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[Senate Report 111-362]
[From the U.S. Government Publishing Office]

111th Congress 
 2d Session                      SENATE                          Report
                                                                111-362
_______________________________________________________________________

                                     

                                                       Calendar No. 686

            THE SOUTHERN SEA OTTER RECOVERY AND RESEARCH ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1748

                                     

               December 10, 2010.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota             SAM BROWNBACK, Kansas
TOM UDALL, New Mexico                MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     Bruce Andrews, General Counsel
                 Ann Begeman, Republican Staff Director
              Brian Hendricks, Republican General Counsel
                Todd Bertoson, Republican Senior Counsel

                                                       Calendar No. 686
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-362

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

 
                  THE SOUTHERN SEA OTTER RECOVERY AND 
                              RESEARCH ACT

                                _______
                                

               December 10, 2010.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 1748]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 1748) to establish a program of 
research, recovery, and other activities to provide for the 
recovery of the southern sea otter, having considered the same, 
reports favorably thereon with an amendment (in the nature of a 
substitute) and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

  The purpose of S. 1748 is to establish a program of research, 
recovery, and other activities to provide for the recovery of 
the southern sea otter, including monitoring, analysis, and 
assessment of southern sea otter population demographics, 
health, causes of mortality, and life history parameters 
including wide-ranging population surveys. The bill would also 
require the development and implementation of measures to 
reduce or eliminate potential factors limiting southern sea 
otter populations related to marine ecosystem health or human 
activities.

                          Background and Needs

  The southern sea otter (Enhydra lutris nereis) is a 
subspecies of sea otter that is currently listed as 
``threatened'' under the Endangered Species Act (ESA) and 
protected under the Marine Mammal Protection Act (MMPA). The 
southern sea otter is a ``keystone'' species in the California 
kelp forest ecosystem, which strongly influences the abundance 
and diversity of species. It is also considered a ``sentinel'' 
species, or a species that warns of compromised ecosystem 
function or health, and may foreshadow threats to human health.
  The subspecies occupies the coastal waters of California. Its 
habitat ranges from San Mateo County at the northern edge of 
its range to Santa Barbara County at the southern extent. There 
is also a small, isolated population that was translocated to 
San Nicolas Island, roughly 75 miles west of Los Angeles in 
1987 as part of an experimental recovery program. Historically, 
the southern sea otter inhabited coastal waters from Baja to 
Northern California,\1\ and may have extended as far north as 
Prince William Sound in Alaska.\2\ However, during the 18th and 
19th centuries, the population was decimated by fur hunters 
seeking their high-value pelts and assumed to be extinct for 
the next several decades.\3\ In the early 1900s, a small group 
of roughly 50 otters was discovered along the Big Sur coast, 
and the current population of southern sea otters is completely 
derived from this small group.\4\ In 1911, the International 
Fur Seal Treaty, the first international treaty for wildlife 
conservation, gave sea otters protection from hunting.
---------------------------------------------------------------------------
    \1\Wilson, DE, MA Bogan, RL Brownell Jr., AM Burdin, and MK Maminov 
(1991) Geographic variation in sea otters, Enhydra lutris. J. Mammal, 
72(1) 22-36.
    \2\Riedman, ML and JA Estes (1990) The sea otter: behavior, ecology 
and natural history. US Fish and Wildlife Service, Biol. Rep. 90(14) 
126-127.
    \3\Bryant, HC (1915) Sea otters near Point Sur. California 
Department of Fish and Game Bulletin 1, 134-135.
    \4\Jessup, David A, Melissa Miller, Jack Ames, Mike Harris, 
Christine Kreuder, Patricia A. Conrad, and Jonna A.K. Mazet (2004) 
Southern sea otter as sentinel of marine ecosystem health. EcoHealth 1, 
239-245.
---------------------------------------------------------------------------
  The most common causes of mortality among southern sea otters 
are bacterial infections, parasitic disease, shark attack, and 
cardiac disease.\5\ Many scientists believe that the prevalence 
of infectious and parasitic disease, as well as cardiac 
disease, may be linked to pollutants reaching the near-shore 
marine environment. These pollutants likely include sewage from 
treatment facility overflow, urban run-off, and agricultural 
chemicals.\6\ The diet of the southern sea otter consists 
primarily of filter-feeding bottom dwellers, such as abalone, 
mussels, and sea urchins, which tend to concentrate 
contaminants and disease-causing pathogens. This makes sea 
otters very susceptible to marine pollutants. Entanglement and 
drowning in fishing gear, shootings, and boat strikes are also 
low-level, but persistent, causes of direct human-caused 
mortality.\7\ Food availability and habitat degradation may be 
limiting factors in southern sea otter population recovery.
---------------------------------------------------------------------------
    \5\Kreuder, C., MA Miller, DA Jessup, LJ Lowenstine, MD Harris, JA 
Ames, TE Carpenter, PA Conrad, and JAK Mazet. (2003) Patterns of 
Mortality in Southern Sea Otters from 1998-2001. Journal of Wildlife, 
39(3) 495-509.
    \6\Jessup, David A. Melissa Miller, Chris Kreuder-Johnson, Patricia 
A. Conrad, Timothy Tinker, James Estes and Jonna AK Mazet. (2007) Sea 
Otters in a Dirty Ocean. Journal of the American Veterinary Medical 
Association, 231(11) 1648-1652.
    \7\USFWS (2008) Final Southern Sea Otter Stock Assessment Report. 
Ventura, CA
---------------------------------------------------------------------------
  In 1982, the U.S. Fish and Wildlife Service (USFWS) formed a 
Southern Sea Otter Recovery Team and created a recovery plan 
for the species. Revised drafts were completed in 1991, 1996, 
2000, and 2003. The recovery plan sets a goal of at least 8,400 
animals as the optimal sustainable population level (there are 
currently about 2,800 southern sea otters). It also sets forth 
criteria for delisting\8\ or uplisting\9\ the subspecies, and 
sets out monitoring and research plans, necessary mitigation 
actions and a cost of recovery program.\10\ The State of 
California has also enacted a law to reduce southern sea otter 
entanglement and drowning in fishing gear.\11\
---------------------------------------------------------------------------
    \8\The southern sea otter population should be considered for 
delisting under the ESA when the average population level over a three-
year period exceeds 3,090 animals.
    \9\The southern sea otter population should be considered for 
listing as ``endangered'' under the ESA if the population declines 
below an ``effective population size of 500 animals,'' or 1,850 
animals.
    \10\USFWS (2003) Final revised recovery plan for the southern sea 
otter. Portland, OR. xi+165 pp.
    \11\California Senate Bill No. 2563
---------------------------------------------------------------------------
  On November 7, 1986, Public Law 99-625 was enacted, which 
authorized the Secretary of the Interior to develop and 
implement a plan to relocate and manage an experimental 
population of southern sea otters. Under the program, some sea 
otters were relocated to San Nicolas Island as an experimental 
population. Additionally, an ``otter free'' management zone was 
created along the coast, south of Point Conception. Animals 
found in the management zone were removed and relocated to the 
northern part of their range. This process of relocation ended 
in 1998, resulting in controversy among the fishing community, 
as a small number of otters moved in and out of the management 
zone on a seasonal basis. Some in the fishing community, like 
urchin and abalone fishermen, view otter presence as 
competition for scarce resources.
  In 2000, an ESA section 7 consultation determined that the 
relocation program would jeopardize the recovery of the 
southern sea otter.\12\ In 2005, USFWS drafted a Supplemental 
Environmental Impact Statement on the Translocation of Sea 
Otters, proposing the termination of the southern sea otter 
translocation program on San Nicolas Island and a cessation of 
otter removal from translocation or management zones.\13\
---------------------------------------------------------------------------
    \12\USFWS. (2000) Reinitiation of formal consultation on the 
containment program for the southern sea otter (1-8-99-FW-81). 
California/Nevada Operations Office. 19 July.
    \13\USFWS (2005) Draft Supplemental Environmental Impact Statement, 
Translocation of Southern Sea Otters. Ventura, CA.
---------------------------------------------------------------------------
  From 2007-2009, the southern sea otter population averaged 
2,813 individuals--about 20 percent of the estimated carrying 
capacity of the region (approximately 16,000 individuals\14\). 
Overall, the population growth rate appears to be stable or 
slightly declining.\15\ However, the population has higher 
growth rates at the southern extent of its range and lower 
growth rates at the central and northern parts.\16\ The 
recovery of this species in California remains a concern for 
wildlife managers. Other recovering sea otter populations in 
Washington, British Columbia, and Alaska have been growing at a 
rate of up to 17 to 20 percent, while southern sea otter 
population growth from 2003-2008 was only about 3 percent.\17\
---------------------------------------------------------------------------
    \14\Laidre, Kristin L, Ronald J Jameson, Douglas Demaster (2000) An 
estimation of the carrying capacity for sea otters along the California 
coast. Marine Mammal Science 17 (2) 294-309.
    \15\USGS, http://www.werc.usgs.gov/Project.aspx?ProjectID=91
    \16\Tinker, MT, JA Estes, K Ralls, TM Williams, D Jessup, and DP 
Costa (2006) Population dynamics and biology of the California sea 
otter at the southern edge of its range. MMS OCS Study 2006-2007. 
Coastal Research Center, Marine Science Institute, University of 
California, Santa Barbara, California. MMS Cooperative Agreement Number 
14-35-0001-31063.
    \17\USFWS (2008) Final Southern Sea Otter Stock Assessment Report. 
Ventura,CA.
---------------------------------------------------------------------------
  On Wednesday, November 4, 2009, the Subcommittee on Oceans, 
Atmosphere, Fisheries, and Coast Guard held a hearing entitled, 
``The Future of Ocean Governance: Building Our National Ocean 
Policy,'' at which testimony was provided by several 
departments and agencies of the Federal government, including 
the U.S. Department of the Interior (DOI). As a part of that 
hearing, DOI described the beneficial role that narrowly 
focused conservation efforts, such as recovery efforts for 
individual species, can play as part of a more comprehensive, 
ecosystem-based approach for managing natural resources.
  DOI noted that sea otters are important predators in the 
nearshore marine ecosystems of the North Pacific Ocean and are 
generally considered to be a keystone species in these 
communities. Sea urchins are a preferred prey item of sea 
otters, and are also commonly viewed as the most important 
subtidal grazers of large algae, including kelp, in California. 
Recovery of the southern sea otter would be beneficial to 
nearshore kelp forests and the species they support because, in 
areas where sea urchin grazing is limiting kelp establishment 
and growth, the presence of sea otters can generally be 
expected to keep sea urchin populations under control, 
resulting in increased stability and persistence of kelp forest 
habitat. Healthy kelp forests, in turn, provide numerous direct 
and indirect ecosystem benefits, including reductions in 
coastal erosion and improved habitat for numerous fish and 
invertebrate species.
  DOI also stated that a recovery and research program would 
have benefits for understanding and addressing factors 
affecting other species in California's kelp ecosystem and 
human health. For example, research into parasitic infection of 
southern sea otters associated with the otters' use of 
particular areas of coastline and selection of certain types of 
prey may allow the development of management interventions that 
will have implications for a wide range of marine and other 
animals that are vulnerable to the same parasites.

                         Summary of Provisions

  S. 1748 would direct USFWS and US Geological Survey (USGS) to 
implement a southern sea otter recovery and research program. 
This program would include (1) monitoring, analysis, and 
assessment of population ecology and health; and (2) 
implementation of measures to reduce or eliminate potential 
factors limiting populations that are related to marine 
ecosystem health or human activities. The bill would mandate 
the establishment of a southern sea otter recovery 
implementation team as authorized under the ESA and the 
creation of a peer-reviewed, merit-based process to award 
competitive grants for: (1) research regarding the major 
stressors on southern sea otters; and (2) projects assisting in 
the recovery of southern sea otter populations.

                          Legislative History

  Senator Boxer introduced S. 1748 on October 1, 2009. Senator 
Feinstein is a cosponsor of the legislation. The bill was 
referred to the Committee on Commerce, Science, and 
Transportation on October 29, 2009. A companion bill, H.R. 556, 
was introduced by Rep. Sam Farr of California on January 15, 
2009, and was passed by the House of Representatives on July 
28, 2009.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 1748--Southern Sea Otter Recovery and Research Act

    Summary: S. 1748 would authorize the appropriation of $5 
million annually over the 2011-2016 period for the Fish and 
Wildlife Service and the United States Geological Survey to 
conduct research and recovery programs affecting southern sea 
otters along the coast of California. Assuming appropriation of 
the authorized amounts, CBO estimates that carrying out the 
program would cost $20 million over the next five years and an 
additional $10 million after 2015. Enacting the bill would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures would not apply.
    S. 1748 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 S. 1748 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--
                                                             ---------------------------------------------------
                                                               2011    2012    2013    2014    2015    2011-2015
----------------------------------------------------------------------------------------------------------------
                                  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 S. 
1748 will be enacted near the end of fiscal year 2010 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: S. 
1748 contains no intergovernmental or private-sector mandates 
as defined in UMRA and would impose no costs on state, local, 
or tribal governments.
    Previous CBO estimate: On June 16, 2009, CBO transmitted a 
cost estimate for H.R. 556, the Southern Sea Otter Recovery and 
Research Act, as ordered reported by the House Committee on 
Natural Resources on June 10, 2009. H.R. 556 and S. 1742 are 
similar but would authorize appropriations for different years. 
The CBO cost estimates reflect this difference.
    Estimate prepared by: Federal Costs: Martin von Gnechten; 
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.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  S. 1748 would establish a program of research, recovery, and 
other activities to provide for the recovery of the southern 
sea otter, which has been listed as threatened under the ESA 
since 1977, and therefore also deemed to be ``depleted'' under 
the MMPA. The program that would be established under the bill 
would deal solely with the recovery of the southern sea otter.

                            ECONOMIC IMPACT

  The bill would authorize annual appropriations of $5 million 
for each of fiscals years 2010 through 2015. These funding 
levels are not expected to have an inflationary impact on the 
Nation's economy.

                                PRIVACY

  The reported bill would not have any adverse impact on the 
personal privacy of individuals.

                               PAPERWORK

  S. 1748 would not impose any new paperwork requirements on 
private citizens, businesses, or other entities.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis

Section 1. Short title
  This section would provide that this Act may be cited as the 
``Southern Sea Otter Recovery and Research Act.''
Section 2. Definitions
  This section would define the terms ``recovery and research 
program'' as ``the southern sea otter recovery and research 
program carried out under section 3(a)'' and ``Secretary'' as 
``the Secretary of the Interior, acting through the Director of 
the United States Fish and Wildlife Service and the Director of 
the United States Geologic Survey.''
Section 3. Southern Sea Otter Recovery and Research Program
  Subsection (a) of this section would direct the Secretary of 
the Interior, acting through the USFWS and the USGS to carry 
out a recovery and research program for southern sea otter 
populations along the coast of California informed by: (1) the 
USFWS Final Revised Recovery Plan for the southern sea otter; 
(2) the USFWS Research Plan for California Sea Otter Recovery, 
drafted by the Southern Sea Otter Recovery and Implementation 
Team in 2007; and (3) any other USFWS recovery, research or 
conservation plan adopted after the enactment of this Act. It 
would require that this recovery and research program include: 
(1) monitoring, analysis, and assessment of the population 
demographics, health, causes of mortality, and life history 
parameters of southern sea otters; and (2) development and 
implementation of measures to reduce or eliminate potential 
factors limiting southern sea otter populations related to 
marine ecosystem health or human activities.
  Subsection (b) of this section would require the appointment 
of a Recovery Implementation Team not later than one year after 
the date of enactment.
  Subsection (c) of this section would authorize the 
establishment of a peer-reviewed, merit-based process to award 
competitive grants for southern sea otter research, and for 
projects assisting in the recovery of southern sea otter 
populations. The Secretary would be required to establish, as 
necessary, a peer review panel to provide scientific advice and 
guidance to prioritize proposals for these grants. Research 
funded by grants made under this program may focus on: (1) 
causes of mortality; (2) demographics and natural history of 
sea otters; (3) effects and sources of poor water quality on 
sea otters and mechanisms for addressing their effects and 
sources; (4) effects and sources of infectious diseases and 
parasites; (5) limitations on food availability and impacts on 
carrying capacity; (6) interactions with fisheries and other 
human marine activities; (7) the keystone ecological role of 
sea otters, including effects of sea otter predation, 
especially how this impacts human welfare, health and ecosystem 
services; and (8) emergency response and contingency plans. 
Recovery projects funded with grants made under this program 
may include projects that (1) protect and recover southern sea 
otter populations; (2) reduce, mitigate, or eliminate potential 
human-caused factors that limit population growth (such as 
habitat degradation, factors that cause mortality, compromise 
health, or factors restricting distribution or abundance); or 
(3) implement emergency response and contingency plans.
  Subsection (d) of this section would require a report within 
one year after the date of enactment on (1) the status of sea 
otter populations; (2) the implementation of the recovery and 
research program and grant program; and (3) any relevant formal 
ESA consultation. It would require a second report within two 
years after the date of enactment and every five years 
thereafter, in consultation with the southern sea otter 
recovery and implementation team, that includes: (1) an 
evaluation of health, causes of mortality and interactions with 
California coastal marine ecosystems; (2) an evaluation of 
actions taken for the improvement of sea otter health or 
habitat, or reduction of mortality; (3) recommendations to 
further improve sea otter and California coastal marine 
ecosystem health and reduce sea otter mortality; and (4) 
funding recommendations.
Section 4. Authorization of appropriations
  This section would authorize $5,000,000 for each of fiscal 
years 2010 through 2015, and would cap 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 provides that the Act would terminate on the 
date that the Secretary publishes a determination that the 
southern sea otter be should be removed from ESA listing.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, the Committee states that the bill as 
reported would make no change to existing law.

                                  
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