sea Otter Military Readiness Areas not less 

than every year to evaluate the status of the southern sea otter 

population. 

(2) REPORTS.—Within 18 months after the effective date of 

this section and every three years thereafter, the Secretaries of 

the Navy and the Interior shall jointly report to Congress and 

the public on monitoring undertaken pursuant to paragraph 

(1). 

(f) RELATIONSHIP TO OTHER FEDERAL LAW.—Except as provided 

in subsections (a) and (b), nothing in this section shall be construed 

as repealing, superseding, or modifying any provision of Federal 

law. 

(g) DEFINITIONS.—In this section: 

(1) INCIDENTAL TAKING.—The term ‘‘incidental taking’’ means 

any take of a southern sea otter that is incidental to, and not 

the purpose of, the carrying out of an otherwise lawful activity. 

(2) OPTIMUM SUSTAINABLE POPULATION.—The term ‘‘optimum 

sustainable population’’ means, with respect to any population 

stock, the number of animals that will result in the maximum 

productivity of the population or the species, keeping in mind 

the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. 

(3) SOUTHERN SEA OTTER.—The term ‘‘southern sea otter’’ 

means any member of the subspecies Enhydra lutris nereis. 

(4) TAKE.—The term ‘‘take’’— 

(A) when used in reference to activities subject to regulation by the Endangered Species Act of 1973 (16 U.S.C. 

1531–1544) shall have the meaning given such term in that 

statute; and 

(B) when used in reference to activities subject to regulation by the Marine Mammal Protection Act of 1972 (16 

U.S.C. 1361–1423h), shall have the meaning given such 

term in that statute. 

(5) MILITARY READINESS ACTIVITY.—The term ‘‘military readiness activity’’ has the meaning given that term in section 315(f) 


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of the Bob Stump National Defense Authorization Act for Fiscal 

Year 2003 (Public Law 107–314; 116 Stat. 2509; 16 U.S.C. 703 

note), and includes all training and operations of the Armed 

Forces that relate to combat, and the adequate and realistic 

testing of military equipment, vehicles, weapons, and sensors 

for proper operation and suitability for combat use. 

* * * * * * * 

SECTION 1 OF PUBLIC LAW 99–625 

AN ACT To improve the operation of certain fish and wildlife programs. 

SECTION 1. TRANSLOCATION OF CALIFORNIA SEA OTTERS. 

(a) * * * 

* * * * * * * 

(g) CONSERVATION AND MANAGEMENT ACTIONS.—If the Secretary 

issues a final rule ending the management plan authorized under 

subsection (b) through the termination of the regulations implementing such plan— 

(1) the Secretary, in planning and implementing recovery and 

conservation measures under the Act to allow for the expansion 

of the range of the population of the sea otter, shall coordinate 

and cooperate with— 

(A) the Secretary of the Navy; 

(B) the Secretary of Commerce regarding recovery efforts 

for species listed under the Act; and 

(C) the State of California to assist the State in continuing viable commercial harvest of State fisheries; and 

(2) interaction with sea otters in the course of engaging in 

fishing in any State fishery south of Point Conception, California, under an authorization issued by the State of California, shall not be treated as a violation of section 9 of the Act 

for incidental take or of the Marine Mammal Protection Act of 

1972. 


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DISSENTING VIEWS 

Southern sea otters originally ranged from Baja California, Mexico to Northern California or Oregon. During the 1700s and 1800s 

they were nearly driven to extinction by the fur trade, which was 

more damaging to the southern population, leaving only a small 

surviving unit in Monterey California with 50 individuals in 1914. 

In 1977, the southern sea otter was listed under the Endangered 

Species Act primarily because of its reduced range and small population size. The U.S. Fish and Wildlife Service (FWS) implemented 

a plan to create a buffer population outside the present range to 

protect the species in the event of such a disaster. The law required 

the designation of a translocation zone, where sea otters would be 

introduced, and a management zone, which would surround the 

translocation zone and would be maintained ‘‘otter-free’’ by means 

of non-lethal removals. Incidental take restrictions pursuant to the 

Endangered Species Act (ESA) and Marine Mammal Protection Act 

(MMPA) were not to be applied in the management zone. The Service established the Southern Sea Otter Translocation Plan in 1987, 

selecting San Nicolas Island as the preferred reintroduction site. 

This established a ‘‘no-otter’’ management zone south of Point Conception California. Otters that swam south of San Nicolas Island 

into this zone were returned to the northern location. 

H.R. 4043 would continue incidental take exemptions for southern sea otters from the ESA and MMPA for military activities 

within established military readiness areas to facilitate training. 

This will continue exemptions that are currently in place under the 

Southern Sea Otter Translocation Plan around San Nicolas Island 

and would additionally include waters farther south where recovering sea otter populations are expected to expand their range. The 

FWS has testified in support of these exemptions. 

In 1993, the FWS discontinued the capture and relocation of otters under the Southern Sea Otter Translocation Plan because of 

concerns about impacts to individual animals and the population as 

a whole. A 2000 biological opinion confirmed the translocation program to be harmful to sea otters and the FWS formally declared 

that it would no longer relocate otters in 2001. 

In 2005, the FWS issued a Draft Supplemental Environmental 

Impact Statement (DSEIS) which included a draft evaluation of the 

program indicating it was a failure and an opinion that the program had direct and indirect adverse effects on the survival and recovery of the southern sea otter. Alternatives studied in the DSEIS 

included ending sea otter management in the management zone 

and leaving the translocated individuals on San Nicolas Island. 

The public widely supported this alternative. In 2009, The Otter 

Project and the Environmental Defense Center of Santa Barbara 

filed suit against the Service over its failure to issue a final rule 

concerning sea otter management in the ‘‘no-otter’’ zone. This case 


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16 

was settled in November, 2010 and required the Service to prepare 

a Draft Environmental Impact Statement and failure determination. These have been published and the FWS has issued a draft 

failure determination for the program based on pre-established criteria. Under the settlement, the Service must publish a proposed 

rule (which they have done) that terminates the program, and publish a final Environmental Impact Statement and failure determination by December, 2012. 

As amended by Chairman Fleming, this bill would give fishermen working south of Point Conception, California incidental take 

exemptions from the ESA and the MMPA indefinitely upon the termination of the otter translocation program. This would remove 

any ability of the Fish and Wildlife Service or any other agency to 

address problems that may arise with otter recovery as a result of 

interaction with fisheries. Although sea otter range expansion 

could have effects on commercial fisheries, otters are not currently 

interacting with these fisheries and scientists predict this expansion will take place over a period of decades. 

Ranking Member Sablan offered an amendment that would remove the misguided fisheries provisions while preserving the exemptions that are critical to the Navy’s operations. This amendment was defeated, with the Majority voting in opposition. 

H.R. 4043 would not put into place any meaningful actions for 

southern sea otter conservation and, in fact, would harm efforts to 

recover this species. For these reasons, we oppose H.R. 4043 as reported. 

EDWARD J. MARKEY. 

RUSH D. HOLT. 

PAUL TONKO. 

GRACE F. NAPOLITANO. 

MADELEINE Z. BORDALLO. 

RAU ́ L M. GRIJALVA. 

BEN RAY LU ́ JAN. 

Æ 


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